Najam, J.
Brooks Berg appeals his convictions for operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. [Footnote omitted.] Berg raises a single issue for our review, namely, whether the State violated his double jeopardy rights under Richardson v. State, 717 N.E.2d 32 (Ind. 1999), when it used the evidence it had presented to the jury to support the reckless-driving charge to demonstrate the endangerment element of the operating-while-intoxicated charge. The State concedes on appeal that this use of the evidence resulted in a violation of Berg’s rights under the Richardson actual evidence test.
We reject Berg’s argument and the State’s concession, and we hold that the trial court did not violate Berg’s double jeopardy rights when it entered its judgment of conviction against him for both operating while intoxicated, as a Class D felony, and reckless driving, as a Class B misdemeanor. Thus, we affirm Berg’s convictions.
….
According to Berg, the State presented the same evidence of unsafe driving to establish both “the endangerment element for . . . operating while intoxicated” [as a Class A misdemeanor, which was enhanced to a Class D felony because of a previous OWI conviction within 5 years] and the offense of reckless driving. In its brief on appeal, the State concedes that “the facts that constituted the entire offense of reckless driving . . . is the same evidence that the State relied upon in proving that [Berg’s] operation of the vehicle while intoxicated endangered others.” The State then agrees that this case “should be remanded.”
Both Berg’s argument on appeal and the State’s concession are premised on a misunderstanding of Richardson. The Richardson test cannot be met where, as here, one offense required evidence of intoxication and the other offense did not. Applying the actual evidence test “to all the elements of both offenses,” at least part of the evidentiary basis for the State’s charge that Berg had operated a vehicle while intoxicated was wholly independent of the evidentiary basis underlying its charge that Berg had committed an act of reckless driving. Garrett [v. State], 992 N.E.2d [710,] 719 [(Ind. 2013)]. In particular, the State’s evidentiary facts establishing the offense of reckless driving established the element of endangerment for the offense of operating while intoxicated, as a Class D felony, but that evidence did not establish all of the essential elements of operating while intoxicated. See Spivey [v. State], 761 N.E.2d [831,] 833 [(Ind. 2002)]. In other words, the evidentiary footprint underlying both of Berg’s offenses was not the same. Accordingly, there is no reasonable possibility that the jury “latched on to exactly the same facts for both convictions.” Lee [v. State], 892 N.E.2d [1231,] 1236 [(Ind. 2002)].
… [Nor was] the behavior underlying Berg’s conviction for reckless driving … “the very same behavior” underlying his conviction for operating while intoxicated, as a Class D felony. Rather, Berg’s reckless-driving conviction was based on the speed with which he drove his vehicle. His operating-while-intoxicated conviction, on the other hand, was enhanced to a Class D felony based on the fact that he had a prior operating-while-intoxicated conviction within the preceding five years. See Burp v. State, 672 N.E.2d 439, 440 (Ind. Ct. App. 1996). And that Class D felony, habitual offender enhancement applies when the defendant has committed either a Class C misdemeanor or a Class A misdemeanor offense of operating while intoxicated. I.C. § 9-30-5-3(a)(1). Thus, there is no merit to the suggestion on appeal that Berg’s underlying Class A misdemeanor enhancement should be reduced to a Class C misdemeanor because the Class D felony enhancement applies regardless of the level of the underlying offense. Accordingly, Berg’s conviction for a Class D felony, and his right to be free from double jeopardy, is not implicated on these facts.
In sum, the trial court’s entry of judgment did not violate Berg’s double jeopardy rights, whether under Richardson or our common law, and we affirm his convictions.
Affirmed.
Kirsch, J., and Barnes, J., concur.