Mathias, J.
Following a jury trial in Fayette Superior Court, Jordan B. Wadle (“Wadle”) was convicted of Level 3 felony leaving the scene of an accident, Level 5 felony operating a vehicle while intoxicated (“OWI”) causing serious bodily injury, Level 6 felony OWI endangering a person, and Class C misdemeanor operating a vehicle with an alcohol concentration equivalent (“ACE”) of 0.08 or more. On appeal, Wadle contends that his convictions for leaving the scene of an accident and driving while intoxicated constitute impermissible double jeopardy.
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On May 16, 2018, the trial court sentenced Wadle as follows: Count II, sixteen years, with two years suspended to probation; Count III, six years, with two years suspended to probation; Count IV, two and one-half years, with two years suspended to probation; and Count V, one year. The court ordered all sentences to be served concurrently. …
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… Article 1, Section 14 of the Indiana Constitution provides that “[n]o person shall be put in jeopardy twice for the same offense.” In Richardson v. State, 717 N.E.2d 32, 49 (Ind. 1999), our supreme court held that “two or more offenses are the ‘same offense’ in violation of Article I, Section 14 of the Indiana Constitution, if, with respect to either the statutory elements of the challenged crimes or the actual evidence used to convict, the essential elements of one challenged offense also establish the essential elements of another challenged offense.” (emphases in original).
Wadle admits that his convictions do not amount to double jeopardy under the “statutory elements” test but contends that his convictions do amount to double jeopardy under the Richardson “actual evidence” test. Under the actual evidence test, a defendant must demonstrate a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish all the essential elements of a second challenged offense. Singh v. State, 40 N.E.3d 981, 986 (Ind. Ct. App. 2015), trans. denied, (citing Richardson, 717 N.E.2d at 53). …
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In the present case, Wadle was convicted of leaving the scene of an accident. … In addition, if the accident results in injury to another person, the operator shall also provide reasonable assistance to the injured person, as directed by law enforcement or medical personnel and give notice, or ensure that someone else gives notice, as soon as possible after the accident to local police, sheriff’s department, state police, or 911 operators. … A person who knowingly or intentionally fails to comply with these requirements commits a Class B misdemeanor. … However, the offense is “a Level 3 felony if the operator knowingly or intentionally fails to stop or comply with subsection (a) during or after the commission of the offense of operating while intoxicated causing serious bodily injury . . . .” … (emphasis added).
Here, pursuant to this statute, Wadle’s conviction for leaving the scene of an accident was elevated to a Level 3 felony because he fled the scene of an accident after having committed the offense of OWI causing serious bodily injury. He was also convicted of OWI causing serious bodily injury. This, Wadle claims, violated the actual evidence test. … Wadle argues that if the evidentiary facts supporting the elevation also establish all of the elements of another crime, both convictions cannot stand.
There is support for Wadle’s position in case law from our supreme court. See Wieland v. State, 736 N.E.2d 1198, 1206 (Ind. 2000) (agreeing with State’s concession that conviction for conspiracy to commit robbery and robbery, both elevated to Class A felonies based upon death of victim, could not stand when victim’s death also established elements of felony murder); …
Based upon the holding of these cases, we conclude that the actual evidence test is met, and double jeopardy established, where the evidence establishing the elevation of one or more convictions is also used to establish all the elements of another conviction. And under this analysis, Wadle’s convictions for both Level 3 felony leaving the scene of an accident and Level 5 felony OWI causing serious bodily injury constitute double jeopardy because the evidence establishing the elements of the elevation of the conviction for leaving the scene (committing the offense of OWI causing serious bodily injury) was the same evidence used to establish the elements of his conviction for OWI causing serious bodily injury.
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In addition to the actual evidence test, Indiana courts have also “long adhered to a series of rules of statutory construction and common law that are often described as double jeopardy, but are not governed by the constitutional test set forth in Richardson.” …
Here, the elevation of Wadle’s leaving the scene conviction was imposed for the very same behavior or harm as another crime for which Wadle was convicted. That is, the elevation of his conviction for leaving the scene of an accident and his conviction for OWI causing serious bodily injury were both based on the same act of Wadle striking Charles with his car while driving drunk. This violates our common-law prohibitions against double jeopardy.
The same is true for Wadle’s convictions for OWI endangering a person and operating a vehicle with an ACE of 0.08 or more, which were also based on same act of drunken driving. …
We therefore conclude that Wadle’s convictions for Level 3 felony leaving the scene of an accident, Level 5 felony OWI causing serious bodily injury, Level 6 felony OWI endangering a person, and Class A misdemeanor operating a vehicle with an ACE of 0.08 or more are impermissible under Indiana’s common-law double jeopardy rules. …
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When two convictions are determined to constitute double jeopardy, a reviewing court may remedy the violation by reducing either conviction to a less serious form of the same offense, if doing so will eliminate the violation, or by vacating one of the convictions. …
Here, we reverse Wadle’s convictions for OWI causing serious bodily injury, OWI endangering a person, operating a vehicle with an ACE of 0.08 or more, and we remand with instructions that the trial court vacate the judgments of conviction and sentences entered on these counts. This eliminates any double jeopardy issues with these convictions and the conviction for leaving the scene of an accident while keeping Wadle’s sentence at sixteen years, with two years suspended to probation. This leaves in place Wadle’s conviction and sentence for Level 3 felony leaving the scene of an accident.
Affirmed in part, reversed in part, and remanded for proceedings consistent with this opinion.
Vaidik, C.J., and Crone, J., concur