Attorneys for Appellant Attorneys for Appellee
Frederick Vaiana Steve Carter
Indianapolis, Indiana Attorney General of Indiana
Andrew A. Kobe
Deputy Attorney General
Indiana Supreme Court
Appellant (Defendant below),
State of Indiana,
Appellee (Plaintiff below).
Appeal from the Hamilton Superior Court, No. 29D04-0012-CM-7823
The Honorable J. Richard Campbell, Judge
On Petition To Transfer from the Indiana Court of Appeals, No. 29A05-0211-CR-554
January 15, 2004
Robert Henke was charged in Hamilton Superior Court with operating a vehicle while
intoxicated, a Class A misdemeanor; operating a vehicle with a blood alcohol content
of .15 or more, a Class A misdemeanor; and operating a vehicle with
a blood alcohol content of .08 or more, a Class C misdemeanor.
All charges were based on Henkes driving in the eastbound lanes of 96th
Street where that street forms the boundary between Marion and Hamilton Counties.
The parties agree for the purposes of this appeal that the eastbound lanes
are in Marion County and that Henke drove only in Marion County.
Indiana Code section 35-32-2-1(i) (2000) provides for venue in either county when an
offense is committed on a highway sharing the common border. Henke moved
to dismiss on the ground that the statute was unconstitutional as applied to
him. Henke argued that when the evidence is clear that the defendant
never crossed the border into another county, the Indiana Constitution limits venue to
the county where driving occurred. The trial court denied the motion, holding
that the venue statute conferred venue on Hamilton County. On interlocutory appeal,
the Court of Appeals reversed, relying upon its opinion in
Baugh v. State,
781 N.E.2d 1141 (Ind. Ct. App. 2002), which involved virtually identical facts.
In Baugh, the Court of Appeals agreed that the portion of the venue
statute granting concurrent jurisdiction could not constitutionally confer venue over crimes where the
evidence pointed to only one county as the location of the offense.
today, Baugh v. State, __ N.E.2d __ (Ind. 2004),
we hold that concurrent venue is constitutional for offenses committed by operating a
vehicle on a highway forming the boundary between two counties. We grant
transfer, and for the reasons given in Baugh, affirm the trial court in
this interlocutory appeal and remand for proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN, and RUCKER, JJ., concur.