ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DARREL K. DIAMOND JEFFREY A. MODISETT
Delphi, Indiana Attorney General of Indiana
Deputy Attorney General
CHARLES RAY WEIDA III, )
vs. ) No. 08A02-9706-CR-351
STATE OF INDIANA, )
OPINION - FOR PUBLICATION
II. Whether the evidence was sufficient to support Weida's conviction.
III. Whether Weida was subjected to an impermissible double enhancement
of his sentence.
IV. Whether the trial court properly instructed the jury concerning its duty
to determine the law.
V. Whether the trial court properly enhanced Weida's sentence.
Indiana State Trooper Curt Dittmaier was dispatched to the scene. There, he
discovered Weida's truck in the ditch, Farrell in the driver's seat, and Weida in the passenger
seat. Farrell told Officer Dittmaier that he was not driving the truck when it went into the
ditch. When Officer Dittmaier asked Weida what happened, Weida admitted driving the
truck. As Officer Dittmaier spoke with Weida, he noticed that Weida had difficulty
removing his driver's license from his wallet, had slurred speech, had bloodshot and watery
eyes, and smelled strongly of alcoholic beverages. Officer Dittmaier also noticed two open
beer cans on the floor of the truck.
Because it was raining very hard, Officer Dittmaier took Weida to the county jail to administer field sobriety tests. Weida exhibited poor balance as he walked into the jail. Officer Dittmaier asked Weida to perform two different field sobriety tests, both of which Weida failed. Officer Dittmaier then told Weida he had probable cause to believe that Weida was intoxicated and informed Weida of Indiana's Implied Consent Law. Weida agreed to submit to a chemical breath test which revealed that he had a blood alcohol content of .22.
Weida was charged with operating while intoxicated as a Class A misdemeanor and, in a separate charging information, with operating while intoxicated as a Class D felony based upon the existence of a qualifying prior conviction. Weida was also charged as an habitual substance offender. In a bifurcated proceeding, a jury convicted Weida as charged. The trial court sentenced Weida to two years on the D felony charge, enhanced by three years based upon the habitual substance offender finding, for a total sentence of five years. Weida appeals.
We acknowledge Weida's argument distinguishing between a qualitative and a
quantitative standard for proving the corpus delicti. The evidence here satisfies either
standard. Although Weida advances several hypothetical situations that may provide
alternative explanations for Weida's truck ending up in the ditch, the evidence supports the
reasonable inference that an intoxicated person drove it there. This is all that is required to
prove the corpus delicti and render Weida's admission to driving the truck admissible. See
id. at 442, 404 N.E.2d at 1351 (although circumstances do not exclude hypothesis of non-
criminal cause for injuries, corpus delicti established by circumstances which are consistent
with and give rise to reasonable inference that crime occurred).
establish that a trier of fact could reasonably conclude that the defendant was guilty beyond
a reasonable doubt. Boushehry v. State, 648 N.E.2d 1174, 1176 (Ind. Ct. App. 1995).
The evidence establishes that the accident was reported at 9:16 p.m. and that Officer Dittmaier arrived on the scene five to seven minutes later. Officer Dittmaier had driven through the area about one hour earlier and not seen the vehicle. The breath test was administered to Weida at the jail at 10:09 p.m. This evidence establishes that less than three hours elapsed between the accident and the administration of the breath test that revealed Weida's .22 blood alcohol level. Under such circumstances, intoxication at the time the person operated the vehicle may be presumed. IC 9-30-6-2, -15. See also Thompson v. State, 646 N.E.2d 687, 692-93 (Ind. Ct. App. 1995), trans. denied. Although Weida argues that the evidence permits inferences that Weida was not intoxicated at the time he operated the vehicle, it was for the jury to weigh the evidence and draw any inferences. We will not disturb the jury's conclusions.
In Freeman, our supreme court held that the legislature did not intend for a defendant
to be punished under both IC 9-30-5-3 (operating while intoxicated as a Class D felony) and
IC 35-50-2-10 (habitual substance offender). Because IC 9-30-5-3 was the more specific of
the two statutes, the court held that it was the only punishment to which a defendant may be
subjected. Id. at 71. In a companion case, the supreme court relied on Freeman and stated
that "[i]n the absence of clear legislative language to the contrary, such double enhancement
cannot be permitted." Devore v. State, 657 N.E.2d 740, 742 (Ind. 1995).
Freeman and Devore were decided in 1995 and were based upon IC 35-50-2-10 and its broad definition of "substance offense" as any "Class A misdemeanor or Class D felony involving the possession, use, abuse, delivery, transportation, or manufacture of alcohol or drugs." Freeman, 658 N.E.2d at 69-70. In 1996, the Indiana General Assembly amended the statutory definition of substance offense by adding the language: "The term includes an offense under IC 9-30-5 . . . ." Pub. L. No. 97-1996, § 5 and Pub. L. No. 96-1996, § 8. This is the clear legislative language found absent in Freeman and Devore. See Jones v. State, 457 N.E.2d 231, 234 (Ind. Ct. App. 1983) (discussing amendment to definition of dwelling in burglary statute and noting that legislative amendment to statute that has been construed by courts is presumed to be response to such appellate decisions). See also Haymaker v. State, 667 N.E.2d 1113, 1115 (Ind. 1996) (noting amendment to IC 35-50-2-10 and declaring that "effective July 1, 1996, prior convictions under I.C. 9-30-5 (operating a vehicle while intoxicated) will be available as predicate offenses for habitual substance offender
enhancements."). Given the statutory amendment, the double enhancement of Weida's
sentence was proper.
Record at 56. Weida recognizes that Indiana courts have approved a form of this instruction
on many occasions. See, e.g., Johnson v. State, 518 N.E.2d 1073, 1076 (Ind. 1988); Jackson
v. State, 657 N.E.2d 131, 135 (Ind. Ct. App. 1995), abrogated on other grounds by Winegeart
v. State, 665 N.E.2d 893 (Ind. 1996). Nonetheless, Weida argues that we should reexamine
the instruction in light of Price v. State, 622 N.E.2d 954 (Ind. 1993). We see nothing in Price
that warrants changing existing precedent concerning the challenged instruction.
years. IC 35-50-2-7 (one and one-half years is presumptive term for Class D felony). See
Scheckel v. State, 620 N.E.2d 681, 685 (Ind. 1993) (ineffectiveness of previous rehabilitative
treatment is valid aggravating factor); Schick v. State, 570 N.E.2d 918, 925 (Ind. Ct. App.
1991) (continued alcohol abuse is valid aggravating factor), trans. denied.
FRIEDLANDER, J., concurs.
SULLIVAN, J., concurs in part and dissents in part with separate opinion.
COURT OF APPEALS OF INDIANA
CHARLES RAY WEIDA III, )
vs. ) No. 08A02-9706-CR-351
STATE OF INDIANA, )
SULLIVAN, Judge, concurring in part and dissenting in part
I fully concur with respect to Parts I, II, IV, and V. However, I dissent with respect
to Part III.
In my view, Freeman v. State (1995) Ind., 658 N.E.2d 68, and Devore v. State (1995) Ind., 657 N.E.2d 740, remain viable as controlling authority, notwithstanding the 1996 amendment of I.C. 35-50-2-10. See also Morphew v. State (1996) Ind.App., 672 N.E.2d 461. By adding offenses under IC. 9-30-5, embracing all of the numerous offenses set forth in that Chapter, I.C. 35-50-2-10 was made broader not more specific. The statutory scheme reflected by I.C. 9-30-5 remains the more specific of the two. Furthermore, if one focuses upon I.C. 9-30-5-3, with which we are here concerned, it is apparent that the "previous
conviction" component renders that particular provision even more specific and detailed with
regard to the overall statutory scheme for punishment.
For this reason, I would reverse the habitual substance offender enhancement and remand for modification of the sentence to reflect only the sentence of two years, with one year suspended, for the Class D felony.
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