Kovats v. State

• Decision Date: 07 February 2013
• Docket Number: No. 15A01–1205–CR–224.,15A01–1205–CR–224.
• Citation: 982 N.E.2d 409
• Parties: Christina M. KOVATS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

982 N.E.2d 409

Christina M. KOVATS, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 15A01–1205–CR–224.

Court of Appeals of Indiana.

Feb. 7, 2013.

Leanna Weissmann, Lawrenceburg, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Karl M. Scharnberg, Chandra K. Hein, Deputy Attorneys General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MATHIAS, Judge.

Christina M. Kovats (“Kovats”) was convicted in Dearborn Superior Court of Class B felony neglect of a dependent, Class D felony operating a vehicle while intoxicated (“OWI”), Class D felony resisting law enforcement, and Class D felony criminal recklessness. Kovats appeals and presents three issues, which we reorder and restate as:

I. Whether the trial court should have vacated the judgments of conviction on the Class D felony counts due to double jeopardy concerns;

II. Whether the trial court abused its discretion by considering the fact that the passenger in the vehicle Kovats was driving died shortly after sustaining injuries in the accident caused by Kovats's intoxication as an aggravating factor in sentencing; and

III. Whether Kovats's twenty-year sentence is inappropriate in light of the nature of the offense and the character of the offender.

Concluding that merging already-entered judgments on Kovats's convictions for Class D felony resisting law enforcement and criminal recklessness was insufficient to remedy the double jeopardy issues presented by convicting Kovats on these convictions, we reverse Kovats's convictions thereon and remand with specific instructions. We also conclude that Kovats's maximum twenty-year executed sentence is inappropriate, and we exercise our constitutional authority to revise her sentence to fifteen years executed.

Facts and Procedural History

Kovats worked as a home healthcare nurse and was hired to look after eighty-nine-year-old N.C., who had recently suffered a stroke. On the evening of October 28, 2011, Kovats was driving N.C. home from a weekly social event that N.C. liked to attend when she stopped to fuel her car. Kovats then drove off from the gas station without paying for gasoline and subsequently fled from an Indiana State Police Trooper who tried to stop her for her theft of the gasoline. During the ensuing chase, Kovats accelerated to speeds between 102 and 116 miles per hour. She also passed several cars in a no-passing zone. Kovats eventually lost control of her car and drove across the lane of oncoming traffic and into a ditch, narrowly missing a car transporting children. N.C. was seriously injured in the wreck and had to be cut from the car, all the while screaming and moaning in pain.

N.C. was transported to a nearby hospital, where she was still moaning in pain. She also had bruises and bumps on her head, a laceration on her right hand, and was suffering from abdominal pain. She had fragments of metal and plastic embedded in her face, and her leg had swollen to such an extent that blood and lymphatic fluid were leaking from her skin. In addition, one of her fingers was almost torn off of her hand. N.C. was on a regimen of blood thinner, so the physician at the local hospital feared she might have internal bleeding; N.C. was therefore transferred to the trauma center at the University of Cincinnati Hospital. On a ten-point scale, N.C.'s pain was assessed as a ten. From the time of the accident until her death six weeks later, N.C. suffered “horrendously.” Tr. p. 791.

After the accident, Kovats's blood tested positive for oxymorphone at a concentration of 29.6 ng/mL. For reference, a therapeutic range for a patient is usually 1–5 ng/mL. At trial, evidence was presented that oxymorphone is approximately eight to fifteen times more potent than morphine or heroin.

On November 18, 2011, the State charged Kovats with Class B felony neglect of a dependent, Class D felony operating a vehicle while intoxicated, Class D felony resisting law enforcement, and Class D felony criminal recklessness. Following a four-day jury trial, Kovats was found guilty as charged. The trial court entered judgment of conviction on the jury verdicts, but at the sentencing hearing “merged” the Class D felony convictions into the conviction for Class B felony neglect of a dependent and sentenced Kovats to twenty years incarceration. However, the trial court did not affirmatively vacate the judgments entered on the merged convictions. Kovats now appeals.¹

I. Double Jeopardy

Kovats claims that the trial court erred when it merged her convictions on Counts II, III, and IV into Count I for purposes of sentencing instead of explicitly vacating the judgments previously entered on those convictions. Specifically, she claims that conviction on Class B felony neglect of a dependent causing serious bodily injury and all of the Class D felony counts, two of which were also elevated by, or based on, the same serious bodily injury, constituted double jeopardy.

Kovats was found guilty of Class B felony neglect of a dependent resulting in serious bodily injury, Class D felony OWI causing serious bodily injury, and Class D felony criminal recklessness for inflicting serious bodily injury on N.C. It is apparent that conviction on all of these counts, all based on the same serious bodily injury, was improper. See Deloney v. State, 938 N.E.2d 724, 730 (Ind.Ct.App.2010)(noting that conviction of two crimes, both of which were elevated based upon the same bodily injury, subjects the defendant to double jeopardy)(citing Smith v. State, 872 N.E.2d 169, 176 (Ind.Ct.App.2007)); Bunch v. State, 937 N.E.2d 839, 847–48 (Ind.Ct.App.2010) (noting rule that multiple crimes may not be enhanced by the same bodily injury)(citing Pierce v. State, 761 N.E.2d 826, 830 (Ind.2002)).

Kovats's conviction for criminal recklessness was based entirely on the fact that Kovats had recklessly inflicted serious bodily injury on N.C. See Appellant's App. p. 41. We therefore reverse Kovats's convictionfor criminal recklessness and instruct the trial court to vacate this conviction on remand.

With regard to the conviction for Class D felony OWI resulting in serious bodily injury, more discussion is required. Generally, OWI as a result of being under the influence of a controlled substance is a Class C misdemeanor. SeeInd.Code § 9–30–5–2(a) (“a person who operates a vehicle while intoxicated commits a Class C misdemeanor.”); Ind.Code § 9–13–2–86 (defining “intoxicated” as being under the influence of a controlled substance such that there is “an impaired condition of thought and action and the loss of normal control of a person's faculties.”). However, if a person operates a vehicle while intoxicated and does so in a manner that endangers a person, the offense is a Class A misdemeanor. SeeI.C. § 9–30–5–2(b).

Kovats was convicted of OWI as a Class D felony pursuant to Indiana Code section 9–30–5–4(a), which provides in relevant part that “[a] person who causes serious bodily injury to another person when operating a vehicle ... with a controlled substance listed in schedule I or II of IC 35–48–2 or its metabolite in the person's body; or ... while intoxicated ... commits a Class D felony.” Thus, the offenses of OWI as a Class C misdemeanor and Class A misdemeanor are lesser included offenses of Class D felony OWI causing serious bodily injury. State v. Keith, 482 N.E.2d 751, 756 (Ind.Ct.App.1985). But conviction of OWI as a Class A misdemeanor, which does not require proof of serious bodily injury, presents no double jeopardy problem in conjunction with a conviction for Class B felony neglect of a dependent causing serious bodily injury.

Therefore, the appropriate cure to the double jeopardy problem present in Kovats's convictions for Class D felony OWI causing serious bodily injury and Class B felony neglect of a dependent causing serious bodily injury is to enter a conviction for Class A misdemeanor OWI. See Orta v. State, 940 N.E.2d 370, 377 (Ind.Ct.App.2011) (“When two convictions are found to contravene double jeopardy principles, 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.”), trans. denied. We therefore reverse Kovats's conviction for Class D felony OWI and remand with instructions that the trial court vacate the judgment of conviction for Class D felony OWI and enter a judgment of conviction for the lesser-included offense of Class A misdemeanor OWI.

Kovats's conviction for resisting law enforcement was not elevated due to serious bodily injury; therefore, conviction for Class B felony neglect of a dependent and Class D felony resisting law enforcement appear to present no double jeopardy concerns. Thus, entry of a judgment of conviction on this count was not improper.

The trial court attempted to remedy any potential double jeopardy concerns by merging all of the convictions for purposes of sentencing. However, the trial court had already entered judgment of conviction on all of the jury's verdicts. Tr. p. 785. Kovats is correct that this was insufficient to cure the double jeopardy issue.

If a trial court does not formally enter a judgment of conviction on a jury verdict of guilty, then there is no requirement that the trial court vacate the “conviction,” and merger is appropriate. Townsend v. State, 860 N.E.2d 1268, 1270 (Ind.Ct.App.2007) (quoting Green v. State, 856 N.E.2d 703, 704 (Ind.2006)). However, if the trial court does enter judgment of conviction on a jury's guilty verdict, then simply merging the offenses is insufficient and vacation of the offense is required. See id.;Green, 856 N.E.2d at 704;Gregory v. State, 885 N.E.2d 697, 703 (Ind.Ct.App.2008) (where trial court entered judgments of conviction on jury's verdicts of guilty for dealing and conspiracy, then later merged the convictions for double jeopardy reasons, such merging without also vacating the conspiracy conviction was...