COA affirms convictions state conceded as double jeopardy

State attorneys who agreed with a defendant’s argument that his felony drunken-driving and misdemeanor reckless driving convictions violated double-jeopardy protections were wrong, the Indiana Court of Appeals ruled Friday, affirming both convictions.

Brooks Berg argued his convictions were based on the same evidence that was presented to the jury and thus a violation of his rights under the actual evidence test under Richardson v. State, 717 N.E.2d 32 (Ind. 1999). The state conceded this issue.

“We reject Berg’s argument and the State’s concession, and we hold that the trial court did not violate Berg’s rights under the Richardson actual evidence test,” Judge Edward Najam wrote in Brooks Berg v. State of Indiana, 32A01-1504-CR-127.

Berg was arrested in June 2014 in Plainfield after police tried to stop him for speeding. He led officers on a chase at speeds up to 130 mph, according to the record. The pursuit ended when Berg lost control of the vehicle, which careened into a ditch, hit a tree, flipped and came to a stop on its roof.

A jury convicted Berg on all counts: Class D felony counts of operating a vehicle while intoxicated and resisting law enforcement and Class B misdemeanor reckless driving; and adjudication as a habitual substance offender. He was sentenced to eight years in the Department of Correction.

In affirming Berg’s convictions, Najam wrote, “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. … (A)t 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.

"In other words, the evidentiary footprint underlying both of Berg’s offenses was not the same," the panel held. “Berg’s reckless-driving conviction was based on the speed with which he drove his vehicle.”