Weston A. James, Appellant-Defendant, v. State of Indiana, Appellee-Plaintiff. (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Weston A. James appeals from his convictions of Level 5 felony causing death when operating a motor vehicle with an alcohol concentration equivalent (ACE) of .08 or more, two counts of Level 6 felony causing serious bodily injury when operating a motor vehicle with an ACE of .08 or more, Level 6 felony operating a vehicle while intoxicated endangering a person with a passenger less than 18 years old, and Level 5 felony neglect of a dependent, after he caused a head-on collision resulting in the death of another driver and injuries to his two sons, who were passengers in his vehicle.

[2] He challenges the trial court's admission of his blood test results and the court's denial of his motion to dismiss based on the subsequent destruction of his blood sample, claiming an abuse of discretion. We disagree and affirm. He also challenges his convictions for Counts II, III, and IV as violating substantive double jeopardy. The State concedes as much, and we reverse the convictions on those grounds, and remand to the court to vacate those convictions. Therefore, we affirm in part, and reverse in part and remand.

Facts and Procedural History

[3] On the evening of November 21, 2017, James drank alcoholic beverages while bowling in his bowling league. He returned home from bowling at around 9:00 p.m. and consumed one or two more alcoholic beverages prior to going to bed at around midnight.

[4] At around 8:00 a.m. the next morning, on James’ day off from his duties as a firefighter, he drove his Cadillac SUV on a two-lane road in Grant County. His thirteen-year-old son W.J., and his three-year-old son, B.J., were passengers in the vehicle. W.J. had a basketball practice that began at 8:00 a.m., and James was running behind schedule. He planned to take W.J. to practice and to drop B.J. off at daycare prior to working out at a gym.

[5] According to eyewitness Evellen Brewer, James’ vehicle crossed the center line of the road and struck the vehicle in front of hers head on. James Bartrum was driving that vehicle, and he died from the injuries he sustained in the collision. After the collision, James’ vehicle tumbled and landed upside down in a field near the road. When the vehicle came to a rest, W.J. was hanging upside down by his seatbelt. He sustained a broken hand, a concussion, a laceration on his eyelid, a bruised lung, and scars on his legs. He had to have stitches to close the laceration to his eyelid and his hand was placed in a cast. B.J. was removed from the inverted vehicle by an officer responding to the scene. B.J. had a gaping hole in his forehead that was bleeding. He was taken to a hospital for treatment.

[6] Firefighters worked for twenty to thirty minutes to free James from his damaged vehicle before he was airlifted to Lutheran Hospital in Allen County. Indiana State Police Trooper Charles “A.J.” Coffee, who had responded to the scene, contacted the Fort Wayne Indiana State Police Post to have a trooper meet James at the hospital for a blood draw. Trooper Brad Shultz responded to the request.

[7] By the time of the jury trial in December 2023 some six years later, Trooper Shultz remembered being called to Lutheran Hospital for a blood draw, but he did not remember the specifics of this particular blood draw. So, he testified to his routine practice. He first contacts the requesting agency for a copy of the individual's BMV record. The record includes the name, date of birth, and photograph of the person being tested. Trooper Shultz takes that information sheet and a blood test kit with him to the hospital to meet up with the person being tested.

[8] The blood test kit contains two blood tubes and a toxicology analysis request form (TAR). Each tube has a label with space for the subject's name and date of birth, the date and time of the draw, the collector's initials, and the officer's initials. The TAR includes a case number, the subject's name, date of birth and gender, information about the submitting agency, the collector's name, the location, date, and time that the specimen was collected, and the name of the collection witness, among other things. Set apart in a box at the bottom of the TAR form is a message indicating that the specimens will be destroyed one year after testing unless the Indiana State Department of Toxicology (ISDT) receives written notice to retain the specimen for a longer period of time.

[9] Once at the hospital, Trooper Shultz asks hospital staff where the subject is located. He uses the information from the BMV report to identify the subject, and then, after confirming the identification information with the subject, reads Indiana's implied consent law to obtain consent for the blood draw. Shultz testified that there is always one patient in the room where the blood is drawn. When the nurse or phlebotomist enters the room, Shultz obtains that medical professional's name and includes that information on the TAR. Here, the TAR reflects that Nurse Ford Lee drew James’ blood. Trooper Shultz witnesses the blood draw, and the blood vials never leave his sight. He places the vials and TAR in the blood test kit box and seals it. He transports the sealed and completed blood test kit box to his Indiana State Police post where he creates a return address label, indicating the submitting agency, and places the box to be mailed to the ISDT. He further testified that he had no reason to believe that James’ blood draw occurred any differently than the process he had described.

[10] Shultz confirmed his signature and handwriting on State's Exhibit 39, the TAR. He also confirmed that James’ name and a date of birth was at the top of the TAR along with the time of the blood draw and the name of the person drawing the blood. The TAR also reflected that the submitting officer was Trooper Coffee, the Agency Case number was 2017-00360125, and that drug and alcohol testing was requested. The TAR reflected additional notes that pain medications were administered by the hospital staff to James prior to the draw. Trooper Shultz testified that he makes notations such as that so the test results can be accurately interpreted.

[11] ISDT Senior Forensic Scientist Cheryl Anderson testified that after the blood test kit arrives at the ISDT, an evidence technician logs the kit into the laboratory information management system where the kit is given a specific toxicology case number. The kit is refrigerated until it is handled or tested. The ISDT has an evidence description worksheet (EDW) which sets forth the chain of custody for the sample while the ISDT possesses it.

[12] Anderson testified that an EDW for James’ blood sample was created and that the EDW has the same case number as the TAR (17-10149). She testified that ISDT employee Ashley Miller created the EDW for James’ sample. The EDW showed that the labels for the blood vials included the name, date, time, collector's initials, and officer's initials. See Ex. Vol. I, p. 78 (Def. Ex. D; EDW). In a section reserved for additional notes, Miller wrote “Officer and collectors initials on tubes do not match the TAR,” but there was no more information about how the initials did not match. Tr. Vol. II, p. 26; Ex. Vol. I, p. 78 (Def. Ex. D).

[13] Anderson's report reflected that James’ blood alcohol concentration was 0.110 grams per one hundred milliliters of blood. The report included the ISDT Case number 17-10149, with an agency case number 2017-00360125. That toxicology report, State's Exhibit 41, was admitted without objection. The ISDT destroyed James’ blood samples on February 10, 2020.

[14] On January 31, 2018, the State charged James with Level 5 felony causing death when operating a motor vehicle with an ACE of .08 or more, two counts of Level 6 felony causing serious bodily injury when operating a motor vehicle with an ACE of .08 or more, Level 6 felony operating a vehicle while intoxicated endangering a person with a passenger less than 18 years old, and Level 5 felony neglect of a dependent. James’ motion to exclude the blood test results was denied as was his motion to dismiss the charges based on the destruction of evidence.

[15] A jury found James guilty as charged. On January 24, 2024, the court sentenced James to concurrent sentences as follows: six years with four years executed and two years suspended to probation for Count I, two years each for Counts II through IV, and three years for Count V.

Discussion and Decision

I. Admission of James’ Blood Test Results

[16] James argues that there was a fatal break in the chain of custody of the vials of blood, which should have rendered the evidence excludable at trial. James contends the court erred by admitting the evidence over his objection because “[w]ithout a medical professional who remembered the blood draw or followed protocol, the State failed to present a sufficient and trustworthy chain of custody.” Appellant's Br. p. 20.

[17] Our standard of review of a trial court's admission or exclusion of evidence is an abuse of discretion. Owens v. State, 246 N.E.3d 1256, 1261 (Ind. Ct. App. 2024). A trial court abuses its discretion only if its decision is clearly against the logic and effect of the facts and circumstances before the court. Delgado v. State, 246 N.E.3d 1276, 1289 (Ind. Ct. App. 2024). In reviewing the admissibility of evidence, we consider only the evidence in favor of the trial court's ruling and any unrefuted evidence in the defendant's favor. Turner v. State, 183 N.E.3d 346, 352 (Ind. Ct. App. 2022) (quoting Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006)), trans denied.

[18] Regarding chain of custody challenges generally, this Court has explained,

An adequate foundation establishing a continuous chain of custody is established if the State accounts for the evidence at each stage from its acquisition, to its testing, and to its introduction at trial. Under the chain of custody doctrine, an adequate foundation is laid when the continuous whereabouts of an exhibit is shown from the time it came into the possession of the police.

To establish a proper chain of custody, the State must give reasonable assurances that the evidence remained in an undisturbed condition. However, the State need not establish a perfect chain of custody, and once the State “strongly suggests” the exact whereabouts of the evidence, any gaps go to the weight of the evidence and not to admissibility. Moreover, there is a presumption of regularity in the handling of evidence by officers, and there is a presumption that officers exercise due care in handling their duties. To mount a successful challenge to the chain of custody, one must present evidence that does more than raise a mere possibility that the evidence may have been tampered with.

Espinoza v. State, 859 N.E.2d 375, 382 (Ind. Ct. App. 2006) (citations and quotation marks omitted).

[19] Here, we have blood, a fungible item. “For fungible items, ‘whose appearance is indistinguishable to the naked eye,’ the State bears a ‘higher burden’ to establish the chain of custody.” Boner v. State, 243 N.E.3d 354, 362 (Ind. Ct. App. 2024) (quoting Jones v. State, 218 N.E.3d 3, 9 (Ind. Ct. App. 2023), trans. denied)). “[T]he State lays a proper foundation [for fungible items] when ‘a witness is able to identify the item, ․ the item is relevant to the disposition of the case[,] ․ [and the State] provid[es] a reasonable assurance that the evidence was undisturbed as it passed from the custody of one person to the next.” ’ K.W. v. State, 216 N.E.3d 505, 516 (Ind. Ct. App. 2023) (quoting Mateo v. State, 981 N.E.2d 59, 66-67 (Ind. Ct. App. 2012), trans. denied), trans. denied. “ ‘If the State presented evidence that strongly suggests the exact whereabouts of the evidence at all times, that is sufficient.’ ” K.W., 216 N.E.3d at 516 (quoting Mateo, 981 N.E.2d at 67).

[20] On February 12, 2021, James filed a motion to suppress the results of his blood draw. He argued that “[t]he initials for the nurse that drew the blood and the initials for the separate person who submitted the blood according to the [TAR] do not match the initials of the people who initialed the tube of blood as the drawer and submitter.” Appellant's App. Vol. 2, p. 239. During the hearing on the motion to suppress, the parties and the court agreed that James’ motion was “more in the category of motion to exclude slash limine.” Tr. Vol. I, p. 4.

[21] After the hearing, the court issued its written order. Appellant's App. Vol. 3, pp. 5-10. (Order in Limine). The court observed, “James has not alleged that the State will be unable to produce witnesses at trial—including the technician who drew the blood, the officer who secured the blood and transported it to the toxicology lab, and the lab technician who did the analysis—to create a chain of custody for the blood.” Id. at 8. The court further observed, “Notably, there is no indication that the name on the blood vial, identifying the source of the blood, was not Weston James. Nor did the destruction of the blood following testing impact the integrity of the chain of custody, as the chain ended once the blood was tested.” Id. The court concluded, “At best, the discrepancies noted between the initials on the blood vial and the initials on the TAR impact the weight, not the admissibility, of the evidence. James’ request to exclude the blood analysis is denied.” Id.

[22] At trial, prior to the admission of any evidence concerning James’ blood test results, the court held a hearing outside the presence of the jury. Former ISDT employee Ashley Miller testified that she did not remember any of the details of this particular test. But she confirmed that she made the entry describing the discrepancy between the initials on the labels on the tubes of blood and the information on the TAR. Nurse Ford Lee testified that he was a nurse at Lutheran Hospital at the time James’ blood was drawn. He could not remember the specific blood draw and testified only that he did not write his name on the TAR. After hearing argument of counsel, the trial court, relying primarily on the Supreme Court's holding in Troxell v. State, 778 N.E.2d 811 (Ind. 2002), again concluded that any discrepancy between the initials on the tubes and the TAR went to the weight to be given the evidence, not its admissibility. Tr. Vol. II, p. 16; See, Troxell, 778 N.E.2d at 814 (State need not establish perfect chain of custody; must strongly suggest exact whereabouts of evidence; gaps go to weight not admissibility; presumption of regularity in officers’ handling). The trial court also stated that it “would consider that you [ ] have preserved your objections with regards to that issue ․” Tr. . Vol. II, p. 16.

[23] The evidence most favorable to the trial court's ruling establishes that Trooper Shultz confirmed James’ identification at Lutheran Hospital, took the empty vials out of the blood testing kit, completed the TAR, observed James’ blood draw, and placed the initialed vials in the testing kit. The kit was sealed and placed in the mail for delivery to the ISDT. The ISDT received the kit with the same agency case number and ISDT case number assigned to James’ blood draw. Thus, the State's evidence strongly suggested the exact whereabouts of James’ blood samples, and James has not overcome the presumption of regularity in the handling of his blood samples by Trooper Shultz. See Espinoza, 859 N.E.2d at 382-83.

[24] James relies on Baker v. State, 449 N.E.2d 1085 (Ind. 1983) to support his argument that the State was “unable to connect James to the blood that was ultimately tested because it failed to present testimony of a doctor or someone in authority present at the taking of the specimens who could attest to the chain of custody.” Appellant's Br. p. 22. In Baker, the challenged exhibit contained the conclusion that sperm was present in the sample. The Court held the exhibit was erroneously admitted in evidence because there was no witness to testify to the hearsay statements and conclusions contained in the exhibit. Baker, 449 N.E.2d at 1087-88. The Court stated that “[i]t was incumbent upon the State to present evidence of the doctor or someone in authority present at the taking of the specimens from [the victim], and to further demonstrate a chain of custody of the specimens to the laboratory where the testing was made and the conclusions drawn.” Id. Here, however, the State did present the testimony of someone in authority present at the taking of the specimens who could attest to the chain of custody, namely, Trooper Shultz.

[25] But in Baker, the other problem with the admission of the report was accepting the statements in the report as true, i.e., sperm was present in the specimen. Id. Here, the State presented testimony from the ISDT analysists who reached the conclusions contained in the toxicology report. So, this case is distinguishable from Baker for the additional reason that the analysts testified about the testing process in support of the contents of the blood test report, showing James’ blood alcohol concentration was 0.110 grams per one hundred milliliters of blood. For the chain of custody challenge in this case, though, all the State was required to show was the whereabouts of the blood vials from the time it came into possession by law enforcement. K.W., 216 N.E.3d at 516.

[26] We agree with the trial court that any discrepancies between the initials on the vials of blood and on the TAR apply to the weight to be given the evidence, not to its admissibility. James’ counsel was able to strenuously cross-examine the witnesses about their lack of memory of the specific blood draw. And counsel placed the issue of the discrepancy between the initials appearing on the vials of blood and the TAR squarely before the jury. We conclude that the trial court did not abuse its discretion by admitting the evidence and concluding that the State established an adequate chain of custody.

II. Motion To Dismiss-Destruction of Evidence

[27] James contends that the trial court abused its discretion and committed reversible error by denying his motion to dismiss the charges against him after the tubes of blood were destroyed by the ISDT. In his motion to dismiss, James argued that the State failed to preserve materially exculpatory evidence and that the destruction of the evidence violated his due process rights. See Appellant's App. Vol. 4, p. 9. The trial court disagreed and denied the motion.

[28] “The trial court's ruling on a defendant's motion to dismiss is reviewed for an abuse of discretion.” Ko v. State, 243 N.E.3d 1153, 1159 (Ind. Ct. App. 2024), trans. denied. “An abuse of discretion occurs when denial of the defendant's motion to dismiss is contrary to the facts and circumstances before the court.” Id.

[29] The TAR form explicitly states at the bottom: “Agreement for destruction of Specimens: The submitting agency agrees that the specimens submitted will be destroyed by ISDT one year after analysis is completed.” Ex. Vol. I, p. 52 (Ex. 39) (emphasis added). And the toxicology analysis report explicitly provided: “Specimens will be destroyed one year after testing unless ISDT is notified in writing to retain the specimens for a longer period of time.” Ex. Vol. I, p. 55 (Ex. 41) (emphasis added). The vials of blood in this case, which were tested December 1, 2017, were destroyed in February of 2020. Tr. Vol. I, p. 11. Despite the explicit warning and instructions on the forms regarding evidence destruction/preservation and the two additional years beyond the allotted time for retention, James contends he had no duty to request that the evidence be preserved even though he argues it was materially exculpatory evidence. Instead, he contends that duty rests with the State.

[30] “ ‘Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense.’ ” Ko, 243 N.E.3d at 1159 (quoting California v. Trombetta, 467 U.S. 479, 488 (1984)). “To determine whether a defendant's due process rights were violated by the State's failure to preserve evidence, we must first determine whether the evidence was ‘materially exculpatory’ or ‘potentially useful.’ ” Id. (quoting Pimentel v. State, 181 N.E.3d 474, 479-80 (Ind. Ct. App. 2022) (citations omitted), trans. denied).

[31] “Evidence is materially exculpatory if it ‘possesses an exculpatory value that was apparent before the evidence was destroyed’ and must ‘be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.’ ” Id. “ ‘While a defendant is not required to prove conclusively that the evidence was exculpatory, there must be some indication in the record that the evidence was exculpatory.’ ” Ko, 243 N.E.3d at 1159 (quoting Chissell v. State, 705 N.E.2d 501, 504 (Ind. Ct. App. 1999), trans. denied). “Exculpatory evidence is evidence ‘tending to establish a criminal defendant's innocence.’ ” Ko, 243 N.E.3d at 1159 (quoting State v. Durett, 923 N.E.2d 449, 453 (Ind. Ct. App. 2010) (citation omitted)). “When the State fails to preserve materially exculpatory evidence, a due process violation occurs regardless of whether the State acted in bad faith.” Ko, 243 N.E.3d at 1159.

[32] “On the other hand, evidence is merely potentially useful if ‘no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.’ ” Ko, 243 N.E.3d at 1159 (quoting Chissell, 705 N.E.2d at 504). “The State's failure to preserve potentially useful evidence does not constitute a denial of due process unless the defendant can show that the State acted in bad faith.” Ko, 243 N.E.3d at 1159.

[33] James argues that “[t]he blood vial would have played a significant role in James’ defense because of the discrepancy in the chain of custody.” Appellant's Br. p. 29. He says his “entire defense was that there was a mistake in the chain of custody and that the blood was not his.” Id. His argument continues: “At best, the State should have preserved the entire vials so the blood could be DNA tested.” Id. “In the very least, it was the State's duty to take a photograph of the labels on the vials to preserve how the initials differed.” Id.

[34] James has to argue that the destroyed evidence was materially exculpatory because he conceded at the suppression hearing that, “I don't think [the State or the ISDT] acted in bad faith. I think it was bad policy.” Tr. Vol. I, p. 44. However, the blood in the vials was not apparently exculpatory prior to its destruction. Further testing is the only way the blood evidence could potentially have exculpated James. James had several years to test the blood prior to the destruction of the vials but did not do so. And the suggestion that further testing was needed is illustrative of why the evidence was only potentially useful. Furthermore, the suggestion that photographs of the labels of the blood vials should have been taken prior to destruction, while a good idea in practice, would only have served to chip away at the weight to be given to the evidence, as opposed to exonerating James. We find no abuse of discretion in the trial court's ruling denying James’ motion to dismiss.

III. Substantive Double Jeopardy

[35] James argues that his convictions for Count II, Level 6 felony causing serious bodily injury to B.J. while operating a motor vehicle with an ACE of .08 or more (Ind. Code § 9-30-5-4(a) (2014)), Count III, Level 6 felony causing serious bodily injury to W.J. while operating a motor vehicle with an ACE of .08 or more (Ind. Code § 9-30-5-4(a) (2014)), and Count IV, Level 6 felony operating a vehicle while intoxicated endangering a person with a passenger less than 18 years of age (Ind. Code § 9-30-5-3(a)(2) (2014)), cannot stand with his conviction for Count V, Level 5 felony neglect of a dependent resulting in bodily injury (Ind. Code § 35-46-1-4 (2017)) under substantive double jeopardy principles. The State agrees with James’ argument.

[36] “Substantive double jeopardy claims come in two principal varieties: (1) when a single criminal act or transaction violates a single statute but harms multiple victims, and (2) when a single criminal act or transaction violates multiple statutes with common elements and harms one or more victims.” Wadle v. State, 151 N.E.3d 227, 247 (Ind. 2020). The second variety is implicated here.

[37] “When multiple convictions for a single act or transaction implicate two or more statutes, we first look to the statutory language itself.” Id. at 248. “If the language of either statute clearly permits multiple punishment, either expressly or by unmistakable implication, the court's inquiry comes to an end and there is no violation of substantive double jeopardy.” Id. (footnote omitted). And here, the statutes do not clearly permit multiple punishment, expressly or by unmistakable implication.

[38] “If, however, the statutory language is not clear, a court must then apply our included-offense statutes to determine statutory intent.” Id. “Under Indiana Code section 35-38-1-6, a trial court may not enter judgment of conviction and sentence for both an offense and an ‘included offense.’ ” Id. One offense is included in another if it:

(1) is established by proof of the same material elements or less than all the material elements required to establish the commission of the offense charged;

(2) consists of an attempt to commit the offense charged or an offense otherwise included therein; or

(3) differs from the offense charged only in the respect that a less serious harm or risk of harm to the same person, property, or public interest, or a lesser kind of culpability, is required to establish its commission.

Ind. Code § 35-31.5-2-168 (2012).

[39] “[W]hen assessing whether an offense is factually included, a court may examine only the facts as presented on the face of the charging instrument.” A.W. v. State, 229 N.E.3d 1060, 1067 (Ind. 2024). “This includes examining the ‘means used to commit the crime charged,’ which must ‘include all of the elements of the alleged lesser included offense.’ ” Id. (quoting Wadle, 151 N.E.3d at 251 n.30). “[W]here ambiguities exist in a charging instrument about whether one offense is factually included in another, courts must construe those ambiguities in the defendant's favor, and thus find a presumptive double jeopardy violation at Step 2.” Id. at 1069 (citation omitted). “In this event, the State can later rebut this presumption at Step 3.” Id. (footnote omitted).

[40] Counts II, III, and IV are not inherently included in Count V. In Counts II and III, the State had to establish beyond a reasonable doubt that James caused serious bodily injury to another person when operating a vehicle with an ACE of .08 or more. In Count IV, the State had to establish beyond a reasonable doubt that James, who was at least twenty-one years old, operated a vehicle in a manner that endangered a person and at least one passenger was younger than eighteen years old. In Count V, however, the State had to prove beyond a reasonable doubt that James had the care of a dependent when he knowingly or intentionally placed the dependent in a situation that endangered the dependent's life or health, resulting in bodily injury. Counts II, III, and IV are not inherently included in Count V because each offense contains at least one element that the other does not. Put differently, Indiana Code section 9-30-5-4 requires an ACE of .08 or more; Indiana Code section 9-30-5-3(a)(2) requires a passenger; and Indiana Code section 35-46-1-4(b) requires the care of a dependent.

[41] Nevertheless, Counts II, III, and IV are included in Count V as charged when ambiguities are resolved in James’ favor. For example, the State alleged that James committed Counts II and III by causing serious bodily injury to B.J. (Count II) and W.J. (Count III) when operating a vehicle with an ACE of .08 or more. Appellant's App. Vol. 2, p. 56. The State alleged in Count IV that James “operate[d] a vehicle while intoxicated in a manner that endangers a person, with at least one passenger less than eighteen (18) years of age, to-wit: B.J., age three (3) and W.J. age thirteen (13)[.]” Id. at 57. The State alleged in Count V that James put B.J. and W.J. in a dangerous situation: “with B.J. and W.J. as passengers in the vehicle he was operating, [he] did operate the vehicle while impaired and/or in a reckless manner by driving left of center into the path of an oncoming vehicle, resulting in serious bodily injury to B.J. and/or W.J.” Id. Therefore, the means used to commit the crime alleged in Count V covered all of the conduct alleged in Counts II, III, and IV, when all ambiguities are resolved in James’ favor.

[42] Moving to step three of the analysis, we must “examine the facts underlying those offenses” to determine “whether the defendant's actions were ‘so compressed in terms of time, place, singleness of purpose, and continuity of action as to constitute a single transaction.’ ” Wadle, 151 N.E.3d at 249 (quoting Walker v. State, 932 N.E.2d 733, 735 (Ind. Ct. App. 2010)). The State concedes they were. “The State presented evidence about five seconds when James was intoxicated, with an ACE of .11, drove left of center with two of his children in his SUV, and crashed into another SUV, injuring his children.” Appellee's Br. p. 21. Consequently, we remand this matter to the trial court with instructions to vacate James’ convictions for Counts II, III, and IV because they violate substantive double jeopardy. James’ convictions for Counts I and V stand.

[43] Affirmed in part, reversed and remanded in part.

Crone, Senior Judge.

Judges Foley and DeBoer concur. Foley, J., and DeBoer, J., concur.