Opinion
23A-CR-2463
05-23-2024
Charles R. Heath, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Alice B. Blevins Bartanen Law Office, LLC Salem, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Washington Superior Court The Honorable Dustin L. Houchin, Judge Trial Court Cause No. 88D01-2305-CM-330
ATTORNEY FOR APPELLANT
Alice B. Blevins Bartanen Law Office, LLC Salem, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita Attorney General of Indiana
Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana
Bailey and Crone Judges concur.
MEMORANDUM DECISION
Pyle, Judge.
Statement of the Case
[¶1] Charles Heath ("Heath") appeals his conviction, following a jury trial, of Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15 He argues that there is insufficient evidence to support his conviction. Concluding that there is sufficient evidence to support Heath's conviction, we affirm the trial court's judgment.
[¶2] We affirm.
Issue Whether there is sufficient evidence to support Heath's conviction.
Facts
[¶3] On May 17, 2023, Heath drank beer and homemade moonshine before driving his truck to the Dollar General Store ("the store") to purchase a box fan. On his way home from the store, Heath drove his truck into a grassy area near a little league baseball field and hit a picnic table. Heath's truck moved the picnic table eight to twelve inches. As Heath backed up his truck, children playing on a nearby playground approached the truck to see what was happening.
Baseball coach Adam Tripp ("Tripp") yelled at Heath to stop and approached Heath's truck. Tripp, who was not sure whether Heath was experiencing a medical emergency or was intoxicated, asked Heath if he knew where he was, if he knew what he was doing, and if he was okay. Heath told Tripp to "mind [his] effing business." (Tr. Vol. 2 at 30). As Heath pulled out of the grassy area at approximately 7:20 p.m., Tripp took a photograph of Heath's license plate and called 911. Heath lived three to five minutes from the baseball field.
[¶4] At 8:05 p.m., two Washington County Sheriff's Department deputies were dispatched to Heath's home following a Life Alert medical call. The deputies found Heath lying face down on his driveway in front of a ramp leading to his residence. Heath told one of the deputies that he had been drinking beer and moonshine before going to the store to buy a box fan. The deputies noticed a box fan and a bottle with the homemade moonshine on the ground next to Heath.
[¶5] Shortly thereafter, Washington County Sheriff's Department Lieutenant Wayne Blevins ("Lieutenant Blevins") arrived at Heath's home. Lieutenant Blevins noticed a strong odor of alcohol emanating from Heath. In addition, Lieutenant Blevins noticed that Heath's eyes were glassy and bloodshot and his speech was slurred. After Lieutenant Blevins had read Heath the implied consent law, Heath agreed to take a breath test. Lieutenant Blevins transported Heath to the county detention center, where a Salem Police Department sergeant administered a breath test using a BAC Datamaster machine. At 9:19 p.m., two hours after Heath had last been seen driving, Heath's alcohol concentration equivalent was 0.097.
[¶6] The State charged Heath with Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15 and Class A misdemeanor operating a motor vehicle while intoxicated endangering a person. At Heath's 2023 trial, the jury heard the facts as set forth above. During closing arguments, Heath's counsel argued as follows:
I think . . . really the only conclusion that you can make based on the evidence . . . is that he did go straight home [from the baseball field] and that he would have been home in his parking lot by 7:30 p.m. at the latest. Well . . . it's not my job to fill in the gaps of what he was doing between 7:30 and 8:05.... You guys can make inferences as to what he was doing . . . while he was in his car from 7:30 to 8:05 p.m. Um, my presumption is that he was drinking that bottle of moonshine. Um, and that he was carrying it in his hand and drinking it outside, that's where they found him. The bottle was laying right next to him as he's not in his car, as he's outside on his own property, drinking.(Tr. Vol. 2 at 105).
[¶7] The jury convicted Heath of Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15 and acquitted him of Class A misdemeanor driving while intoxicated. The trial court sentenced Heath to sixty (60) days in the Washington County Detention Center, with forty (40) days suspended, and to 350 days of probation.
[¶8] Heath now appeals.
Decision
[¶9] Heath argues that there is insufficient evidence to support his conviction for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15. Our standard of review for sufficiency of the evidence claims is well settled. We consider only the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not reweigh the evidence or judge witness credibility. Id. We will affirm the conviction unless no reasonable fact finder could find the elements of the crime proven beyond a reasonable doubt. Id. The evidence is sufficient if an inference may be reasonably drawn from it to support the verdict. Id. at 147.
[¶10] INDIANA CODE § 9-30-5-1(a) provides, in relevant part, that "[a] person who operates a vehicle with an alcohol concentration equivalent to at least eighthundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol . . . commits a Class C misdemeanor." Heath argues that the State presented insufficient evidence to prove that his alcohol concentration equivalent was at least 0.08 but less than 0.15 at the time he operated his truck.
[¶11] Specifically, Heath contends that the "Datamaster testing, which occurred some two (2) hours following the last observation of . . . Heath operating a vehicle is too distant in time to establish a factual basis as to a specific blood alcohol content element as required by Indiana Code." (Heath's Br. 9). However, as the State points out, INDIANA CODE § 9-30-6-2 provides, in relevant part, as follows:
(a) A law enforcement officer who has probable cause to believe that a person has committed an offense under . . . IC 9-30-5 . . . shall offer the person the opportunity to submit to a chemical test.
(c) A test administered under this chapter must be administered within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5[.]
[¶12] In addition, INDIANA CODE § 9-30-6-15 provides, in relevant part, as follows:
(b) If, in a prosecution for an offense under IC 9-30-5, evidence establishes that:
(1) a chemical test was performed on a test sample taken from the person charged with the offense within the period of time allowed for testing under section 2 of this chapter; and
(2) the person charged with the offense had an alcohol concentration equivalent to at least eighthundredths (0.08) gram of alcohol . . .
the trier of fact shall presume that the person charged with the offense had an alcohol concentration equivalent to at least eighthundredths (0.08) gram of alcohol . . . at the time the person operated the vehicle. However, this presumption is rebuttable.
[¶13] Pursuant to these statutory provisions, if there is proof that a chemical test was performed on a test sample taken from Heath within three hours of Heath last operating his truck, the jury was presumably entitled to relate Heath's alcohol concentration equivalent at the time of his breath test back to the time that he operated his truck. See Jackson v. State, 67 N.E.3d 1166, 1170 (Ind.Ct.App. 2017) (explaining that "if there is proof that the chemical test occurred within three hours of the accident (i.e., the time Jackson last operated her vehicle), the trial court, as the factfinder in this case, was presumably entitled to relate Jackson's ACE at the time of the blood draw back to the time of the accident.").
[¶14] Here, the parties agree that Heath last operated his vehicle at approximately 7:30 p.m. It is also undisputed that Heath took a breath test two hours later at 9:19 p.m. Heath's alcohol concentration equivalent at that time was 0.097. Because Heath's breath test occurred within three hours of Heath last operating his truck, the jury was presumably entitled to relate Heath's alcohol concentration equivalent of 0.097 back to the time he operated his truck. Accordingly, the State presented sufficient evidence to prove that Heath's alcohol concentration equivalent was equivalent to at least 0.08 but less than 0.15 at the time he operated his truck.
[¶15] However, in an apparent attempt to rebut the statutory presumption, Heath argues that a "[r]easonable inference does not preclude that . . . Heath could have consumed alcohol following the observation of his driving at 7 p.m. and prior to his BAC testing." (Heath's Br. 8). In other words, Heath claims that an inference may be reasonably drawn that from 7:30 p.m. until 8:05 p.m., after he had returned from the store and was no longer driving, he consumed the alcohol that led to his 0.97 alcohol concentration equivalent.
[¶16] However, in our review, we consider only the probative evidence and reasonable inferences supporting the verdict. See Drane, 867 N.E.2d at 146. Our review of that evidence reveals that Heath told one of the deputies that he had consumed beer and moonshine before he had left for the store to purchase the box fan. Our review of the evidence further reveals that on his way home from the store, Heath drove his truck into a grassy area near a little league baseball field and hit a picnic table. Heath's truck moved the picnic table eight to twelve inches. As Heath backed up his truck, Tripp yelled at Heath to stop and approached Heath's truck. Tripp, who was not sure whether Heath was experiencing a medical emergency or was intoxicated, asked Heath if he was okay. Heath told Tripp to mind his business and drove away.
[¶17] We further note that during closing arguments, Heath's counsel argued that it was his presumption that Heath was drinking alcohol at home from 7:30 p.m. until 8:05 p.m. after he had returned from the store. However, the jury clearly rejected this argument when it convicted Heath of operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15. Heath now asks us to reweigh the evidence, which we will not do. See id. There is sufficient evidence to support Heath's conviction for Class C misdemeanor operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15.
[¶18] Affirmed.
Bailey, J., and Crone, J., concur.