Ballinger v. State

• Decision Date: 19 October 1999
• Docket Number: No. 49A04-9808-CR-412.,49A04-9808-CR-412.
• Citation: 717 N.E.2d 939
• Parties: Walter BALLINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

717 N.E.2d 939

Walter BALLINGER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A04-9808-CR-412.

Court of Appeals of Indiana.

October 19, 1999.

John L. Tompkins, Indianapolis, Indiana, Attorney for Appellant.

Jeffrey A. Modisett, Attorney General of Indiana, Janet Brown Mallett, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

OPINION

BROOK, Judge

Case Summary

On June 22, 1997, Jackiel Heck ("Heck") and appellant-defendant Walter Ballinger ("Ballinger") were involved in a vehicle collision that resulted in Heck's death. Ballinger appeals from his convictions arising out of that conviction: Count I, operating a vehicle while intoxicated causing death as a class C felony¹ ("OWI death") and Count II, causing the death of another person while operating a vehicle with at least ten percent by weight of alcohol in his blood, a class C felony ("BAC death").² We affirm in part and reverse and remand in part.

Issues

Ballinger raises the following five restated issues for our review:

(1) whether the State presented sufficient evidence to establish beyond a reasonable doubt that Ballinger was intoxicated at the time of the accident;

(2) whether the State presented sufficient evidence to establish beyond a reasonable doubt that Ballinger's blood contained at least ten hundredths percent by weight of alcohol;

(3) whether the State presented sufficient evidence to establish beyond a reasonable doubt that the accident caused Heck's death;

(4) whether evidence of Heck's previous OWI conviction was properly excluded under Ind. Evidence Rule 403; and

(5) whether Ballinger's sentence was unreasonable given his character and the nature of the offense.

We raise the following issue sua sponte:

whether the trial court erred by not vacating Ballinger's conviction for Count II, BAC death.

Facts and Procedural History

We set forth the following facts most favorable to the judgment of conviction: on June 22, 1997, at approximately 1:57 a.m., Heck was driving his motorcycle and collided with the passenger side of Ballinger's truck. Heck suffered a serious wound to his neck, from which he lost several pints of blood, and died shortly thereafter. Several witnesses were present at the scene of the accident and identified Ballinger as the driver of the truck with which Heck's motorcycle collided. On June 23, 1997, Ballinger was charged by information as follows:

COUNT I

Walter Ballinger, on or about June 22, 1997, did cause the death of another person, namely: Jackiel Heck, when operating a motor vehicle while intoxicated;

COUNT II

Walter Ballinger, on or about June 22, 1997, did cause the death of another person, namely: Jackiel Heck, when operating a vehicle with at least ten-percent (0.10%) by weight of alcohol in the person's blood;

all of which is contrary to statute and against the peace and dignity of the State of Indiana....

Ballinger was tried by a jury on May 4, 1998, and May 6, 1998. At the conclusion of the second day of trial, the jury found Ballinger guilty of OWI death and BAC death. The trial court sentenced Ballinger on June 3, 1998, stating in part as follows:³

I believe, due to the types of offenses that were charged, that the minutes should reflect that a verdict of guilty was found on Count Two, but a judgment of conviction I don't believe can be entered on Count Two because of the offense which is charged in Count One.... So, we'll be sentencing the defendant on just Count One here today....

The court finds one aggravating factor. The defendant has one prior conviction, ironically for operating a motor vehicle while intoxicated. Court finds two mitigating factors. The defendant's health is poor; second, that the—and I do not mean to, in any manner, drag Mr. Heck through the mud, but he did have quite a high blood alcohol content in his body that night as well. So, it appears that that could have been a contributing factor to this accident. But, certainly, the court agrees with the jury's verdict. The defendant is guilty of this offense. Weighing all these matters out, the defendant is sentenced as follows: Defendant is sentenced to eight (8) years at the Indiana Department of Correction; four (4) years are executed; four (4) are suspended. The first two (2) years of that executed sentence will be served at the Indiana Department of Correction. The second two (2) years of that executed sentence will be served at Riverside Community Work Release Center. Following the defendant's executed sentence the defendant will be placed on probation for two (2) years. The defendant's driving privileges are ordered suspended for five (5) years....

Ballinger now appeals. Additional facts will be supplied as necessary.

Discussion and Decision

I. Sufficiency of Evidence of Ballinger's Intoxication

Ballinger first argues that the State's evidence was insufficient to establish that he was intoxicated at the time of the accident. We initially note that when reviewing claims of insufficient evidence, this Court neither reweighs the evidence nor judges the credibility of the witnesses. Hornback v. State, 693 N.E.2d 81, 84 (Ind. Ct.App.1998). We consider only the evidence most favorable to the verdict together with all reasonable inferences to be drawn therefrom. Id. We will affirm the verdict if the probative evidence and the reasonable inferences to be drawn from that evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Weaver v. State, 702 N.E.2d 750, 753 (Ind.Ct.App. 1998).

In challenging the jury's verdict that he operated his vehicle while intoxicated causing death, Ballinger correctly cites the following statutory definition of "intoxicated," which "means under the influence of (1) alcohol; ... so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to an extent that endangers a person." IND.CODE § 9-13-2-86. He also acknowledges, correctly, that proof of intoxication may be established by showing impairment, and that it does not require proof of a Blood Alcohol Content ("BAC") level. See Jellison v. State, 656 N.E.2d 532, 535 (Ind.Ct.App.1995). Evidence of the following can establish impairment: (1) the consumption of significant amounts of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; (7) slurred speech. See id. at 535-36; see also Staley v. State, 633 N.E.2d 314, 317-18 (Ind.Ct.App.1994).

Indianapolis Police Officer Kurt Greggs, the first officer to arrive at the scene of the accident, testified at trial that Ballinger, "did have a slight odor of alcoholic beverage about his person. And he didn't necessarily walk directly from the area we left to my car in the most straight line." He also characterized Ballinger's balance as "a little unstable," and his eyes as "a tad bit glassy." Indianapolis Police Officer and crash investigator Jeffrey Patterson, who arrived at the scene shortly after Officer Greggs, testified that when he began questioning Ballinger in the back of his patrol car, he "noticed an odor of an alcoholic beverage" coming from his breath and that Ballinger "had very glassy red eyes," and his speech was "slurred." Officer Patterson then conducted a "horizontal gaze nystagmus" field sobriety test, a "nine-step walk heel-to-toe" field sobriety test, and a "one-leg stand field sobriety test." He testified that Ballinger failed all three field sobriety tests and had difficulty maintaining his balance.

Ballinger asserts that in spite of this overwhelming evidence of his intoxication, there is no evidence that his driving was impaired, because at the time of the accident, his truck's lights were on; he was not speeding; and his turn signal was on. Citing IND.CODE §§ 9-30-6-2⁴ and 9-30-6-15,⁵ he also argues that "there is no presumption that evidence of intoxication observed up to three hours after driving [is an accurate indication] of intoxication at the time of driving," because "the probative value of observations of the foregoing factors decreases over time, and eventually becomes zero."

Ballinger essentially claims that he became more intoxicated as time passed, and thus the evidence of his intoxication subsequent to the accident is not probative of whether his driving was impaired. We find this argument to be nothing more than a request for us to reweigh the evidence. Moreover, we have held that a reasonable person could conclude that a defendant was intoxicated from an officer's testimony that a defendant was exhibiting evidence of impairment two hours after an accident. See Staley, 633 N.E.2d at 318. There is no evidence in the instant case that an unreasonable length of time passed between the accident and Officer Patterson's observations and the field sobriety tests; furthermore, common sense would dictate that as time passed, Ballinger would only have become less intoxicated, not more. Immediately prior to taking a taped statement from Ballinger, Officer Patterson had him sign a form containing an advice and waiver of rights; the time at the top of the form reads 3:22 a.m. Officer Patterson's testimony revealed that he administered the field sobriety tests right after he took the taped statement. As we have noted above, the accident occurred between 1:30 and 2:00 a.m. The jury was made aware of the sequence of events and was able to gauge the passage of time between the accident and the evidence of impairment exhibited by Ballinger. We will not substitute our judgment for theirs as to whether Ballinger was intoxicated at the time he was operating his vehicle and the accident occurred.

II. Sufficiency of Evidence of Ballinger's BAC

Ballinger next contends that the State did not present sufficient evidence to establish beyond a reasonable doubt that his blood contained at least ten-hundredths...