Baran v. State

• Decision Date: 01 September 1994
• Docket Number: No. 49S05-9409-CR-828,49S05-9409-CR-828
• Citation: 639 N.E.2d 642
• Parties: James S. BARAN, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 642

639 N.E.2d 642

James S. BARAN, Appellant, v. STATE of Indiana, Appellee.

No. 49S05-9409-CR-828.

Supreme Court of Indiana.

Sept. 1, 1994.

J.J. Paul, III Ober, Symmes, Cardwell, Voyles & Zahn, Indianapolis, for appellant, James S. Baran.

Pamela Carter, Atty. Gen., Julie Zandstra Frazee, Deputy Atty. Gen., Indianapolis, for appellee, State of Ind.

ON PETITION TRANSFER

SULLIVAN, Justice.

Following a bench trial, James S. Baran was convicted of operating a vehicle with .10%, or more by weight of alcohol in the blood, a class C misdemeanor. ¹ Baran was sentenced to 60 days; the sentence was suspended. Baran was found not guilty of driving while intoxicated. ²

A majority of the Court of Appeals' Fifth District reversed the conviction on the grounds there was insufficient evidence that the result of the breath test was expressed as a percentage by weight in the blood. Baran v. State (1993), Ind.App., 622 N.E.2d 1326 (2-1 decision, Rucker, J., dissenting). Because the majority holding in Baran conflicts with the majority holding in Daum v. State (1993), Ind.App., 625 N.E.2d 1296 (2-1 decision, Hoffman, J., dissenting), trans. denied, we grant transfer. Ind.Appellate Rule 11(B).

In reversing Baran's conviction for insufficient evidence, the Court of Appeals did not address all of the issues raised by Baran in his original appeal. Because we affirm the conviction, we do so here:

1. Whether there was legal cause to stop Baran's vehicle and probable cause to offer a breath test;

2. Whether the probable cause affidavit was erroneously admitted 3. Whether the breath test result was erroneously admitted; and

4. Whether the evidence is sufficient to sustain the conviction.

Facts

The evidence most favorable to the verdict shows that early in the morning on February 20, 1991, an Indiana State trooper observed that the truck being driven by Baran was weaving from lane to lane on the interstate. After signalling Baran to stop, the trooper detected an odor of alcohol. The trooper then summoned a service truck to impound Baran's vehicle and transported him to Speedway, Indiana, where Baran submitted to a breath test conducted by the trooper with the use of an Intoxilyzer 5000 machine. The Intoxilyzer machine printout reported that Baran's blood alcohol content was .11.

1. There was Probable Cause to Offer a Breath Test

Baran argues that the trial court should have suppressed all evidence obtained after he was stopped because the State failed to establish that the trooper had either legal cause to stop his vehicle or probable cause to offer a breath test.

Resolution of the first part of Baran's argument is guided by Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), in which the Supreme Court recognized that investigative stops of limited duration and reasonably related in scope to the justification for their initiation are legal. Terry held that a police officer need not have probable cause to make an arrest when making an investigative stop, but must be able "to point to specific and articulable facts which, taken together with rational inferences from those facts," reasonably warrant " 'the intrusion upon the constitutionally protected interests' " of private citizens. Id., 392 U.S. at 21-22, 88 S.Ct. at 1880 (quoting Camara v. San Francisco Mun. Ct., 387 U.S. 523, 534, 87 S.Ct. 1727, 1733-34, 18 L.Ed.2d 930 (1967)). Indiana courts follow the Terry guidelines. Platt v. State (1992), Ind., 589 N.E.2d 222, 225-26; Luckett v. State (1972), 259 Ind. 174, 179, 284 N.E.2d 738, 741. Whether a particular fact situation justifies an investigatory stop is determined on a case by case basis. Platt, 589 N.E.2d at 226. The requirements of the Fourth Amendment are satisfied if the facts known to the officer at the moment of the stop are such that a person "of reasonable caution" would believe that the "action taken was appropriate." Terry, 392 U.S. at 22, 88 S.Ct. at 1880. Indiana has adopted this test. Gipson v. State (1984), Ind., 459 N.E.2d 366, 368.

Here, the trooper watched Baran's truck weave more than once back and forth between lanes as it traveled along the interstate. Given this conduct and the potential danger it posed to other motorists, it was reasonable for the trooper to believe that further investigation was warranted. Clark v. State (1990), Ind., 561 N.E.2d 759, 762. See also Sell v. State (1986), Ind.App., 496 N.E.2d 799, 800 (stop appropriate where car was traveling 35 miles per hour below the posted speed limit); Jaremczuk v. State (1978), 177 Ind.App. 628, 630-31, 380 N.E.2d 615, 617 (stop appropriate where vehicle was weaving within the lane of traffic and momentarily left the roadway). A person of reasonable caution would believe this stop was appropriate.

Baran argues that even if the initial stop was legal, the trooper did not have probable cause to take him into custody and offer him a breath test. However, the cases Baran cites in support of this argument are distinguishable. In Irwin v. State (1978), 178 Ind.App. 676, 682, 383 N.E.2d 1086, 1090, for example, the court held that the officer's perception of odor of alcohol and defendant's admission that he had recently consumed some beer were insufficient to give the officer probable cause to make an arrest for public intoxication. By contrast, here, the trooper not only smelled alcohol, but also observed Baran driving in an unsafe manner. This is sufficient probable cause to offer a breath test. State v. Johnson (1987), Ind.App., 503 N.E.2d 431, 432, trans. denied.

In addition to these legal arguments about the Terry stop and probable cause to offer the breath test, Baran asserts that the trooper should not have been permitted to testify about observing Baran's driving because the trooper had no independent recollection of those observations. The record does not support this argument. Although the trooper could not remember every detail surrounding the stop, there were specific details that he did recall: that Baran was not the owner of the truck; that there was a passenger in the truck; and that Baran was from out-of-state and was returning from the Daytona 500. The trooper testified that he specifically recalled observing the truck weave from lane to lane on the interstate. The fact that he could not recall every detail goes to the weight of the evidence, not its admissibility. Stanley v. State (1987), Ind., 515 N.E.2d 1117, 1119. It was for the factfinder, the trial court in this case, to determine what weight to give the trooper's testimony. No error occurred.

Finally, Baran claims that the trial court erred in failing to allow testimony from other witnesses who would have contradicted the trooper's testimony about Baran's driving. The record reveals otherwise.

Baran moved to suppress evidence of everything that took place after he was signalled to pull over by the trooper. Baran contended that the trooper's stop was pretextual because he had not, in fact, observed the truck weaving between lanes of traffic. To support his motion, Baran's counsel offered testimony from both Baran and his passenger to that effect. Baran correctly notes that the offered testimony would have done nothing more than create a conflict in the evidence, that such conflicts presented on a motion to suppress are to be resolved by the trial court, and are reviewed on appeal as a sufficiency question. Brandon v. State (1978), 268 Ind. 150, 154, 374 N.E.2d 504, 506. Baran's assertions notwithstanding, the trial court did not preclude Baran from presenting this testimony; rather, the trial court weighed the evidence presented, and chose to believe the trooper's testimony. No error occurred.

2. No Reversible Error in Admission of Probable Cause Affidavit.

Baran next asserts that the trial court erred in admitting over his hearsay objection the probable cause affidavit prepared by the trooper because the affidavit did not meet the requirements for admission of prior statements set out by this Court in Modesitt v. State (1991), Ind., 578 N.E.2d 649, 654. ³

Modesitt concerned the admission of a prior statement by a witness for use as substantive evidence in a situation where no hearsay exception was applicable, and it expressly stated that the new rule does not affect recognized exceptions to the hearsay rule. Id. at 654. Here, the probable cause affidavit was admissible under an existing exception to the hearsay rule, past recollection recorded. Gee v. State (1979), 271 Ind. 28, 36, 389 N.E.2d 303, 309. ⁴

In any event, the probable cause affidavit was admitted to prove the results of field sobriety tests. Because the trooper had probable cause to offer Baran a breath test before the field sobriety tests were conducted, the results of the field sobriety tests were relevant only to the charge of driving while intoxicated. Baran was found not guilty of that charge and, therefore, any error in the admission of the document was harmless.

3. Admission of Breath Test Result Was Proper

Baran claims that the result of the breath test was improperly admitted because the State failed to establish the proper procedure for administering the test and that the test operator followed this procedure.

Indiana law establishes the necessary foundation for admission of breath tests. Evidence of a defendant's blood alcohol content may be established by chemical tests only if the test operator, the test equipment, the chemicals used and the techniques used in the test have been approved by the Indiana Department of Toxicology. Ind.Code Ann. § 9-11-4-5 (Burns 1987). ⁵ As the party offering the results of the breath test, the State bears the burden of establishing this foundation. Hopkins v. State (1991), Ind., 579 N.E.2d 1297, 1303; Regan v. State (1992), Ind.App., 590 N.E.2d 640, 646. At trial, the State must establish the proper procedure, Hartman v. State (1980), Ind.App., 401 N.E.2d 723, 725, and that the operator followed that procedure. Boothe v. State (19...