Black v. State

• Decision Date: 04 October 1993
• Docket Number: No. 27A02-9303-CR-109,27A02-9303-CR-109
• Citation: 621 N.E.2d 368
• Parties: Robert G. BLACK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 368

621 N.E.2d 368

Robert G. BLACK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 27A02-9303-CR-109.

Court of Appeals of Indiana,

Third District.

Oct. 4, 1993.

Darrell S. Thompson, Marion, for appellant-defendant.

Pamela Carter, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

HOFFMAN, Judge.

Appellant-defendant Robert G. Black appeals his conviction for operating a vehicle with ten-hundredths percent (.10%) by weight of alcohol in his blood, a Class C misdemeanor.

The evidence relevant to the appeal discloses that on June 1, 1992, at approximately 9:45 P.M., Indiana State Police Officer Mike Lantz was driving westbound on State Road 18 when he observed an eastbound vehicle approaching at a high rate of speed. Officer Lantz activated his radar equipment and determined that the car was travelling 60 miles per hour. The posted speed limit was 45 miles per hour.

Officer Lantz turned his vehicle around and pursued the vehicle. Black, who was driving the car, pulled over when he saw Officer Lantz' red lights. Black did not have his driver's license and was not wearing a seat belt. Lantz saw an opened container of beer in the car. Also, Officer Lantz smelled the odor of alcoholic beverages. Black acknowledged that he had been drinking.

Officer Lantz administered a portable breath test, an alcosensor, to Black. Black was taken to the police station where a breath test was administered using an Intoxilyzer 5000 machine. A test result of .10% blood alcohol was recorded. Pursuant to Black's request, field sobriety tests were conducted which Black successfully completed.

After a trial by jury, Black was convicted as noted above. This appeal ensued.

Black raises three issues for review:

(1) whether Black received a fair trial in light of the State's revision of a previously entered plea agreement on behalf of a juror;

(2) whether sufficient probable cause existed to stop Black; and

(3) whether the evidence is sufficient to sustain the conviction.

Black first contends that he did not receive a fair trial in light of a plea agreement he discovered wherein a juror's previously entered conviction, pursuant to a plea agreement, for felony drunk driving was amended to a misdemeanor. The copy of the plea agreement, placed in the record, notes that "Defendant [the juror] served on a County Court Jury that convicted of DUI," and "Defendant would suffer hardship from DUI felony conviction." Black merely submitted the copy of the "Amended Plea Agreement" with the record on appeal. Although the "Amended Plea Agreement" is dated three days prior to Black's sentencing hearing, Black did not attempt to raise this "newly discovered evidence" in a motion to correct error. See Ind. Trial Rule 59(A) (motion to correct error mandatory for newly discovered evidence which could not have been raised at trial).

Moreover, Black did not submit any evidence that the juror named in the plea agreement was in fact a juror in his case. The name of the defendant juror does not appear in the record as one of the jurors polled as to the verdict in Black's case.

As noted by the State, Black did not present this "evidence" in the proper format and failed to tie the agreement to the proceedings in his case. Thus, Black failed to demonstrate error. However, if the copy of the agreement as submitted with the record actually represents events which took place on any plea agreement, such practice is strongly discouraged.

Next, Black complains that the officer did not have probable cause to stop his vehicle. Black seeks only to cast doubt on the plausibility of the events as reported by the officer. Courts reviewing the sufficiency of the evidence will neither weigh evidence nor judge the credibility of witnesses and will consider only the probative evidence and any reasonable inferences supporting the verdict. Braswell v. State (1990), Ind., 550 N.E.2d 1280, 1284. Further, police officers may stop a vehicle when they observe minor traffic violations. See State v. Heuck (1991), Ind.App., 577 N.E.2d 608, 610. The evidence supports a finding that Black was speeding. Officer Lantz properly stopped Black's vehicle. When Officer Lantz approached Black's car, he smelled alcohol and an opened alcoholic beverage was visible. Black's contention that the officer did not have probable cause to stop him is without merit.

Finally, Black alleges that the evidence is insufficient to sustain his conviction. Specifically, Black contends that the evidence demonstrates that a reading of .10% blood alcohol content could be rounded up from a lesser blood alcohol content. Accordingly, the evidence of a .10% reading in his case does not establish that his b.a.c. was at least .10% when he was operating the vehicle or at any other time. The statute under which Black was convicted provides, in pertinent part:

"A person who operates a vehicle with at least ten-hundredths percent (0.10%) by weight of alcohol in the person's blood commits a Class C misdemeanor."

IND.CODE Sec. 9-30-5-1(a) (1991 Supp.).

When asked whether the breathalyzer "rounds up"...