Dawson v. State

Decision Date20 April 1993
Docket NumberNo. 23A01-9204-CR-103,23A01-9204-CR-103
Citation612 N.E.2d 580
PartiesTroy D. DAWSON, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. First District
CourtIndiana Appellate Court

Kenneth R. Watson, Williamsport, for appellant-defendant.

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

BAKER, Judge.

Defendant-appellant Troy D. Dawson appeals his convictions and sentences for operating a vehicle while intoxicated resulting in the death of another ("OWI death"), and reckless homicide, both Class C felonies, 1 and his convictions for resisting law enforcement 2 and reckless driving. 3 We restate the issues as:

I. Did the trial court erroneously admit the results of Dawson's second blood test?

II. Must Dawson be relieved of responsibility for the decedent's death on account of the decedent's own intoxication?

III. Is Dawson entitled to reversal based on the State's alleged failure to comply with discovery orders?

IV. Can Dawson be punished for both OWI death and reckless homicide?

FACTS

The evidence favorable to the trial court's judgment reveals that on May 26, 1991, Attica Police Officer Gene Snoeberger observed Dawson riding his motorcycle at an excessively high rate of speed. Officer Snoeberger activated his lights and tried to stop Dawson, but Dawson successfully outmaneuvered Officer Snoeberger and escaped. Dawson was later charged About four weeks later, on the evening of June 22, 1991, after completing a long day of roofing his father's house, Dawson and several of his friends had a cookout, drank beer, and went swimming. A little before 2:00 a.m. the next morning, Dawson, on his motorcycle, and his friends, in their cars, left the Dawson home and went to a party hosted by Holly Foster. They arrived a couple of minutes later. 5 The party had just ended, however, so Dawson returned to his motorcycle. He announced his intention to do a wheelie, which his friend Scott Weiser advised against because Dawson had been drinking. Despite the Weiser warning, Dawson mounted the motorcycle, rode down the street, and made a U-turn. He revved his engine, accelerated to between forty and sixty miles per hour, and did the wheelie.

with reckless driving and resisting law enforcement. 4

While Dawson was zipping back up the street on one wheel, his friend Marc Billingsley happened to walk or run across it. It appeared as if Billingsley may have been removing his shirt while doing so. Dawson's motorcycle struck Billingsley and killed him. Dawson sustained serious injuries. The accident occurred several minutes after 2:00 a.m. 6

Officer Snoeberger was summoned at 2:17 a.m. and arrived one minute later. He smelled a strong odor of alcohol about Dawson. A blood sample taken from Dawson at 3:10 a.m. disclosed a blood alcohol content of 0.11% by weight and further revealed the presence of twenty nanograms of xanax, a benzodiazepine-class drug similar to valium. A second blood sample, drawn at 5:25 a.m., revealed a blood alcohol content of 0.095%.

The charges arising from these two incidents were consolidated in a single bench trial. The trial court found Dawson guilty of all four charges. He received a one-year sentence for resisting law enforcement and a 180-day sentence for reckless driving, the two to run concurrently. He was sentenced to four years' imprisonment on both the OWI death and reckless homicide charges, to be served concurrently with each other and consecutive to the concurrent resisting law enforcement and reckless driving sentences. In all, Dawson received a five-year sentence. He now appeals.

DISCUSSION AND DECISION

Dawson devotes the vast majority of his energy to appealing the convictions and sentences relating to the events of June 22, 1991. With the exception of section III(B), the analysis that follows pertains solely to the OWI death and reckless homicide convictions and sentences.

I. The Second Blood Sample

Dawson first contends the trial court improperly admitted State's Exhibit 40, the results of the blood sample drawn at 5:25 a.m., because the test was administered more than three hours after the development of probable cause, allegedly in contravention of IND.CODE 9-30-6-2(c). 7

We first observe Dawson raised no objection to the introduction or admission of Exhibit 40. By failing to make a timely objection, Dawson has waived the opportunity to allege error on appeal. See Walker v. State (1991), Ind.App., 582 N.E.2d 877. We also observe Dawson failed to place the challenged exhibit in the record of proceedings and failed to provide citation to the relevant portions of the record relating to the challenged evidence. The duty of presenting a record adequate for intelligent appellate review falls upon the appellant, as does the obligation to support the argument presented with citation to the record. Moore v. State (1981), Ind.App., 426 N.E.2d 86; Williams v. State (1980), Ind.App., 408 N.E.2d 123; Ind.Appellate Rule 8.3(A)(7). Literally, we can find no error.

Even if we were to assume the trial court erroneously admitted the results of the second blood test, we are satisfied there is "no substantial likelihood that the evidence contributed to the verdict," as we must be in order to find the erroneous admission of blood alcohol content evidence harmless. Bowman v. State (1991), Ind., 577 N.E.2d 569, 571. Dawson did not and does not challenge the results of the earlier test revealing a 0.11 blood alcohol content, and the evidence of Dawson's intoxication was sweeping. Even Dawson admitted he was affected by the alcohol. Dawson is not entitled to reversal based on this allegation of error.

II. Causation

Dawson next boldly asserts his conviction must be reversed because Billingsley's own intoxication was the "approximate cause" of his death. Brief of Appellant at 17. He argues that because Billingsley's blood alcohol content was 0.23 and that Billingsley was seen running heedlessly across the street while removing his shirt over his head, Billingsley caused his own death.

Causation is a question of fact. Rippy v. State (1986), Ind.App., 493 N.E.2d 477, trans. denied. The trial court, as trier of fact, rejected Dawson's proposition, as it was entitled to do, and instead found that Dawson's act of driving up the street at between forty and sixty miles per hour while intoxicated and doing a wheelie was the proximate cause of death, also as it was entitled to do. Dawson's argument amounts to a demand that we reweigh the fact-finder's factual findings and reach a contrary result. We refuse. See Id.

III. Discovery
A

After admitting that even he did not fully comply with the trial court's discovery orders, Dawson contends the State prejudiced his case by failing to provide potentially exculpatory evidence during discovery. He has not specified the evidence to which he refers, however, either to the trial court or to us. If his reference is to Billingsley's autopsy report, Dawson has failed to establish its exculpatory nature by failing to place the report in the record of proceedings. And even if there was some sort of discovery violation, the proper remedy was to request a continuance, which Dawson did not do. Hedrick v. State (1982), Ind., 430 N.E.2d 1150. Again, we can literally find no error.

B

As his sole challenge to the resisting law enforcement and reckless driving convictions, Dawson makes an indecipherable argument concerning an alibi defense. We will not consider incogent argument. See Cammack v. State (1970), 254 Ind. 637, 261 N.E.2d 862. These convictions and sentences are affirmed.

IV. Double Jeopardy

Finally, Dawson contends double jeopardy principles forbid the State from punishing him for both his OWI death and reckless homicide convictions.

A

The Fifth Amendment to the United States Constitution provides, in part, that no person shall "be subject for the same offence to be twice put in jeopardy of life or limb." The several States are bound by the double jeopardy clause through the Fourteenth Amendment. Benton v. Maryland (1969), 395 U.S. 784, 89 S.Ct. 2056, 23 L.Ed.2d 707. Similarly, Article I, Sec. 14 of the Indiana constitution provides, in part, "[n]o person shall be put in jeopardy twice for the same offense." Double jeopardy prohibits reprosecution for the same offense after an acquittal, reprosecution for the same offense after a conviction, and multiple punishment for the same offense. North Carolina v. Pearce (1969), 395 U.S. 711, 89 S.Ct. 2072, 23 L.Ed.2d 656; Elmore v. State (1978), 269 Ind. 532, 382 N.E.2d 893. It is this final prohibition--barring multiple punishments for the same offense--that is at issue here. If OWI death and reckless homicide are the "same offense," then double jeopardy prohibits the State from punishing Dawson for both. If they are not the same offense, double jeopardy is not a concern.

"The applicable rule is that, where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one, is whether each provision requires proof of an additional fact which the other does not." Blockburger v. United States (1932), 284 U.S. 299, 304, 52 S.Ct. 180, 182, 76 L.Ed. 306, 309. "The fact that the offenses stem from the same act merely informs us that there is a potential problem; it is not a solution to the problem. The ultimate focus is on the identity of the offenses, not on the identity of their source." Elmore, supra, at 539, 382 N.E.2d at 897.

In Carter v. State (1981), Ind.App., 424 N.E.2d 1047, 1048 while acknowledging "Indiana has rejected the 'one set of operative circumstances' approach to the double jeopardy consideration in convictions for multiple offenses[,]" this court held OWI death and reckless homicide were the "same" for double jeopardy purposes. Writing for the majority, Judge Garrard explained,

[t]he details of [the traditional Blockburger analysis] are, however,...

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