Fields v. State

• Decision Date: 13 June 2008
• Docket Number: No. 79A05-0712-CR-680.,79A05-0712-CR-680.
• Citation: 888 N.E.2d 304
• Parties: Eberaia D. FIELDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

888 N.E.2d 304

Eberaia D. FIELDS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 79A05-0712-CR-680.

Court of Appeals of Indiana.

June 13, 2008.

Steven Knecht, Vonderheide & Knecht, P.C., Lafayette, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Eberaia D. Fields appeals his conviction of operating while intoxicated with a prior conviction of operating while intoxicated, a Class D felony.¹ He also challenges his habitual substance offender enhancement and his aggregate sentence. We affirm in part and reverse in part.

FACTS AND PROCEDURAL HISTORY

On March 4, 2005, Officers Sean Leshney and Joseph Clyde saw a gray Pontiac in a parking lot. Based on an earlier report, they believed the car or the license plate might have been stolen. The officers checked the Pontiac's license plate and learned it was registered to Fields and his driving privileges were suspended. The officers continued on patrol.

Later, the officers saw someone driving the Pontiac. Suspecting Fields might be driving, they followed the Pontiac until it stopped at a traffic light. The Pontiac was in a left-turn-only lane, but when the light turned green, the Pontiac went straight.

The officers activated their car's emergency lights. When the officers approached, Fields said his name was Charles Fields and the car was registered to his nephew, Eberaia Fields. Officer Clyde knew Fields and confronted him about his false statement. Fields then admitted he was Eberaia Fields.

The officers asked Fields to exit the Pontiac. Fields pulled himself from the car and was unsteady on his feet. The officers smelled alcohol on Fields' breath. Fields told the officers he had drunk a couple of beers. His eyes were bloodshot and watery, he had a "dazed look," (Tr. at 128), and his speech was slurred. He failed three field sobriety tests.

Officer Leshney asked Fields if he would consent to a chemical test. Fields initially agreed. Officer Leshney placed Fields in handcuffs in preparation to transport him to the police station, where the test would be administered. At that point, Fields became belligerent and began shouting profanities and insults. Fields was placed in the patrol car, and the officers asked him for his keys so they could impound his car. Fields refused to hand over his keys and began kicking the partition between the front and back seats of the patrol car. The officers therefore felt it was necessary to put him in shackles. Fields resisted, and it took three or four officers to remove him from the car, put him in shackles, and return him to the car.

The officers transported Fields to the jail, but he would not take a breath test. Therefore, the officers had to take him to the hospital to get medical clearance before he could be booked. Fields continued to resist and shout profanities until he was released to the custody of the jail.

Fields was charged with operating while intoxicated, a Class A misdemeanor;² operating while intoxicated with a prior conviction of operating while intoxicated, a Class D felony; operating while suspended, a Class A misdemeanor;³ resisting law enforcement, a Class A misdemeanor;⁴ false informing, a Class B misdemeanor;⁵ provocation, a Class C infraction;⁶ improper lane usage, an infraction;⁷ and being an habitual substance offender.⁸ Fields admitted to operating while suspended and was found guilty of the remaining charges. The trial court entered judgment of conviction on all counts except operating while intoxicated as a Class A misdemeanor and imposed an aggregate sentence of ten years.

DISCUSSION AND DECISION

1. Sufficiency of the Evidence

In reviewing the sufficiency of the evidence, we do not reweigh the evidence or assess the credibility of the witnesses. Love v. State, 761 N.E.2d 806, 810 (Ind. 2002). We consider the evidence most favorable to the verdict and the reasonable inferences drawn therefrom. Id. We will affirm if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id.

Fields argues there was insufficient evidence he was intoxicated. "Intoxicated" means being under the influence of alcohol "so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties." Ind.Code § 9-13-2-86. The State is required to establish the defendant was impaired, regardless of his blood alcohol content. Miller v. State, 641 N.E.2d 64, 69 (Ind.Ct.App.1994), trans. denied.

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.

Ballinger v. State, 717 N.E.2d 939, 943 (Ind.Ct.App.1999).

The officers testified Fields pulled himself from his car and was unsteady on his feet. He smelled of alcohol and his speech was slurred. His eyes were red and watery, and he had a "dazed look." (Tr. at 128.) He failed three field sobriety tests.⁹ Fields testified he had only one beer, but he told the officers he had "a couple" beers. (Id. at 29.) Fields' blood alcohol level was unknown because he refused to submit to chemical tests, but his appearance and behavior were sufficient to demonstrate he was intoxicated.

Nor was the trier of fact required to accept Fields' explanation for his erratic driving. Fields claims he went straight from the left-turn lane because he thought the police were on an emergency call, and he was attempting to get out of their way. However, the officers testified they did not turn on their emergency lights until they saw Fields commit the traffic violation. They testified Fields would have caused an accident if someone had been in the lane next to him. The foregoing facts were sufficient to prove Fields was intoxicated and impaired in his ability to operate a vehicle safely. See Ballinger, 717 N.E.2d at 943 (evidence of intoxication was "overwhelming" where Ballinger smelled of alcohol, his balance was "a little unstable," his eyes were red and glassy, his speech was slurred, and he failed field sobriety tests).

2. Amendment of Habitual Substance Offender Charge

The State charged Fields with being an habitual substance offender, alleging he had the following two substance offense convictions:

On or about May 23, 1995, in the Superior Court, Grant County State of Indiana, EBERAIA D. FIELDS was convicted of a substance offense, to wit: Operating While Intoxicated, committed on or about December 3, 1994.

On or about January 29, 2003, in Superior Court, Grant Count[y], State of Indiana, EBERAIA D. FIELDS was convicted of a substance offense, to wit: Operating While Intoxicated, committed on or about November 25, 2000.

(Appellant's App. at 18) (emphasis removed).

On July 11, 2007, after the omnibus date and two days before trial, the State moved to amend the habitual substance offender charge. The State had discovered the 1995 conviction was a Class C misdemeanor, which is not a predicate offense for an habitual substance offender enhancement. See Ind.Code § 35-50-2-10(a)(2) (the offenses must be felonies or Class A misdemeanors). The amended charge replaced the 1995 conviction with the following:

On or about DECEMBER 15, 1997, EBERAIA D. FIELDS was convicted in the Superior Court of GRANT County, State of INDIANA, of the offense of OPERATING WHILE INTOXICATED WITH PRIOR, a substance offense, committed, on or about AUGUST 10, 1997.

(Appellant's App. at 21) (emphasis removed). Fields objected to the amendment and moved for a continuance. The trial court denied Fields' motion and permitted the State to amend the charge.

Fields argues the amendment was one of substance and, pursuant to Fajardo v. State, 859 N.E.2d 1201, 1208 (Ind.2007), was permissible only up to thirty days before the omnibus date. The State argues Fields waived this argument by not moving to dismiss the charge, which he knew to be defective. See Higgins v. State, 690 N.E.2d 311, 314 (Ind.Ct.App. 1997), reh'g denied; Kirts v. State, 689 N.E.2d 756, 757-58 (Ind.Ct.App.1997); Miller v. State, 634 N.E.2d 57, 60-61 (Ind. Ct.App.1994); Marshall v. State, 602 N.E.2d 144, 147 (Ind.Ct.App.1992), trans. denied; Zavesky v. State, 558 N.E.2d 1124, 1126 (Ind.Ct.App.1990). These decisions all involved untimely challenges to charges that were allegedly defective on their face. Fields' original habitual substance offender charge was not defective, and he never argued that it was. The defect was not in the charge, but in the State's underlying evidence. Therefore, we decline to find his argument waived.

We must next consider whether to apply the new or old version of Ind.Code § 35-34-1-5, which governs amendment of charges. Prior to Fajardo, case law permitted untimely amendments of substance if the substantial rights of the defendant were not prejudiced. See Fajardo, 859 N.E.2d at 1206 (listing cases). On January 16, 2007, our Supreme Court decided Fajardo and held Ind.Code § 35-34-1-5 required amendments of substance to be made not less than thirty days before the omnibus date, regardless of whether they prejudiced the defendant. Fajardo, 859 N.E.2d at 1208. In response, the General Assembly amended Ind.Code § 35-34-1-5 to again permit amendments of substance before the commencement of trial if the amendment does not prejudice the substantial rights of the defendant. The amendment went into effect on May 8, 2007.

Fields committed his offenses prior to Fajardo, but was tried after the amendment to Ind.Code § 35-34-1-5 took effect. Fields argues the old statute applies, citing Roush v. State, 875 N.E.2d 801, 806 n. 2 (Ind.Ct.App.2007), where a panel of this court said, "because the alleged offense here occurred before the legislature amended the...