Guy v. State

• Decision Date: 17 April 1997
• Docket Number: No. 03A01-9508-CR-252,03A01-9508-CR-252
• Citation: 678 N.E.2d 1130
• Parties: Curtis R. GUY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 1130

678 N.E.2d 1130

Curtis R. GUY, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 03A01-9508-CR-252.

Court of Appeals of Indiana.

April 17, 1997.

James W. Long, Columbus, for Appellant.

Pamela Carter, Attorney General, Preston W. Black, Deputy Attorney General, Indianapolis, for Appellee.

OPINION

BAKER, Judge.

Appellant-defendant Curtis R. Guy appeals his convictions for two counts of Reckless Homicide, ¹ both Class C felonies, two counts of Operating a Vehicle While Intoxicated or with a Blood Alcohol Content of at Least .10% or More Resulting in Death, ² both Class C felonies, two counts of Operating a Vehicle While Intoxicated or With a Blood Alcohol Content of at Least .10% or More Resulting in Serious Bodily Injury, ³ both Class D felonies, and Operating a Vehicle While Intoxicated, ⁴ a Class D felony. Specifically, Guy contends that the trial court erred by denying his motion to suppress evidence of his blood alcohol content and his two motions for a directed verdict.

FACTS

The facts most favorable to the verdict reveal that on the morning of October 3, 1993, Guy awoke at his wife's residence on U.S. 31 south of Columbus, Indiana, and consumed three or four beers. Thereafter, Guy drove to his home in Newbern, Indiana, to mow his yard and complete several household chores. After mowing the yard, Guy consumed five or six more beers and prepared to return to his wife's residence. In total, Guy consumed between eight and twelve beers during the day.

At approximately 5:59 p.m., as Guy was driving back to his wife's residence, his car veered out of the westbound lane of State Road 46 and onto the berm. Guy then pulled his car back onto the road, crossed the centerline and struck an eastbound 1992 Pontiac Grand Am. As a result of the collision, Katherine and Sherry Lewis, two of the occupants of the Pontiac, were killed. Additionally, Lee Ann Lewis and Anna Lewis, the other occupants of the Pontiac, and Guy sustained serious injuries.

Shortly thereafter, Sergeant Robert L. Amos of the Bartholomew County Sheriff's Department arrived at the scene. When he approached Guy's car, Sergeant Amos smelled alcohol and noticed open beer cans in the vehicle. Several other witnesses at the scene also indicated that they smelled alcohol on Guy's breath, that his speech was slurred and that he was cursing, loud and uncooperative. Record at 444, 446-47, 466, 479, 591, 594, 631, 633-34, 635. Sergeant Amos then radioed in a request for a blood alcohol test on both drivers at 7:14 p.m.

At approximately 7:20 p.m., Guy was transported to the Bartholomew County Hospital, where a sample of his blood was drawn. Subsequent analysis of the sample revealed that Guy's serum alcohol content was .238%, which corresponds to a whole blood alcohol content of .199%. R. at 1012.

On October 18, 1993, Guy was charged with two counts of reckless homicide, both class C felonies, two counts of driving while intoxicated or with a blood alcohol content of at least .10% resulting in death, both class C felonies, two counts of driving while intoxicated or with a blood alcohol content of .10% resulting in serious bodily injury, both class D felonies, operating a vehicle while intoxicated, a class D felony, Operating a Vehicle While Intoxicated, a Class A misdemeanor, ⁵ and Operating a Vehicle With at Least .10% By Weight of Alcohol in the Blood, ⁶ a Class C misdemeanor. Prior to trial, Guy filed a motion to suppress the results of his blood test on the grounds that Sergeant Amos "failed to comply with Indiana Code 9-30-6-6(g) in requesting the blood alcohol content test." R. at 90. After a hearing, the trial court denied Guy's motion.

Thereafter, a jury trial was conducted. After the State rested its case, Guy moved for a directed verdict on the reckless homicide charges, arguing that the evidence presented did not establish that he had acted recklessly. In addition, he moved for a directed verdict on the remaining counts on the grounds that the State had not produced prima facie evidence of Guy's intoxication or impairment. The trial court subsequently denied both motions and Guy proceeded to present evidence.

After hearing all of the evidence, the jury convicted Guy as charged. Thereafter, the trial court entered judgment of conviction on all the felony charges, but did not enter judgment of conviction on the misdemeanor charges. The court then sentenced Guy to eight years imprisonment on his first conviction for reckless homicide, eight years with one year suspended and to be served on probation on his second conviction for reckless homicide, and three years for driving while intoxicated. ⁷ The sentences were to be served consecutively for a total term of nineteen years imprisonment. Additional facts will be supplied as necessary.

DISCUSSION AND DECISION

I. Motion to Suppress

Guy contends that the trial court erred in denying his motion to suppress the blood alcohol content test results. Specifically, Guy argues that the test results were inadmissible because Sergeant Amos did not comply with I.C. § 9-30-6-6(g), ⁸ which requires a law enforcement officer requesting BAC information to certify in writing that he had probable cause to believe that the person from whom the blood sample is to be drawn had violated IND. CODE § 9-30-5 and that the collision occurred not more than three hours before the request for the blood test.

Initially, we note that Guy failed to object to the admission of the blood test results when the evidence was offered at trial. Although Guy filed a motion to suppress the evidence prior to trial and renewed the motion at trial, a motion to suppress does not preserve an error for appellate review. Poulton v. State, 666 N.E.2d 390, 393 (Ind.1996); see also Moss v. State, 165 Ind.App 502, 511-12, 335 N.E.2d 633, 634 (1975) (oral motion to suppress evidence at trial does not eliminate requirement of contemporaneous objection). As a result, Guy has waived this issue on appeal.

Notwithstanding waiver, the trial court did not err in denying Guy's motion to suppress the blood alcohol content test results. As this court has previously explained, I.C. § 9-30-6-6(g) was intended to assist law enforcement officers in obtaining evidence of intoxication by providing them with a mechanism to compel reluctant physicians to draw blood samples, rather than as a device to exclude evidence. Spriggs v. State, 671 N.E.2d 470, 472 (Ind.Ct.App.1996); State v. Robbins, 549 N.E.2d 1107, 1109-10 (Ind.Ct.App.1990). As a result, the certification requirements of subsection (g) are merely a tool to acquire BAC evidence and only apply when a physician refuses to draw a blood sample. Spriggs, 671 N.E.2d at 472; Robbins, 549 N.E.2d at 1110.

Here, the record reveals that the hospital physician, Dr. Lagos, did not refuse to draw a blood sample. In fact, the record reveals that Dr. Lagos ordered the blood draw and blood alcohol analysis himself for medical purposes. R. at 308-10, 324. Therefore, I.C. § 9-30-6-6(g) is not applicable to this case. Thus, the trial court did not err in denying Guy's motion to suppress.

II. Directed Verdicts

Next, Guy contends that the trial court erred in denying his motions for a directed verdict. Specifically, he argues that the evidence presented at trial did not establish that he acted recklessly and, therefore, could not support a conviction for reckless homicide. In addition, he contends that his remaining charges were not supported by sufficient evidence because the State did not produce prima facie evidence of Guy's intoxication or impairment.

Initially, we note that Guy presented evidence after the denial of his motions for a directed verdict. As a result, he has waived this issue for appellate review. Snow v. State, 560 N.E.2d 69, 74 (Ind.Ct.App.1990) (defendant waived error in denial of motion for directed verdict by presenting evidence following denial of motion), trans. denied. Notwithstanding waiver, the trial court did not err in denying Guy's motions.

In order for a trial court to grant a motion for a directed verdict, there must be a total lack of evidence on an essential element of the crime or the evidence must be without conflict and susceptible to only an inference in favor of the defendant's innocence. Barrett v. State, 634 N.E.2d 835, 837 (Ind.Ct.App.1994). If the evidence is sufficient to sustain a conviction on appeal, then the trial court's denial of a motion for a directed verdict cannot be in error. Id. When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor reassess the credibility of the witnesses; rather, we will consider only the evidence favorable to the verdict and reasonable inferences to be drawn from that evidence. Id. If there is substantial evidence of probative value to support the conclusions of the trier of fact, we shall affirm the conviction. Id.

A. Reckless Homicide

First, we address Guy's contention that he was entitled to a directed verdict on the reckless homicide charges. A person who recklessly kills another human being commits reckless homicide. I.C. § 35-42-1-5. A person engages in conduct "recklessly" if he engages in conduct in plain, conscious and unjustifiable disregard of the harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct. I.C. 35-41-2-2(c); Nichols v. State, 591 N.E.2d 134, 137 (Ind.1992). Driving while intoxicated in conjunction with excessive speed or driving in a dangerous manner is sufficient to sustain a conviction of reckless homicide. Young v. State, 161 Ind.App. 532, 546, 316 N.E.2d 435, 443 (1974).

Here, the facts most favorable to the judgment reveal that Guy had consumed as many as twelve beers prior to driving his vehicle and that his blood alcohol level was approximately .20%, which is twice the legal limit, nearly two hours after the collision. The record also reveals that Guy drove his car in a dangerous manner....