Ham v. State
| Decision Date | 30 June 2004 |
| Docket Number | No. 70A01-0310-CR-401.,70A01-0310-CR-401. |
| Citation | 810 N.E.2d 1150 |
| Parties | Kimberly S. HAM, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Brady J. Lory, Indianapolis, IN, Attorney for Appellant.
Steve Carter, Attorney General of Indiana, Richard C. Webster, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Appellant-defendant Kimberly S. Ham appeals her conviction for Operating a Vehicle While Intoxicated,1 a class C misdemeanor. Specifically, Ham argues that the conviction may not stand because the trial court erred in giving a final instruction which provided that "a defendant's refusal to submit to a chemical test may be considered as evidence of intoxication." Appellant's App. p. 124. Ham asserts that the instruction was an incorrect statement of the law and that it unduly emphasized one evidentiary fact pertaining to her guilt regarding the charged offense.
We conclude that the trial court erred in tendering this instruction to the jury, and we thus admonish our trial courts to refrain from giving this type of instruction in the future. However, in light of the overwhelming evidence presented at trial establishing Ham's guilt, we hold that the instruction constituted harmless error. Therefore, we affirm the judgment of the trial court.
On January 18, 2002, Officer Brad Hatfield of the Rushville Police Department was on routine patrol. At some point, he observed Ham driving a red Pontiac Firebird traveling to the left of the centerline. Officer Hatfield then began following Ham and saw her drift to the left of the centerline on several more occasions. He also noticed that Ham's seatbelt was not buckled.
As a result, Officer Hatfield stopped Ham's vehicle. When he approached, he noticed a strong odor of alcohol emanating from Ham's car. After telling Ham why he stopped her, Officer Hatfield asked for her driver's license and registration. Ham fumbled through her purse before she was finally able to produce those documents. Additionally, when Ham exited her vehicle, she stumbled and almost fell back onto her car. Officer Hatfield then offered Ham a preliminary breath test which she refused to take. Ham was also given various field sobriety tests that she either failed or refused to perform. During this interaction, Officer Hatfield noticed that Ham's eyes were glassy and bloodshot and her speech was broken and slurred. Upon reading the implied consent law to Ham in accordance with Indiana Code section 9-30-6-7, Officer Hatfield asked her whether she would submit to a chemical test. Ham refused and, as a consequence, Officer Hatfield arrested Ham and transported her to the county jail.
At the jail, Ham was offered other field sobriety tests, but she refused. Officer Hatfield also reread the implied consent law to Ham, and she again refused to submit to a chemical test. The State then charged Ham with driving while intoxicated as a class A misdemeanor, and the case was tried to a jury on May 13, 2003. Following the presentation of the evidence, the trial court gave the final instruction indicating that Ham's refusal to submit to a chemical test could be considered evidence of her intoxication. Ham objected to the giving of the instruction, arguing that it highlighted only a "specific piece of evidence," and that the instruction "was an incorrect statement of the law" in accordance with Indiana Code section 9-30-6-3(b). Tr. p. 115-16, 121. In the end, Ham was found guilty of the offense as a class C misdemeanor. She now appeals.
In addressing Ham's argument that the trial court's instruction was erroneous, we note that instructing the jury lies within the sole discretion of the trial court. Carter v. State, 766 N.E.2d 377, 382 (Ind.2002). We will reverse the trial court's decision regarding jury instructions only for an abuse of discretion. Forte v. State, 759 N.E.2d 206, 209 (Ind.2001). Additionally, jury instructions are to be considered as a whole and in reference to each other, and this court will not reverse the trial court's decision as an abuse of discretion unless the instructions as a whole mislead the jury as to the law of the case. Carter, 766 N.E.2d at 382. We also note that instructions that unnecessarily emphasize one particular evidentiary fact, witness or phase of the case have long been disapproved. Ludy v. State, 784 N.E.2d 459, 461 (Ind.2003). Additionally, the purpose of a jury instruction "is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict." Dill v. State, 741 N.E.2d 1230, 1232 (Ind.2001) (quoting Chandler v. State, 581 N.E.2d 1233, 1236 (Ind.1991)).
Finally, when evaluating whether a trial court erred in refusing or giving an instruction, the court on appeal looks at the following factors: (1) whether the tendered instruction correctly states the law; (2) whether there is evidence in the record to support giving the instruction; and (3) whether the substance of the instruction is covered by other instructions. Fields v. State, 679 N.E.2d 1315, 1322 (Ind.1997). To obtain a reversal, a defendant must affirmatively demonstrate that the instruction error prejudiced his substantial rights. Hall v. State, 769 N.E.2d 250, 253-54 (Ind.Ct.App.2002).
Turning to the merits here, Ham directs us to this court's opinion in Stoltmann v. State, 793 N.E.2d 275, 280-81 (Ind.Ct.App.2003), trans. denied, in support of her argument for reversal. In Stoltmann, a panel of this court determined that an instruction providing that "a defendant's refusal to submit to a chemical test may be considered as evidence of the defendant's guilt" was error. Id. at 280 (emphasis added). We reasoned that while the defendant's refusal to take the chemical breath test was admissible evidence in accordance with Indiana Code section 9-30-6-3(b), the challenged instruction unduly emphasized the importance of the defendant's refusal to take the test. We also noted that the particular instruction "confuses and misleads the jury by permitting it to infer that the refusal is sufficient to establish all the elements of the offense of operating a vehicle while intoxicated, when, at best, it establishes only that he refused to take the test." Id. at 280; but see Luckhart v. State, 780 N.E.2d 1165, 1168 (Ind.Ct.App.2003)
(); Hurt v. State, 553 N.E.2d 1243, 1249 (Ind.Ct.App.1990) ().
We did not reverse Stoltmann's conviction, however, because he admitted to the arresting officer that he had operated the vehicle and was intoxicated. Stoltmann, 793 N.E.2d at 281. In light of this evidence, the panel in Stoltmann concluded that his conviction for the offense was clearly sustained by the evidence Id.
Also in Stoltmann, the panel quoted from Luckhart, where it was observed that an instruction indicating that a refusal to submit to a chemical test may be considered evidence of guilt:
In this case, as in Hurt, the trial court's instructions repeatedly referenced the issue of Luckhart's guilt, and expressly set forth the elements that had to be proved to establish Luckhart's guilt. It might have been more accurate for the trial court to have instructed the jury that Luckhart's refusal to take a chemical breath test was evidence of his intoxication rather than evidence of his guilt of the offense of driving while intoxicated, as there is no connection between his refusal to take the test and his operation of a vehicle.
Id. at 280 (quoting Luckhart, 780 N.E.2d at 1168) (emphasis added).
While at least two panels of this court have tacitly approved the giving of the instruction that the trial court tendered in this case, we decline to follow the trail that has been blazed by those several colleagues. That is, we disagree with the notion that it is proper to instruct that the refusal to take the test is evidence of either intoxication or guilt. It is our view that the instruction misstates the law and it similarly has the high potential of misleading or confusing the jury.
We acknowledge that Indiana Code section 9-30-6-3(b) does permit a defendant's refusal to submit to a chemical test to be admitted into evidence. However, it is apparent that such evidence is probative only to explain to the jury why there were no chemical test results. We again emphasize that the defendant's refusal to submit to the test is simply not probative of his guilt or intoxication, and we fail to see any nexus between a defendant's right to refuse a chemical test for intoxication and the fact that he might be in such a condition. Put another way, an instruction given to the jury like the one here bears no relationship upon the determination as to whether a defendant may be intoxicated. At best, the admission of such evidence only establishes that the defendant refused to take the test. Nowhere in Indiana Code section 9-30-6-3 is it declared that the State is entitled to a jury instruction providing that a defendant's refusal to take a chemical test may be evidence of intoxication. Moreover, during an investigation where driving while intoxicated is at issue, the defendant is advised that his or her refusal to submit to a chemical test will result in the suspension of driving privileges for one year. I.C. § 9-30-6-7; I.C. § 9-30-6-9. The defendant is not advised, however, that the fact...
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