Regan v. State

• Decision Date: 21 April 1992
• Docket Number: No. 92A03-9111-CR-339,92A03-9111-CR-339
• Citation: 590 N.E.2d 640
• Parties: Michael J. REGAN, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.
• Court: Indiana Appellate Court

Page 640

590 N.E.2d 640

Michael J. REGAN, Appellant-Defendant Below, v. STATE of Indiana, Appellee-Plaintiff Below.

No. 92A03-9111-CR-339.

Court of Appeals of Indiana,

Third District.

April 21, 1992.

Richard J. Thonert, Romero & Thonert, Fort Wayne, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Indianapolis, for appellee-plaintiff.

STATON, Judge.

Michael J. Regan appeals his conviction for operating a vehicle while intoxicated, a Class A misdemeanor, raising eight issues for our review, which we consolidate into seven:

I. Whether the corpus delicti of the crime of operating a vehicle while intoxicated was adequately established before incriminating statements made by Regan were admitted.

II. Whether the trial court erred in denying Regan's motion to suppress statements made by him.

III. Whether the evidence was sufficient to support Regan's conviction for operating a vehicle while intoxicated and for operating a vehicle with .10% or more by weight of alcohol in the blood.

IV. Whether Indiana Code 9-11-2-1 is unconstitutional.

V. Whether the trial court erred in admitting a number of the State's exhibits.

VI. Whether the trial court erred in giving certain instructions tendered by the State.

VII. Whether the trial court erred in refusing two of the defendant's tendered instructions.

We affirm.

On the night of February 21, 1990, Robert Reavis, the owner of a towing service, responded to a telephone call requesting assistance in removing a vehicle from a ditch on County Road 500 South in Whitley County. Reavis radioed the Whitley County Sheriff, informing the dispatcher that he was proceeding to a possible automobile accident. When he reached County Road 500 South, he was flagged down by Regan, who was standing next to a late model Jeep Cherokee which was mired in the mud at the bottom of a fifteen-foot deep ditch and in danger of rolling over. As Reavis was speaking with Regan regarding the extrication of the Jeep, Deputy Dennis Ruch arrived on the scene.

Ruch asked Regan to sit in his car while he took down his name, address, and license number. As he spoke to Regan, Ruch noticed a "very strong" odor of alcoholic beverages about Regan. He asked Regan to accompany him to the Sheriff's Department to submit to an Intoxilyzer test. Regan agreed to submit to the test, and his blood alcohol content (BAC) registered .15%. Meanwhile, as Reavis was attempting to extricate the Jeep, he observed empty beer cans on the front floorboard of the Jeep, unopened beers behind the passenger's seat, and an open can of beer on the front seat. Regan was arrested for operating a vehicle while intoxicated (OWI) and was convicted pursuant to a jury trial.

I. Corpus Delicti

Regan first contends that the trial court erred in admitting statements which he made to Reavis and Deputy Ruch before the corpus delicti of the crime was established. The corpus delicti requirement seeks to prevent the admission into evidence of a confession by a defendant to a crime which never occurred. Hurt v. State (1991), Ind., 570 N.E.2d 16, 19. The rule requires evidence independent of the defendant's statement which shows that a criminal act actually occurred. Id. at 20. The evidence need not be introduced prior to the admission of the statement; it may come after. Id. Moreover, each element of the crime need not be proved beyond a reasonable doubt to establish the corpus delicti --independent evidence from which an inference may be drawn that a crime was committed in connection therewith is sufficient. Id.

Here, the State introduced evidence that somebody summoned Reavis to pull a Jeep Cherokee out of a ditch, that a number of beer cans, both full and empty, were found in the Jeep, and that a partly-full can of beer was found on the front seat of the Jeep. In addition, Reavis testified that he was flagged down by Regan, that Regan was the only person at the scene of the accident when Reavis arrived, and that the closest house was one-half mile down the country road, all supporting an inference that Regan had been driving the car. Parsons v. State (1975), 166 Ind.App. 152, 333 N.E.2d 871, 873; Groves v. State (1985), Ind.App., 479 N.E.2d 626, 628. This evidence was sufficient to establish the corpus delicti of the crime.

II. Motion to Suppress

At trial, Regan moved to suppress all evidence gained as a result of his conversations with Deputy Ruch on the grounds that the evidence was the product of an unlawful detention. The trial court found that he was not seized without probable cause and denied the motion to suppress. On appeal, Regan alleges this ruling was erroneous.

Evidence which is the product of an unlawful detention or an illegal arrest is inadmissible. Dillon v. State (1983), Ind., 454 N.E.2d 845, 851, cert. denied 465 U.S. 1109, 104 S.Ct. 1617, 80 L.Ed.2d 145. However, not every police-citizen encounter amounts to a "seizure" of the person so that an arrest or unlawful detention has occurred. Id. In determining whether a person has been "seized" for Fourth Amendment purposes, we must ascertain whether, considering all the circumstances surrounding the police-citizen encounter, the defendant entertained a reasonable belief that he was not free to leave. Id.

This case is similar to Clark v. State (1987), Ind.App., 512 N.E.2d 223, in which a police officer received a dispatch that a vehicle was off the road and a person was walking on the highway nearby. Upon proceeding to investigate, he saw the person (later identified as Clark), stopped, and asked him where he was going. Clark told him he had just run his car off the highway and was walking into town. The officer offered him a ride and soon noticed that Clark had a strong odor of alcohol about him and his eyes were watery and bloodshot. After administering a number of field sobriety tests, the officer told Clark he had probable cause to believe that he had operated his automobile while intoxicated, and administered an Intoxilyzer test, which registered .16. Faced with an argument similar to that raised by Regan, our First District held that the trial court did not err in admitting Clark's responses to the officer.

Turning to the present case, Regan makes much of the fact that he was questioned while in the officer's car. The record reveals that Regan spoke with Deputy Ruch after 9:30 p.m. on a February evening, and while they were speaking, Reavis was preparing to tow the Jeep out of the ditch. Under the circumstances, we do not find it unusual that they spoke in the squad car, rather than outside. Like in Clark, the questions which Deputy Ruch asked Regan were "routinely investigative in nature, and were non-custodial." Id. at 227. Regan was asked whether he had placed the call to the wrecker service and for his name, address, and social security number. He volunteered a description of how the Jeep came to rest in the ditch. It was during this conversation that Deputy Ruch noticed a strong odor of alcoholic beverages. Viewing the circumstances of the encounter, the trial court did not err in concluding that Regan was not "seized" without probable cause.

III. Sufficiency of the Evidence

Regan contends that the evidence was insufficient to support his conviction. In reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Rather, we consider only the evidence most favorable to the State and any reasonable inferences to be drawn therefrom, to see if there is substantial evidence of probative value to support the verdict. Fleming v. State (1991), Ind., 579 N.E.2d 73, 74.

With regard to the charge of operating a vehicle while intoxicated, the record reveals that Regan admitted he was operating the Jeep. In addition, the evidence showed that Regan ran his Jeep off of the road; the Jeep contained empty beer cans, unopened beer cans behind the passenger's seat, and a half-full can of beer on the front seat; Regan had a very strong odor of alcoholic beverages about him; and Regan's blood alcohol level tested as .15. This evidence was sufficient to sustain his conviction for operating a vehicle while intoxicated. Henriott v. State (1990), Ind.App., 562 N.E.2d 1325.

Regan challenges the constitutionality of the presumption contained in Indiana Code 9-11-4-15, cited by the State. ¹ Every statute is presumed to be constitutional and such a presumption continues until clearly overcome by a showing to the contrary. All doubts must be resolved in favor of constitutionality. Miller v. State (1987), Ind., 517 N.E.2d 64, 71. The same statute which Regan finds defective has withstood numerous constitutional challenges before this court. Chilcutt v. State (1989), Ind.App., 544 N.E.2d 856, transfer denied; Hall v. State (1990), Ind.App., 560 N.E.2d 561; Keyes v. State (1990), Ind.App., 559 N.E.2d 1216. Thus, Regan's argument has no merit. ²

With regard to the charge of operating a vehicle with .10% of alcohol in the blood, the record reveals that the Intoxilyzer 5000 and the operator were both properly certified, that proper procedures were followed in administering the test, that Regan admitted driving the Jeep, and that his blood alcohol content registered .15 subsequent to operating the vehicle. This evidence was sufficient to allow the jury to draw the inference that Regan operated his vehicle with a blood alcohol content in excess of .15. Keyes, supra, at 1218. Regan's argument that the trial court erred in denying a directed verdict on this count of the information is similarly without merit. The State presented evidence on each element of the offense. Finally, we would also note that Regan was not sentenced on this charge, operating a vehicle with .10% of alcohol in the blood; he was only sentenced on the OWI offense.

IV. Constitutionality of IC 9-11-2-1

Regan contends that Indiana Code 9-11-2-1 ³ is unconstitutional because a driver is unable to ascertain when he has...