Robertson v. State
| Decision Date | 24 January 1973 |
| Docket Number | No. 3--1072A71,3--1072A71 |
| Parties | John F. ROBERTSON, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee. |
| Court | Indiana Appellate Court |
Robert Randle, Hopkins & Randle, Rensselaer, for defendant-appellant.
Theo. L. Sendak, Atty. Gen., Harry L. Sauce, III, Deputy Atty. Gen., for plaintiff-appellee.
The appellant was charged by way of affidavit of the offense of driving and operating an automobile while under the influence of intoxicating liquor on the 20th day of September, 1970. The case was tried before the court without the intervention of a jury wherein the defendant was found guilty and sentenced to the Indiana State Farm for a period of 30 days together with a fine in the sum of $100.00.
The evidence most favorable to the State discloses that two Indiana State Police Officers were riding in their patrol car on Interstate Highway 65 in the early morning hours of September 20, 1970 when that patrol car was struck from the rear by a car driven by the Appellant. The force of the impact caused the police car to roll over on its right side and slide off the roadway. One of the officers was knocled unconscious but was revived and not seriously injured. The other officer crawled out of the car and noticed another car about 100 feet away and went to check the occupant. Upon arriving at the other vehicle he noticed the Appellant in the vehicle and detected a strong odor of alcohol. The Appellant was injured and was administered first aid by the investigating officer to prevent shock and to stop the bleeding. The Appellant was hollering, waving his arms and threshing about inside the car. There was one can of beer unopened attached to plastic binding used in six packs lying on the floor of the Appellant's car. The Appellant was talking wildly and was disoriented. The investigating Indiana State Police Officer determined that the Appellant was intoxicated and at the trial so testified. The other Indiana State Police Officer testified that the Appellant's speech was slurred but he was loud and boisterous, that he had a thick tongue, that there was a strong odor of alcohol on his breath. Based upon these facts and his several years experience as a Police Officer he testified that he believed the Appellant was intoxicated at that particular time and place. Another Indiana State Police Officer conducted a breathalizer test on the Appellant approximately two and one-half hours after the accident at a nearby hospital. That particular officer was skilled and educated in the operation of a breathalizer machine. That test showed the Appellant has .12 per cent level on a scale in which .10 per cent is considered intoxicated. At the time of the breathalizer test there was still a strong odor of alcohol on the Appellant's person and breath. Based upon these observations, and based upon the experience of the officer administering the test and the test results that officer concluded and testified that the Appellant was intoxicated. The evidence also discloses that the Appellant was in the continuous custody of the Indiana State Police between the time of the collision here in question and the administration of the breathalizer test some two and one-half hours after. During that period of two and one-half hours the Appellant had no opportunity to consume any alcoholic beverages.
The appellant argues two issues that are closely interrelated and will be dealt with together here. He argues that the conviction is not supported by sufficient evidence and that it was error to permit a doctor to render an expert opinion in response to a hypothetical question which was based upon facts previously placed in evidence.
In regard to the contention of the Appellant that the conviction is not sustained by sufficient evidence he sets out several instances in which the Police Officers gave somewhat conflicting testimony. However, the Appellant has failed to cite one instance in which there was conflict as to the essential probative facts necessary to sustain a conviction of driving facts necessary to the influence or intoxicating liquor. There is substantial evidence of probative value on each element of the offense sufficient for the trier of fact to draw an inference that the Appellant was guilty of being in an intoxicated condition while operating a motor vehicle. It is an elementary principle which has been constantly and recently repeated that when the sufficiency of evidence is an issue on appeal the appellate tribunal will not weigh the evidence nor determine the credibility of witnesses. Instead this court will look only to the evidence which is most favorable to the State and all reasonable inference to be drawn therefrom to determine if there is sufficient evidence of probative value so that the trier of fact might reasonably infer guilt beyond a reasonable doubt. When there is such evidence a conviction resting thereon will be affirmed. See Williams v. State, Inc.App., 288 N.E.2d 580 (1972), Capps v. State, Ind., 282 N.E.2d 833 (1972), and Asher v. State, 253 Ind. 25, 244 N.E.2d 89 (1969). There is such evidence to support the conviction in this case.
The State called Dr. Ahler as its witness and the following questions, answers and rulings occurred:
'Q. Okay lost my place here, just a minute, Dr. Ahler, assuming, assume the following facts, if you would, a man is involved in an automobile accident, type of the accident is a rear-end collision, the man is driving the vehicle that is coming from the rear--uh--the front vehicle is going between 20 and 40 miles per hour, the vehicle the man is driving is going between 70 and 80 miles per hour, he's driving the vehicle with his headlights out, usually upon, immediately upon--uh--going to him after the accident and in the hour, in the roughly 2 1/2 hours following the following characteristics are noted about his behavior--
A. Now this is the man that is driving the--
Q. -- the rear vehicle
A. -- the rear vehicle
Q. Yes. The, he has the odor of alcoholic beverages about his breath and person, his, his speech is slurred, he's thick-tongued, hard to understand, he lacks control of his limbs, he's disorganized as to where he is and why, he's loud and boisterous and verbose, he displays, to some extent, a sense of power in the sense that he knows what he can do and what don't do--uh--he is, he, he does not follow instructions--uh--he has some lacerations about the face, based on these facts, doctor, and based on your expertise, do you have an opinion as to whether such a man would be under the influence of intoxicating beverage or liquor.
A. Based on what you say--uh--it certainly sounds as though such a person would be under the influence of some intoxicating...
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Conard v. Mitchell Industries, Inc., 1--772A28
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