Rutledge v. State

• Decision Date: 19 March 2015
• Docket Number: No. 85A04–1407–CR–330.,85A04–1407–CR–330.
• Citation: 28 N.E.3d 281
• Parties: Cody RUTLEDGE, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

28 N.E.3d 281

Cody RUTLEDGE, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 85A04–1407–CR–330.

Court of Appeals of Indiana.

March 19, 2015.

Joe Keith Lewis, Marion, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Jodi Kathryn Stein, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

Opinion

BROWN

, Judge.

[1] Cody Rutledge appeals his convictions for operating a vehicle while intoxicated as a class D felony and driving while suspended as a class A misdemeanor and his status as an habitual substance offender. Rutledge raises two issues which we consolidate and restate as whether the trial court abused its discretion by admitting certain evidence. We affirm.

Facts and Procedural History

[2] Around midnight or in the early morning hours of July 6, 2013, Wabash County Sheriff's Deputy Dustin Hurst was driving on patrol with Reserve Deputy David Brinson and on his way to Lagro, Indiana. Deputy Hurst encountered a maroon minivan and observed that it “appeared that the driver was having a hard time keeping the vehicle on the roadway,” “it appeared as it would approach the edge of the roadway, it would jerk back, multiple times ... um, trying to stay on the road,” and the driver jerked the wheel and it “wasn't just from bumps.”¹ Transcript at 24, 49. Reserve Deputy Brinson observed the minivan “would drift off the road, come back on the road.” Id. at 54. Deputy Hurst followed the minivan until it pulled into a residential driveway. He drove by the minivan, read the license plate number, continued to a parking lot, and entered the license plate number into his computer to determine if the minivan “belonged there,” which took a few seconds. Id. at 25. The address related to the license plate was in La Fontaine, and Deputy Hurst determined that the residence where the minivan was located was not in La Fontaine. Deputy Hurst started back and observed that the minivan had already backed out and was starting onto the road again “[s]o, it stayed a very short ... time there and it continued east from there.” Id. at 26.

[3] Deputy Hurst turned around and saw that the minivan entered the Main Street of Lagro, went through a stop sign, traveled approximately two blocks, and then pulled into another residence. Deputy Hurst continued by to a street, turned around, and returned to the location of the minivan which took about ten to thirty seconds.² During this time, he did not observe anybody around the minivan, any dome light illuminate, or any door open. Reserve Deputy Brinson did not observe any other vehicles, anything happening around the minivan, or any dome light illuminate.

[4] Deputy Hurst approached the minivan with his vehicle facing the driver's side of Rutledge's minivan and pulled up perpendicular to it. He could not initially tell with his headlights if anyone was sitting in the minivan and did not activate his red and blue lights. He later testified that he was “just going up to check on the driver and kind of see if they belonged where they were at. What was going on.” Id. at 29.

[5] Deputy Hurst exited his vehicle, walked up to the driver's side of the minivan, and observed Rutledge sitting in the driver's seat “lying side wise over the ... center console of the vehicle with his head resting on the passenger seat.” Id. at 37. Reserve Deputy Brinson also exited Deputy Hurst's vehicle and went to the back corner of the minivan. Deputy Hurst tapped on the driver's side window, Rutledge sat up, and they had a brief discussion before Rutledge exited the vehicle. Either Rutledge or Deputy Hurst opened the door so they could communicate.³ Deputy Hurst asked Rutledge what was going on, and Rutledge said that he had been asleep and did not know what was going on. Deputy Hurst noticed an odor of an alcoholic beverage, that Rutledge's eyes were red and glassy, that his speech was slightly slurred, and observed an open alcohol container in the driver's side of the console. At one point during the conversation, Rutledge said that the keys were not in the ignition, and Deputy Hurst located the keys on the passenger side floor.

[6] Deputy Hurst asked Rutledge to step out of the vehicle. Rutledge completed a partial field sobriety test but then stated that he did not want to participate in any more such tests. Specifically, Deputy Hurst completed “about two-thirds of the way through the horizontal gaze nystagmus test” before Rutledge advised that he did not wish to participate any further. Id. at 38. Rutledge said that he was not operating the vehicle, that a friend had driven him to Lagro, and that the friend had left. Deputy Hurst stated that he did not see the dome light illuminate, and Rutledge said that maybe someone climbed out the window.⁴ Deputy Hurst asked Rutledge if he had a driver's license, and Rutledge indicated that he did not.

[7] Deputy Hurst offered Rutledge a certified chemical test and gave him the implied consent warning, and Rutledge refused to take the test. Deputy Hurst transported Rutledge to the Sheriff's Department and obtained a search warrant for a blood draw. The blood was later determined to contain .19 grams of alcohol per hundred milliliters of blood.

[8] On July 8, 2013, the State charged Rutledge with operating a vehicle while intoxicated as a class D felony and driving while suspended as a class A misdemeanor. On November 20, 2013, the State alleged that Rutledge was an habitual substance offender. On February 11, 2014, the State charged Rutledge with operating a vehicle with .15 grams of alcohol as a class A misdemeanor.

[9] On June 17 and 18, 2014, the court held a jury trial and the first phase addressed the charges of driving while suspended as a class A infraction, operating a vehicle while intoxicated as a class C misdemeanor, and operating a vehicle with .15 grams of alcohol as a class A misdemeanor. Deputy Hurst testified regarding his observations of the minivan before actually approaching the vehicle, and defense counsel raised an objection to any testimony or evidence based upon the traffic stop. Defense counsel objected on the basis of the Fourth Amendment of the United States Constitution and Article 1, Section 11 of the Indiana Constitution

and argued that there was no reason for the traffic stop as Deputy Hurst observed no improper driving. Defense counsel also argued that “I don't believe you can establish a reasonable stop on the grounds that a vehicle is not from the locale, location ... that it's observed at.” Id. at 32.

[10] The prosecutor asked Deputy Hurst if he actually stopped the minivan, and Deputy Hurst said that he did not. He testified that his reason for approaching the minivan was that “it seemed to [him] that every time the police car would get behind his vehicle, it would pull into a residence in an attempt to kind of elude me” and “basically just to speak with the driver and see what, you know, kind of what they were up to.” Id. at 33. The prosecutor argued that there was not a stop and that Deputy Hurst had “a reason to investigate what's going on with this car or this driver, uh, to see if something's wrong or ... what is happening.” Id. at 34. Defense counsel argued that there was no need of assistance and that the idea that the person in the minivan was attempting to elude Deputy Hurst was not a basis for a traffic stop or a Terry style investigation. Id. at 34.

[11] The court stated:

[I]t's kind of a unique fact pattern that's before me I think largely because, um, of, of the state that Mr. Rutledge was in when he was encountered by Deputy Hurst, uh, in, in that it may have been a consensual encounter, an encounter but for the fact that he's, uh, asleep. Um, I think that's evidence that's going to be presented. Uh, if, if it's not a consensual encounter, I think that it has to be, you know, the, the investigatory, um, stop. Is it really a stop? I don't know that it's [sic] movement was impeded in any fashion. I don't know based on the evidence before me that he was restricted in anyway from moving or leaving the scene. Again, uh, he was apparently unconscious. But if I look in, um, in, with an eye towards seeing whether or not if it was an investigatory stop, whether or not the totality of the circumstances, um, makes it, uh, arises to reasonable suspicion that criminal activity was afoot. I, I think that it was. I, I think that there was, uh, reasonable suspicion, uh, that criminal activity was afoot based on the totality of the circumstances which would include the, the time of day, the, uh, behavior, the fact, uh, that he's pulling in to a variety of, um, or at least two different driveways during this time period. Uh, the Officer testified that he thought that that was peculiar, he thought that he was eluding him and based on the totality of the circumstances, I think that it was, um, that does arise to reasonable suspicion. Again, I'm not sure, however, that we even get to that point because, uh, [Rutledge] was apparently, uh, not awake and so, uh, if he had been, uh, it might have been a consensual encounter. So, I, I, I'm also a bit troubled by the fact that I don't know if there's enough evidence before me to find that he was impeded in anyway so that it was a stop. I think the closest thing is the investigatory stop. So, I think if it arises to that level, there was reasonable suspicion. So, I would, uh, for those reasons and all other reasons supported by the record, overrule the objection.

Id. at 35–36. Defense counsel then asked that the court show that his objection constitute a continuing objection, and the court granted the request.

[12] Rutledge and his brother testified that Rutledge's brother drove him to the location where Deputy Hurst encountered him, threw the car keys on the floorboard, and walked away. The jury found Rutledge guilty as charged. After Rutledge pled guilty to the operating while intoxicated and driving while suspended enhancements, the jury determined that Rutledge was an...