Sering v. State
| Decision Date | 30 January 1986 |
| Docket Number | No. 2-1184A332,2-1184A332 |
| Citation | 488 N.E.2d 369 |
| Parties | Harry SERING, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below). |
| Court | Indiana Appellate Court |
William B. Powers, Indianapolis, for appellant (defendant below).
Linley E. Pearson, Atty. Gen., Michael Gene Worden, Deputy Atty. Gen., Office of Atty. Gen., Indianapolis, for appellee (plaintiff below).
Defendant-appellant Harry Sering appeals his conviction of operating a vehicle with a blood alcohol content (BAC) of .10%, a class D felony and operating a vehicle while intoxicated, a class A misdemeanor. 1 Sering contends there is insufficient evidence to sustain his conviction on the issue of probable cause and on the elements of intoxication and BAC of .10%.
The State, in its brief, suggests the trial court committed fundamental error in entering judgments of conviction and sentencing Sering for the two alcohol related driving offenses; by entering judgments of conviction for operating a vehicle with a BAC of .10%, both as a class C misdemeanor and as a class D felony; and, in entering a judgment against Sering for the infraction of driving across center line.
Sering's conviction for operating a vehicle with BAC of .10% is reversed; the remaining convictions and the infraction judgments are affirmed.
The following evidence favorable to the State was adduced at trial: Officer Jarrett of the Indianapolis Police Department observed Sering around 4:20 a.m. on the morning of March 3, 1984. Sering's car was traveling on East Washington Street in Indianapolis at 45-50 miles per hour in a 35 mile per hour zone. The car was weaving from side to side, crossing the center line, and drifting sharply to the right. Sering's car crossed the center line seven times in a ten block distance along Washington Street. Officer Jarrett turned on his red strobe lights, spotlight, and siren and attempted to stop Sering for three blocks before Sering turned into a White Castle restaurant parking lot.
According to Officer Jarrett, Sering exited his car "limply". His speech was thick, slurred, and repetitive. His eyes were glassy and his clothes were rumpled. He stumbled and staggered while attempting to walk and stand. There also was a strong odor of alcohol on Sering's breath and person. In addition, Officer Jarrett testified he observed empty beer cans in Sering's car and found a can of beer in Sering's left coat pocket. A license check revealed Sering's operator's license had been suspended since January 19, 1984. Sering was unable to produce evidence of vehicle registration. Finally, a check of the license plate on the vehicle showed the plate had been issued to a different car.
Finally, Officer Jarrett administered a three part field sobriety test which Sering failed to satisfactorily complete. Officer Jarrett then explained the Indiana implied consent law and offered Sering a breath test which he agreed to take. Officer Jarrett transported Sering to police headquarters where he administered the test. The test results showed a BAC of .17%.
Sering was charged and found guilty of operating a vehicle with BAC .10%, as a class D felony; operating a vehicle while intoxicated, a class A misdemeanor; driving while license suspended, a class A misdemeanor; 2 speeding, a class C infraction; 3 driving across center line, a class C infraction; 4 and improper plates, a class C infraction. 5
The trial court sentenced Sering to two (2) years for operating a vehicle with BAC .10%, as a class D felony; one (1) year for operating a vehicle while intoxicated, as a class A misdemeanor; 6 and 365 days for driving while license suspended, as a class A misdemeanor. All sentences were ordered served concurrently. 7
On appeal Sering argues the evidence at trial failed to establish the police officer had probable cause to initially stop Sering and, therefore, his convictions should be reversed.
This argument is meritless. Probable cause for the initial stop was never an issue before the trial court. It is not an element of any of the offenses of which Sering was convicted nor was probable cause or the initial stop made an issue by Sering. He neither moved to suppress any evidence nor did he object to the admission of any evidence on the grounds the evidence was the product of an improper initial stop. An appellant may not raise an issue on appeal based on grounds not raised at trial. Beland v. State, 476 N.E.2d 843 (Ind.1985). Indiana law requires an appellant to object and specifically state the grounds for the objection in order to preserve an issue for appeal. Smith v. State, 475 N.E.2d 1139 (Ind.1985).
Sering also asserts the evidence at trial was insufficient to sustain his conviction for operating a vehicle while intoxicated and operating a vehicle with BAC .10%. Upon a review for sufficient evidence, this court will neither weigh the evidence nor judge the credibility of the witnesses. Rather, we examine only the evidence most favorable to the State and all reasonable inferences to be drawn therefrom. If, from this examination, there is substantial evidence of probative value to support the conclusion the defendant is guilty beyond a reasonable doubt, the conviction will not be set aside. Hobson v. State, 471 N.E.2d 281 (Ind.1984).
Sering raises two factual allegations as the basis of his sufficiency challenge. Sering testified: 1) he was not given a field sobriety test other than walking from one vehicle to another and 2) he was given two breath tests to measure BAC. He further testified the first test gave a result of .09% and it was not until a second test was administered that the .17% result was obtained. Officer Jarrett testified Sering was given a three part field sobriety test and only one breathalyzer test. Sering argues his contradictions of Officer Jarrett's testimony created a reasonable doubt which renders the evidence insufficient to sustain his convictions on the alcohol related driving offenses.
Sering's sufficiency argument would have us judge his and Officer Jarrett's credibility as witnesses and weight the conflicting evidence. This we cannot do. The evidence most favorable to the State reveals Sering's car was weaving from side to side, crossing the center line, and drifting sharply to the right. Sering's speech was thick and slurred, his eyes glassy, his clothes rumpled, and he smelled of alcohol. Furthermore, Sering failed a three part sobriety test and his BAC verifier test results were .17%. This evidence is sufficient for a reasonable fact finder to find Sering guilty of the two alcohol related offenses beyond a reasonable doubt. See Garland v. State, 452 N.E.2d 1021 (Ind.App.1983); Johnson v. State, 450 N.E.2d 123 (Ind.App.1983); Steward v. State, 436 N.E.2d 859 (Ind.App.1982).
The State, in its brief, suggests a number of fundamental errors with respect to Sering's convictions and sentences.
The State questions the propriety of Sering's separate convictions and sentences for operating a vehicle with BAC of .10%, I.C. Sec. 9-11-2-1 and operating a vehicle while intoxicated, I.C. Sec. 9-11-2-2. Relying on the doctrine of former jeopardy, the State argues that a person violating I.C. Sec. 9-11-2-1 would also violate I.C. Sec. 9-11-2-2 and, therefore, cannot be convicted of both offenses if the convictions arise from the same criminal act or course of conduct. The State finds support for this contention in the definition of "intoxication":
" 'Prima facie evidence of intoxication' includes evidence that at the time of an alleged violation there was ten hundredths percent (.10%), or more, by weight of alcohol in the person's blood."
Ind.Code Ann. Sec. 9-11-1-7 (Burns Supp.1985). 8 Therefore, according to the State, a violation of I.C. Sec. 9-11-2-1 is prima facie a violation of I.C. Sec. 9-11-2-2, and convictions for both offenses may not stand. For a reason other than that argued by the State, we agree.
The Double Jeopardy Clause of the Fifth Amendment consists of three guarantees:
North Carolina v. Pearce, 395 U.S. 711, 717, 89 S.Ct. 2072, 2076, 23 L.Ed.2d 656 (1969) (footnotes omitted). Here we are concerned with the third guarantee which protects against multiple punishments for the same offense.
In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 673, 74 L.Ed.2d 535 (1983) the Supreme Court addressed the question whether multiple punishments for the offenses of first degree robbery and armed criminal action violate the Double Jeopardy Clause of the Fifth Amendment. In determining the Constitution does not preclude imposition of the two punishments, the Court stated, "The Double Jeopardy Clause does no more than prevent the sentencing court from prescribing a greater punishment than the legislature intended." 103 S.Ct. at 678. The Court found that, although the Missouri Supreme Court construed the two statutes at issue as defining the same crime, the legislature intended punishments for violation of the statutes to be cumulative:
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