Simons v. State

• Decision Date: 10 November 2015
• Docket Number: No. 43A04–1501–CR–10.,43A04–1501–CR–10.
• Citation: 42 N.E.3d 173 (Table)
• Parties: Kevin L. SIMONS, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

42 N.E.3d 173 (Table)

Kevin L. SIMONS, Appellant–Defendant

v.STATE of Indiana, Appellee–Plaintiff.

No. 43A04–1501–CR–10.

Court of Appeals of Indiana.

Nov. 10, 2015.

Donald R. Shuler, Barkes, Kolbus, Rife & Shuler, LLP, Goshen, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, George P. Sherman, Deputy Attorney General, Attorneys for Appellee.

MEMORANDUM DECISION

ALTICE

, Judge.

Case Summary

[1] Kevin Simons appeals his convictions and sentence for Operating a Vehicle as a Habitual Traffic Violator,¹ a class C felony; Battery² as a Class B misdemeanor; Resisting Law Enforcement³ as a Class A misdemeanor; and Operating a Vehicle While Intoxicated⁴ as a Class D felony. Simons presents five issues for our review, which we restate as follows:

1. Did the trial court abuse its discretion in denying Simons's motion to dismiss?

2. Did the trial court abuse its discretion in admitting into evidence the laboratory report of Simons's blood draw?

3. Does Ind.Code § 35–36–11–1

violate the Confrontation Clause of the United States and Indiana Constitutions?

4. Is the evidence sufficient to establish that Simons was “operating” a vehicle so as to sustain his convictions for operating a vehicle as a habitual traffic violator and operating a vehicle while intoxicated?

5. Is Simons's sentence inappropriate?

[2] We affirm.

Facts & Procedural History

[3] On the night of February 4, 2014, Steven Fields was driving home from work when he saw a car on top of a snow bank near The Frog, a local tavern in Syracuse. Fields called 911 and reported, “There's a guy in front of The Frog that just ran his vehicle up on top of a snow embankment.” State's Exhibit 1. Fields also stated to the 911 operator that the driver appeared to be “very drunk.” Id. Fields passed the scene, but circled back around to wait for a police officer to arrive.

[4] Officer Joseph Keene of the Syracuse Police Department was dispatched around 11:17 p.m. on a report of a vehicle stuck in the snow. Upon arrival at the scene, Officer Keene observed a small green car mostly out of the roadway and stuck on top of a snow bank just as reported. Officer Keene also observed a white truck backed up to the car. Officer Keene activated his emergency lights and pulled his police car in behind the green car. Officer Keene then directed Reserve Officer Mike Barger, who was riding along with Keene, to speak with the individual in the white truck while he went to speak with the driver of the green car.

[5] As Officer Keene approached the green car, he noted that the car's engine was running and the car was in gear, as he heard the sound of the green car's tires spinning in the snow. The driver's side door was open and Officer Keene observed Simons sitting in the driver's seat of the car. No one else was in the car. Officer Keene first asked Simons if he was okay and Simons indicated he was. Simons then volunteered that he “was trying to get home.” Transcript at 254. Officer Keene noticed a strong odor of an alcoholic beverage coming from Simons's breath. He further observed that Simons's “speech was very slurred,” he “had [a] terrible time enunciating his words,” and he was not responding to Officer Keene's requests. Id. at 256. Specifically, it took Simons several attempts to turn the car's engine off after Officer Keene told him to do so. Simons also fumbled with retrieving his wallet out of his pants pocket so he could access his identification card.

[6] Officer Keene returned to his police car to process Simons's identification card, at which time he learned that Simons had a lifetime suspension on his record and was classified as a habitual traffic violator. He then returned to the car and asked Simons to participate in field sobriety tests. Simons initially agreed to participate in the horizontal gaze nystagmus test, but ultimately refused to complete it or participate in any further field sobriety tests. Simons also informed Officer Keene that he would not agree to a certified chemical test. Officer Keene then placed Simons under arrest and, believing Simons may have been too intoxicated to be taken to jail, transported him to a local hospital for medical clearance.

[7] Once at the hospital, Simons maintained that he was not the driver of the car and again refused to cooperate by submitting to a chemical test. Officer Keene then prepared a probable cause affidavit and request for a search warrant seeking to obtain a blood sample from Simons. Based upon the information Officer Keene provided in the probable cause affidavit, a judge issued a search warrant to obtain a blood sample from Simons.

[8] At the hospital, Simons was “combative” with the officers and medical staff, especially when they tried to obtain his blood sample pursuant to the search warrant. Id. at 311. Simons was flailing, kicking his legs, and causing such a commotion in the room at the hospital that additional staff entered to help restrain him. In total, it took six individuals to restrain Simons for purposes of the blood draw. Officer Keene described Simons's demeanor as being “extremely angry.” Id. at 269. During the altercation, Simons kicked Linnia Woods, a phlebotomist who was helping to restrain Simons for the blood draw, in the wrist. An analysis of Simons's blood revealed that he had a blood alcohol level of .251.

[9] On February 20, 2014, the State charged Simons with operating a vehicle as a habitual traffic violator, a Class C felony; battery as a Class D felony; operating while intoxicated, a Class A misdemeanor, along with an enhancement for operating while intoxicated as a Class D felony; and resisting law enforcement as a Class A misdemeanor. Contemporaneously with the charging information, the State filed a Notice of Intent to Introduce Lab Report pursuant to Ind.Code § 35–36–11–2

.

[10] On January 16, 2015, the State sought to amend the battery charge to a Class B misdemeanor and to allow for a habitual offender enhancement. On the same day, Simons filed a belated motion to dismiss the charges against him based upon the loss or destruction of evidence. Following a hearing, the trial court denied Simons's motion to dismiss. The court also granted the State's motion to amend, but informed Simons that as a result, he was entitled to a continuance of the jury trial if he so wished. When Simons requested a continuance, the State moved to dismiss the habitual offender enhancement.

[11] A two-day jury trial commenced on January 27, 2015. Before the start of the trial, the parties filed a written Offer of Stipulation, wherein Simons admitted that his driving privileges were validly suspended for life on the day in question. A motion in limine covered other aspects of Simons's driving record. At the conclusion of the evidence, the jury found Simons guilty of operating a vehicle as a habitual traffic violator, battery, resisting law enforcement, and operating a vehicle while intoxicated. Simons then pleaded guilty to the enhancement of operating a vehicle while intoxicated as a Class D felony. The trial court held a sentencing hearing on February 23, 2015, and sentenced Simons to an aggregate term of six years and nine months executed. Additional facts will be provided where necessary.

1. Motion to Dismiss

[12] Simons argues that the trial court abused its discretion in denying his motion to dismiss. We review a trial court's denial of a motion to dismiss for an abuse of discretion. Ingram v. State, 760 N.E.2d 615, 618 (Ind.Ct.App.2001)

, trans. denied. In reviewing a trial court's decision for an abuse of discretion, we reverse only where the decision is clearly against the logic and effect of the facts and circumstances. Id.

[13] Simons's motion to dismiss is based upon his claim that there was a video of his arrest and that such video contained information that was materially exculpatory or was potentially useful to resolve any conflict between his and Officer Keene's testimony regarding the events leading up to his arrest. Simons maintains that the loss or destruction of the video recording of his arrest violates his due process rights, and therefore, the trial court should have dismissed the charges against him.

[14] When determining whether a defendant's due process rights have been violated by the State's failure to preserve evidence, we must first decide whether the evidence is potentially useful evidence or materially exculpatory evidence. State v. Durrett, 923 N.E.2d 449, 453 (Ind.Ct.App.2010)

(citing Land v. State, 802 N.E.2d 45, 49 (Ind.Ct.App.2004), trans. denied ). Specifically,

[e]vidence is materially exculpatory if it “possess[es] an exculpatory value that was apparent before the evidence was destroyed, and [is] of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Noojin v. State, 730 N.E.2d 672, 675–76 (Ind.2000)

(quoting California v. Trombetta, 467 U.S. 479, 489, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984) ). Exculpatory evidence is defined as “[e]vidence tending to establish a criminal defendant's innocence.” Black's Law Dictionary 597 (8th ed.2004). A prosecutor's duty to preserve exculpatory evidence is limited to evidence that might be expected to play a significant role in the defendant's defense. Noojin, 730 N.E.2d at 675 (quoting Trombetta, 467 U.S. at 488, 104 S.Ct. 2528 ). Failure to preserve material exculpatory evidence violates due process regardless of whether the State acted in good or bad faith. Blanchard v. State, 802 N.E.2d 14, 27 (Ind.Ct.App.2004) (citing Arizona v. Youngblood, 488 U.S. 51, 57, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988) ).

Evidence is merely potentially useful if “no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Id. at 26

(citing Youngblood, 488 U.S. at 57, 109 S.Ct. 333 ). The State's failure to preserve potentially useful evidence does not constitute a violation of due process rights unless the defendant shows...