Smith v. State

• Decision Date: 04 August 1986
• Docket Number: No. 49A02-8602-CR-51,49A02-8602-CR-51
• Parties: Gail Victoria SMITH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
• Court: Indiana Appellate Court

Page 778

496 N.E.2d 778

Gail Victoria SMITH, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 49A02-8602-CR-51.

Court of Appeals of Indiana,

First District.

Aug. 4, 1986.

Rehearing Denied Sept. 16, 1986.

Reginald B. Bishop, Indianapolis, for defendant-appellant.

Linley E. Pearson, Atty. Gen. of Indiana, Jay Rodia, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

RATLIFF, Judge.

STATEMENT OF THE CASE

The defendant appeals from the trial court's judgment convicting her of driving while intoxicated causing the death of another, a class C felony. We affirm.

FACTS

On the morning of April 17, 1985, Gail Smith (defendant) was driving her automobile eastward in Indianapolis while taking her child to school. A young Vietnamese-American child, Hau Huyn, was walking to school with his sister and her friend. Testimony at trial conflicted as to whether the three children were walking on the rocky and grassy shoulder and not on the pavement. Defendant's automobile hit Hau Huyn, knocking him to the ground so that his feet were in the stones while the rest of his body was on the grass. There was evidence that the victim may have darted out in front of the defendant's car. The victim died as a result of the accident.

The responding police officer approached the defendant at the scene of the accident. The officer detected the odor of alcohol on the defendant's breath. The officer also observed that the defendant was walking stiffly and was confused in her speech. Based upon those observations, the police officer told the defendant that she would be offered a breathalyzer test.

The defendant was taken to a roll call site where she was given three field sobriety tests. She passed the leg-stand test, but failed the walk-turn test and gaze nystagmus test. The defendant then took a breathalyzer test which revealed that her blood-alcohol concentration was .21 percent.

ISSUES

1. Did the trial court abuse its discretion when it denied the defendant's motion for continuance?

2. Was there substantial evidence of probative value to uphold the jury's finding 3. Did the trial court abuse its discretion in refusing the defendant's proposed jury instruction on the defense of accident?

that the defendant caused in fact the child's death?

4. Did the trial court err by denying the defendant's motion to suppress evidence resulting from the field sobriety tests and breathalyzer and the defendant's written statement?

5. Did the trial court abuse its discretion in sentencing the defendant to five years in prison, three of which were suspended?

DISCUSSION AND DECISION

Issue One

The defendant claims that the trial court should have granted her motion for a continuance so that she could prepare her defense of sunblindness. On August 5, 1985, the defendant filed a motion for continuance until after August 25, 1985. The defendant claimed that her expert witness needed to observe the scene of the accident on August 25th in order to evaluate the role of the sun on the accident. The sun would have been in the same position on August 25th as on April 17th, the date of the accident. The trial court denied her motion. The trial commenced on August 12, 1985.

Our supreme court recently addressed the standard of review for a trial court's ruling on a motion for continuance. Justice Pivarnik, writing for a unanimous court, held:

"Ind.Code Sec. 35-36-7-1 (Burns 1982) allows a continuance to be granted upon proper showing that there is an absence of evidence or illness of the defendant or a witness which precludes the conducting of the trial, provided a motion is made five days prior to commencement of trial and is supported by appropriate affidavits. Continuances not conforming to the statutory edicts may be granted within the sole discretion of the trial court. Carter v. State (1983), Ind., 451 N.E.2d 639. The denial of a Motion for Continuance is reversible only when the denial constituted an abuse of discretion and the record demonstrates that the accused was prejudiced. Harris v. State (1981), Ind., 427 N.E.2d 658."

Clarkson v. State (1985), Ind., 486 N.E.2d 501, 504.

The defendant's motion did not fall within any of the statutory bases of Ind. Code Sec. 35-36-7-1. The only possible ground is in subsection (a) for "the absence of evidence." However, there was no absence of evidence in the case under consideration. The expert's affidavit which accompanied the motion for a continuance did not allege an absence of evidence. The expert stated that "the facts ... indicate that the sun was in the field of vision of the defendant...." Record at 71 (our emphasis). This statement disproves any absence of evidence. The purpose of the motion was simply to enable the expert to be more precise in his determinations. Since there was no "absence of evidence" or any other statutory basis contained in Ind.Code Sec. 35-36-7-1 for the defendant's motion for continuance, we will uphold the trial court's denial of the motion in the absence of a clear showing of an abuse of discretion. Clarkson, at 504; Randall v. State (1985), Ind., 474 N.E.2d 76, 81.

We hold that the trial court did not abuse its discretion in denying the motion. The expert conceded that he could still develop sufficient information to reconstruct the circumstances of the accident scene despite the court's denial of the continuance. Record at 284. In fact, the defendant is unable to show how she was prejudiced in any way by the court's ruling. Her expert witness testified before the jury at length as to the effect of the sun on the defendant at the time of the accident. Since no prejudice was shown and the court did not abuse its discretion, we will not disturb the trial court's denial of the motion for continuance.

This year our supreme court held that prejudice need not be shown if the defendant could prove that the trial court committed a fundamental error in denying a motion for continuance. Davis v. State (1986), Ind., 487 N.E.2d 817. However, "[f]undamental error ... occurs only where it is established that adequate time was not afforded." Id. at 820. In the case at bar, the defendant had ample time to prepare her defense, even on the issue of sunblindness. Therefore, we find no reversible error.

Issue Two

Defendant claims that the state failed to prove that her intoxication caused the death of the child. At the outset, we note that we cannot reweigh the evidence nor reassess the credibility of witnesses. Freeman v. State (1985), Ind.App., 482 N.E.2d 266. Thus, we will uphold the jury's determination if there is substantial evidence of probative value to support the verdict.

Prior to 1986, the law on causation was that "the state must prove beyond a reasonable doubt that the defendant (1) operated a vehicle (2) while intoxicated, and (3) that the intoxication did directly and proximately cause serious bodily injury." Micinski v. State (1985), Ind.App., 479 N.E.2d 632, 636 (emphasis added). Consequently, the state thus had to prove that the intoxication caused the injury.

This year, our supreme court rejected this analysis. In Micinski v. State (1986), Ind., 487 N.E.2d 150, the court rejected a causation analysis based upon the driver's intoxication. The Micinski court held that the state need not prove that the defendant's intoxication caused the accident. Rather, the state simply must show that the defendant caused the accident. As the court explained:

"The statute creates a crime--driving while intoxicated--and adds higher penalties if the commission of this offense results in serious injury or the death of another person. There is, of course, a need to show causation; in the typical case a showing that the driver ran into the victim would suffice. We find nothing in the statute to indicate that the General Assembly intended to require that the State prove a causal link between the driver's intoxication and the fact that injury resulted from his driving. ...

"Analysis of this statute should focus on the driver's acts and not on speculation about whether he could have stopped if he had been sober. If the driver's conduct caused the injury, he commits the crime; if someone else's conduct caused the injury, he is not guilty. We see Ind.Code Sec. 9-4-1-54(b)(2) [now re-enacted as Sec. 9-11-2-4] as having two elements. The State need prove:

(1) That the defendant was driving while intoxicated, and

(2) That his act of doing so resulted in serious bodily injury to another person."

Id. at 154. In that case, the defendant claimed that his intoxication did not cause the accident. In language appropriate to the case at bar, the court further explained the issue of causation:

"This is not to say that a drunk driver who hits a child who has run out from between two parked cars is not entitled to ask a jury to find him not guilty because there is reasonable doubt whether he caused the collision. In fact, Micinski has made a similar argument: he asserts that the proof showed the fog and the victims may have caused the collision. The jury heard this argument and the evidence and found Micinski guilty. Our review of the evidence indicates they were entitled to do so."

Id.

In the case under consideration, the jury heard a plethora of evidence concerning causation. There was conflicting evidence on whether the victim was walking in the street. The jury also heard evidence of sunblindness and dart-out. Further, the state presented evidence that the defendant's blood-alcohol concentration was .21 percent. It was the province of the jury to resolve any conflicts in the evidence. This court will not reweigh the evidence. We hold that the jury was entitled to find that the defendant had driven under the influence and that she caused the death of the child. As Micinski said, "It was not necessary to prove that [her] intoxication caused the accident, only that [she ] caused the accident." Id. (emphasis in original). Therefore, we reject the defendant's claim of...