MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jan 31 2017, 8:36 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General Indianapolis, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Calvin Cole, January 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-575 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff. Graham, Judge Trial Court Cause No. 49G07-1505-CM-15359
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 1 of 6 Summary [1] Calvin Cole appeals his conviction for Class A misdemeanor operating a
vehicle while intoxicated and in a manner that endangers a person.1 We affirm.
Issue [2] Cole raises one issue for our review, which we restate as whether the trial court
abused its discretion by admitting certain evidence.
Facts [3] On May 3, 2015, Cole went out with his friend, Rochelle Matthews, to
celebrate Matthews’s birthday. Cole rode his motorcycle to Matthews’s house,
and Matthews asked Cole to take her for a ride on his motorcycle. Matthews
declined to wear the helmet Cole offered her; she rode on the back of the
motorcycle and held on to Cole’s waist. The two stopped at a bar for about two
hours, where Cole drank Hennessy cognac. After Cole and Matthews left the
bar, they stopped at a motorcycle club for about thirty minutes.
[4] Cole and Matthews left the club to return to Matthews’s house. Matthews
again rode the motorcycle, without a helmet, holding onto Cole’s waist.
Shortly after Cole turned into Matthews’s neighborhood, he hit a pothole, and
Matthews fell off the back of the motorcycle.
1 Cole was also convicted of Class A misdemeanor operating a vehicle with a blood alcohol content above .15. See Ind. Code § 9-30-5-1(b).
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 2 of 6 [5] A neighbor called 911 and reported hearing a motorcycle “slam onto the
ground” and said the motorcycle was laying on the ground running, but there
was no one on it. Ex. 1. The neighbor described the incident as a crash and
said it was loud. Officers from the Indianapolis Metropolitan Police
Department responded to the call and reported Cole appeared to be intoxicated.
Cole agreed to take a breath test, and his blood alcohol content was .185. Cole
testified “no,” he was “not at all” drunk. Tr. p. 226.
[6] On May 4, 2015, the State charged Cole with two Class A misdemeanors—
operating a vehicle with a blood alcohol content about .15 and operating a
vehicle while intoxicated in a manner that endangers a person. A jury found
Cole guilty of both counts, and the trial court sentenced him to 365 days of
incarceration with 335 days suspended to probation. Cole now appeals his
conviction for operating a vehicle while intoxicated in a manner that endangers
a person, but not his conviction for operating a vehicle with a blood alcohol
content about .15.
Analysis [7] Cole contends the trial court abused its discretion by admitting into evidence a
recording of the 911 call. He argues the recording contained testimonial
hearsay, that he did not have an opportunity to cross-examine the neighbor
who made the call as required by the Sixth Amendment to the United States
Constitution, and that the jury may have relied on the neighbor’s statements to
support the endangerment element of his conviction.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 3 of 6 [8] At the outset, we note that the State argues Cole waived his Sixth Amendment
argument because, during trial, he failed to object on the constitutional grounds
he raises on appeal. At trial, Cole argued that the State did not lay a proper
foundation for the audio recording. He also, however, stated, “The CD that
they hope to admit contains testimonial hearsay, your Honor.” Tr. p. 93. We
conclude Cole properly preserved this issue.
[9] We review a trial court’s ruling regarding the admission or exclusion of
evidence for an abuse of discretion. Bishop v. State, 40 N.E.3d 935, 943 (Ind. Ct.
App. 2015), trans. denied. “We reverse only where the decision is clearly against
the logic and effect of the facts and circumstances.” Id. “Even if the trial
court’s decision was an abuse of discretion, we will not reverse if the admission
constituted harmless error.” Id. When an error in the admission of evidence
involves a constitutional right, we will conclude it is harmless only if it is
harmless beyond a reasonable doubt. Mack v. State, 23 N.E.3d 742, 756 (Ind.
Ct. App. 2014), trans. denied. “Our analysis for such questions requires this
court to assess ‘whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.’” Id. (quoting
Chapman v. California, 87 S. Ct. 824, 827, 386 U.S. 18, 23 (1967)).
[10] Here, we need not determine whether the trial court erred in admitting the
audio recording at issue. Instead, we conclude that, even if the recording
contained impermissible testimonial hearsay, its admission was harmless
beyond a reasonable doubt because the jury would have found Cole guilty even
without the evidence at issue. See Mack, 23 N.E.3d at 756.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 4 of 6 [11] To support Cole’s conviction for operating a vehicle while intoxicated in a
manner that endangers a person, the State was required to prove Cole operated
a vehicle while intoxicated and that he did so in a manner that endangered a
person. See Outlaw v. State, 929 N.E.2d 196 (Ind. 2010) (adopting and
incorporating by reference Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App.
2009)). “Intoxicated” means one is under the influence of alcohol “so that
there is an impaired condition of thought and action and the loss of normal
control of a person’s faculties.” Ind. Code § 9-13-2-86. “Prima facie evidence
of intoxication includes evidence that at the time of an alleged violation the
person had at least a .08 BAC.” Temperly v. State, 933 N.E.2d 558, 566 (Ind. Ct.
App. 2010) (citing I.C. § 9-13-2-131) (quotations omitted), trans. denied, cert
denied.
[12] “The element of endangerment can be established by evidence showing that the
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any court except for the purpose of establishing Jan 31 2017, 8:36 am
the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Ellen M. O’Connor Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General Indianapolis, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Calvin Cole, January 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1603-CR-575 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Clayton A. Appellee-Plaintiff. Graham, Judge Trial Court Cause No. 49G07-1505-CM-15359
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 1 of 6 Summary [1] Calvin Cole appeals his conviction for Class A misdemeanor operating a
vehicle while intoxicated and in a manner that endangers a person.1 We affirm.
Issue [2] Cole raises one issue for our review, which we restate as whether the trial court
abused its discretion by admitting certain evidence.
Facts [3] On May 3, 2015, Cole went out with his friend, Rochelle Matthews, to
celebrate Matthews’s birthday. Cole rode his motorcycle to Matthews’s house,
and Matthews asked Cole to take her for a ride on his motorcycle. Matthews
declined to wear the helmet Cole offered her; she rode on the back of the
motorcycle and held on to Cole’s waist. The two stopped at a bar for about two
hours, where Cole drank Hennessy cognac. After Cole and Matthews left the
bar, they stopped at a motorcycle club for about thirty minutes.
[4] Cole and Matthews left the club to return to Matthews’s house. Matthews
again rode the motorcycle, without a helmet, holding onto Cole’s waist.
Shortly after Cole turned into Matthews’s neighborhood, he hit a pothole, and
Matthews fell off the back of the motorcycle.
1 Cole was also convicted of Class A misdemeanor operating a vehicle with a blood alcohol content above .15. See Ind. Code § 9-30-5-1(b).
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 2 of 6 [5] A neighbor called 911 and reported hearing a motorcycle “slam onto the
ground” and said the motorcycle was laying on the ground running, but there
was no one on it. Ex. 1. The neighbor described the incident as a crash and
said it was loud. Officers from the Indianapolis Metropolitan Police
Department responded to the call and reported Cole appeared to be intoxicated.
Cole agreed to take a breath test, and his blood alcohol content was .185. Cole
testified “no,” he was “not at all” drunk. Tr. p. 226.
[6] On May 4, 2015, the State charged Cole with two Class A misdemeanors—
operating a vehicle with a blood alcohol content about .15 and operating a
vehicle while intoxicated in a manner that endangers a person. A jury found
Cole guilty of both counts, and the trial court sentenced him to 365 days of
incarceration with 335 days suspended to probation. Cole now appeals his
conviction for operating a vehicle while intoxicated in a manner that endangers
a person, but not his conviction for operating a vehicle with a blood alcohol
content about .15.
Analysis [7] Cole contends the trial court abused its discretion by admitting into evidence a
recording of the 911 call. He argues the recording contained testimonial
hearsay, that he did not have an opportunity to cross-examine the neighbor
who made the call as required by the Sixth Amendment to the United States
Constitution, and that the jury may have relied on the neighbor’s statements to
support the endangerment element of his conviction.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 3 of 6 [8] At the outset, we note that the State argues Cole waived his Sixth Amendment
argument because, during trial, he failed to object on the constitutional grounds
he raises on appeal. At trial, Cole argued that the State did not lay a proper
foundation for the audio recording. He also, however, stated, “The CD that
they hope to admit contains testimonial hearsay, your Honor.” Tr. p. 93. We
conclude Cole properly preserved this issue.
[9] We review a trial court’s ruling regarding the admission or exclusion of
evidence for an abuse of discretion. Bishop v. State, 40 N.E.3d 935, 943 (Ind. Ct.
App. 2015), trans. denied. “We reverse only where the decision is clearly against
the logic and effect of the facts and circumstances.” Id. “Even if the trial
court’s decision was an abuse of discretion, we will not reverse if the admission
constituted harmless error.” Id. When an error in the admission of evidence
involves a constitutional right, we will conclude it is harmless only if it is
harmless beyond a reasonable doubt. Mack v. State, 23 N.E.3d 742, 756 (Ind.
Ct. App. 2014), trans. denied. “Our analysis for such questions requires this
court to assess ‘whether there is a reasonable possibility that the evidence
complained of might have contributed to the conviction.’” Id. (quoting
Chapman v. California, 87 S. Ct. 824, 827, 386 U.S. 18, 23 (1967)).
[10] Here, we need not determine whether the trial court erred in admitting the
audio recording at issue. Instead, we conclude that, even if the recording
contained impermissible testimonial hearsay, its admission was harmless
beyond a reasonable doubt because the jury would have found Cole guilty even
without the evidence at issue. See Mack, 23 N.E.3d at 756.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 4 of 6 [11] To support Cole’s conviction for operating a vehicle while intoxicated in a
manner that endangers a person, the State was required to prove Cole operated
a vehicle while intoxicated and that he did so in a manner that endangered a
person. See Outlaw v. State, 929 N.E.2d 196 (Ind. 2010) (adopting and
incorporating by reference Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App.
2009)). “Intoxicated” means one is under the influence of alcohol “so that
there is an impaired condition of thought and action and the loss of normal
control of a person’s faculties.” Ind. Code § 9-13-2-86. “Prima facie evidence
of intoxication includes evidence that at the time of an alleged violation the
person had at least a .08 BAC.” Temperly v. State, 933 N.E.2d 558, 566 (Ind. Ct.
App. 2010) (citing I.C. § 9-13-2-131) (quotations omitted), trans. denied, cert
denied.
[12] “The element of endangerment can be established by evidence showing that the
defendant’s condition or operating manner could have endangered any person,
including the public, the police, or the defendant.” Vanderlinden v. State, 918
N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied. “Endangerment does not
require that a person other than the defendant be in the path of the defendant’s
vehicle or in the same area to obtain a conviction.” Id. at 644-45. “By
definition the statute requires more than intoxication to prove endangerment.”
Id. at 645.
[13] Cole does not seem to contend the State presented insufficient evidence to
establish he was intoxicated. He notes the testimony of two police officers and
the results of the breath test established he was impaired. See Appellant’s Br. p.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 5 of 6 11. He does, however, argue that “the State’s main evidence of endangerment
came from the 911 call” and that, absent that evidence, “the jury may have
concluded that driving 10 mph and hitting a pothole in the dark did not
constitute endangerment.” Id. at 12.
[14] We conclude that, even excluding the recording of the 911 call from
consideration, the State’s evidence was sufficient to prove endangerment. Cole
himself testified that Matthews fell off his motorcycle while he was driving it.
The fact that Cole was driving in such a manner that Matthews was unable to
remain on the motorcycle is sufficient evidence from which the jury could
reasonably have inferred Cole operated his motorcycle in a manner that could
have, and did, endanger a person.
Conclusion [15] Any error in the admission of the recording of the 911 call was harmless beyond
a reasonable doubt. The State’s evidence was sufficient to support Cole’s
conviction for operating a vehicle while intoxicated in a manner that endangers
a person. We affirm.
[16] Affirmed.
Riley, J., and Bailey, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017 Page 6 of 6