MEMORANDUM DECISION Jul 29 2015, 8:57 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrensburg, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Connie Kidd, July 29, 2015
Appellant-Defendant, Court of Appeals Cause No. 16A01-1412-CR-522 v. Appeal from the Decatur Superior State of Indiana, Court The Honorable Matthew Bailey, Appellee-Plaintiff, Judge Cause No. 16D01-1307-FD-462
Robb, Judge.
Case Summary and Issues [1] Following a jury trial, Connie Kidd was convicted of operating a vehicle while
intoxicated as a Class D felony. She raises two issues for our review: (1)
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 1 of 7 whether the trial court abused its discretion by admitting Kidd’s blood test
results; and (2) whether the abstract of judgment must be amended to clarify
that Kidd acquired only one conviction in this case. We conclude the trial
court did not abuse its discretion by admitting Kidd’s blood test results.
Therefore, we affirm her conviction for Class D felony operating a vehicle while
intoxicated. However, we remand with instructions that the trial court amend
Kidd’s abstract of judgment to clarify that only one conviction was entered
against her.
Facts and Procedural History [2] On July 6, 2013, Officer David Henderson of the Decatur County Sheriff’s
Department responded to a report of a possibly intoxicated person in a
restaurant parking lot. Officer Henderson arrived at the restaurant and
approached Kidd, who was sitting in the driver’s seat of her vehicle. Officer
Henderson believed that Kidd was intoxicated and asked her to step out of the
vehicle, but she stated that her vehicle was not running and that she did not
wish to get out of the vehicle. The officer advised Kidd to contact a sober
driver. Officer Henderson and two other officers left the parking lot but
remained nearby.
[3] Shortly after the officers left the parking lot, Kidd started her vehicle and
attempted to drive away. The officers initiated a traffic stop. Kidd performed a
field sobriety test—the horizontal gaze nystagmus test—during which she
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 2 of 7 showed signs of intoxication. Kidd was advised of Indiana’s implied consent
law, and she agreed to take a chemical test.
[4] Kidd was transported to the Decatur County EMS building for a blood draw.
After conducting the blood draw, the paramedic handed a vial of Kidd’s blood
to Officer Henderson, who shook the vial for approximately one minute. The
blood later tested positive for marijuana metabolites and a blood alcohol
content of 0.17.
[5] The State charged Kidd as follows: Count 1, operating a vehicle while
intoxicated, a Class C misdemeanor; Count 2, operating a vehicle with an
alcohol concentration of 0.15 or more, a Class A misdemeanor; Count 3,
operating a vehicle with a controlled substance in the body, a Class C
misdemeanor; and Count 4, operating a vehicle while intoxicated, a Class D
felony.1 A jury found Kidd guilty of Counts 1, 2, and 3, and after Kidd
stipulated to the existence of a prior conviction for operating a vehicle while
intoxicated, the trial court found her guilty of Count 4. The trial court ordered
the first three counts to be merged into Count 4, and entered a conviction on
Count 4. Kidd was sentenced to a total of 540 days, which were to be split
between imprisonment, community corrections, and supervised probation.
Kidd now brings this appeal.
1 Count 4 was charged as a Class D felony because Kidd had a prior conviction for operating a vehicle while intoxicated. See Ind. Code § 9-30-5-3(a) (2013).
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 3 of 7 Discussion and Decision I. Admission of BAC Evidence [6] Kidd contends that her blood test results were erroneously admitted at trial
because Officer Henderson’s improper handling of the blood sample rendered
the test results unreliable. A trial court’s decision to admit or exclude evidence
is reviewed for an abuse of discretion. Remy v. State, 17 N.E.3d 396, 399 (Ind.
Ct. App. 2014), trans. denied. The court abuses its discretion when its decision is
clearly against the logic and effect of the facts and circumstances or when the
trial court has misinterpreted the law. Id. The court’s decision concerning the
reliability of scientific evidence is reviewed under an abuse of discretion
standard. Hagerman Construction, Inc. v. Copeland, 697 N.E.2d 948, 957 (Ind. Ct.
App. 1998), trans. denied. Relevant evidence is generally admissible at trial.
Ind. Evidence Rule 402. However, relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Ind. Evidence Rule 403.
[7] Blood test results are generally admissible so long as they comply with the rules
of evidence. State v. Bisard, 973 N.E.2d 1229, 1235 (Ind. Ct. App. 2012) (citing
Ind. Code § 9-30-6-6(c)), trans. denied. Presumably, that is the case because
“[b]lood samples are obtained and analyzed by medical professionals who are
trained to produce reliable results.” Id. However, deviation from proper
procedure concerning the blood draw and testing may warrant exclusion of
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 4 of 7 blood test results in some circumstances. See Hagerman Construction, 697 N.E.2d
at 956-57 (holding trial court did not abuse its discretion by excluding evidence
of blood test results where the failure to freeze the sample and add preservatives
rendered the results unreliable).
[8] Kidd argues that a breach in proper procedure calls into question the reliability
of the test results in this case. After a blood sample is taken, it is ordinarily
mixed with an anticoagulant, which is achieved by gently inverting the sample
several times. Here, rather than a few gentle inversions of the vial, Officer
Henderson shook Kidd’s blood sample for approximately one minute. It is
Kidd’s position that this shaking may have caused hemolysis—the breaking
down of red blood cells—which, in turn, could impact certain blood test results.
Kidd presented evidence of such a possibility through a Mayo Clinic report.
The State countered with testimony from its expert witness, who stated that
improper inversion of the blood sample created only a small chance of
hemolysis.
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MEMORANDUM DECISION Jul 29 2015, 8:57 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Leanna Weissmann Gregory F. Zoeller Lawrensburg, Indiana Attorney General of Indiana Michael Gene Worden Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Connie Kidd, July 29, 2015
Appellant-Defendant, Court of Appeals Cause No. 16A01-1412-CR-522 v. Appeal from the Decatur Superior State of Indiana, Court The Honorable Matthew Bailey, Appellee-Plaintiff, Judge Cause No. 16D01-1307-FD-462
Robb, Judge.
Case Summary and Issues [1] Following a jury trial, Connie Kidd was convicted of operating a vehicle while
intoxicated as a Class D felony. She raises two issues for our review: (1)
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 1 of 7 whether the trial court abused its discretion by admitting Kidd’s blood test
results; and (2) whether the abstract of judgment must be amended to clarify
that Kidd acquired only one conviction in this case. We conclude the trial
court did not abuse its discretion by admitting Kidd’s blood test results.
Therefore, we affirm her conviction for Class D felony operating a vehicle while
intoxicated. However, we remand with instructions that the trial court amend
Kidd’s abstract of judgment to clarify that only one conviction was entered
against her.
Facts and Procedural History [2] On July 6, 2013, Officer David Henderson of the Decatur County Sheriff’s
Department responded to a report of a possibly intoxicated person in a
restaurant parking lot. Officer Henderson arrived at the restaurant and
approached Kidd, who was sitting in the driver’s seat of her vehicle. Officer
Henderson believed that Kidd was intoxicated and asked her to step out of the
vehicle, but she stated that her vehicle was not running and that she did not
wish to get out of the vehicle. The officer advised Kidd to contact a sober
driver. Officer Henderson and two other officers left the parking lot but
remained nearby.
[3] Shortly after the officers left the parking lot, Kidd started her vehicle and
attempted to drive away. The officers initiated a traffic stop. Kidd performed a
field sobriety test—the horizontal gaze nystagmus test—during which she
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 2 of 7 showed signs of intoxication. Kidd was advised of Indiana’s implied consent
law, and she agreed to take a chemical test.
[4] Kidd was transported to the Decatur County EMS building for a blood draw.
After conducting the blood draw, the paramedic handed a vial of Kidd’s blood
to Officer Henderson, who shook the vial for approximately one minute. The
blood later tested positive for marijuana metabolites and a blood alcohol
content of 0.17.
[5] The State charged Kidd as follows: Count 1, operating a vehicle while
intoxicated, a Class C misdemeanor; Count 2, operating a vehicle with an
alcohol concentration of 0.15 or more, a Class A misdemeanor; Count 3,
operating a vehicle with a controlled substance in the body, a Class C
misdemeanor; and Count 4, operating a vehicle while intoxicated, a Class D
felony.1 A jury found Kidd guilty of Counts 1, 2, and 3, and after Kidd
stipulated to the existence of a prior conviction for operating a vehicle while
intoxicated, the trial court found her guilty of Count 4. The trial court ordered
the first three counts to be merged into Count 4, and entered a conviction on
Count 4. Kidd was sentenced to a total of 540 days, which were to be split
between imprisonment, community corrections, and supervised probation.
Kidd now brings this appeal.
1 Count 4 was charged as a Class D felony because Kidd had a prior conviction for operating a vehicle while intoxicated. See Ind. Code § 9-30-5-3(a) (2013).
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 3 of 7 Discussion and Decision I. Admission of BAC Evidence [6] Kidd contends that her blood test results were erroneously admitted at trial
because Officer Henderson’s improper handling of the blood sample rendered
the test results unreliable. A trial court’s decision to admit or exclude evidence
is reviewed for an abuse of discretion. Remy v. State, 17 N.E.3d 396, 399 (Ind.
Ct. App. 2014), trans. denied. The court abuses its discretion when its decision is
clearly against the logic and effect of the facts and circumstances or when the
trial court has misinterpreted the law. Id. The court’s decision concerning the
reliability of scientific evidence is reviewed under an abuse of discretion
standard. Hagerman Construction, Inc. v. Copeland, 697 N.E.2d 948, 957 (Ind. Ct.
App. 1998), trans. denied. Relevant evidence is generally admissible at trial.
Ind. Evidence Rule 402. However, relevant evidence may be excluded “if its
probative value is substantially outweighed by a danger of . . . unfair prejudice,
confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Ind. Evidence Rule 403.
[7] Blood test results are generally admissible so long as they comply with the rules
of evidence. State v. Bisard, 973 N.E.2d 1229, 1235 (Ind. Ct. App. 2012) (citing
Ind. Code § 9-30-6-6(c)), trans. denied. Presumably, that is the case because
“[b]lood samples are obtained and analyzed by medical professionals who are
trained to produce reliable results.” Id. However, deviation from proper
procedure concerning the blood draw and testing may warrant exclusion of
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 4 of 7 blood test results in some circumstances. See Hagerman Construction, 697 N.E.2d
at 956-57 (holding trial court did not abuse its discretion by excluding evidence
of blood test results where the failure to freeze the sample and add preservatives
rendered the results unreliable).
[8] Kidd argues that a breach in proper procedure calls into question the reliability
of the test results in this case. After a blood sample is taken, it is ordinarily
mixed with an anticoagulant, which is achieved by gently inverting the sample
several times. Here, rather than a few gentle inversions of the vial, Officer
Henderson shook Kidd’s blood sample for approximately one minute. It is
Kidd’s position that this shaking may have caused hemolysis—the breaking
down of red blood cells—which, in turn, could impact certain blood test results.
Kidd presented evidence of such a possibility through a Mayo Clinic report.
The State countered with testimony from its expert witness, who stated that
improper inversion of the blood sample created only a small chance of
hemolysis. On appeal, the State also points out that Kidd presented only
evidence that hemolysis was possible and that it could have an effect on a blood
test; Kidd did not present evidence that hemolysis actually occurred in this case
or that hemolysis affected the blood alcohol test.
[9] The trial court was presented with evidence from the State that Officer
Henderson’s handling of Kidd’s blood sample, albeit improper, was not likely
to cause hemolysis or impact the blood test results. It was within the trial
court’s discretion to credit that testimony. Under the circumstances of this case
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 5 of 7 and considering the evidence before the trial court, we cannot say that the trial
court abused its discretion by admitting the blood test results.
II. Abstract of Judgment [10] Next, Kidd complains of what she believes to be an ambiguity in the abstract of
judgment. After Kidd was found guilty of the four counts against her, the trial
court purported to merge the first three counts into Count 4 and enter a
conviction only as to Count 4. Indeed, the trial court’s sentencing order is clear
that only Count 4 was to be entered as a conviction: “for the purposes of
sentencing, Counts One, Two, and Three merge into Count Four. The Court
now enters judgment of conviction only as to Count Four . . . .” Appellant’s
Appendix at 405. However, Kidd notes that the abstract of judgment lists the
disposition of Counts 1, 2, and 3 as “Conviction Merged.” Id. at 414.
Meanwhile, it lists the disposition of Count 4 as “Finding of Guilty.” Id. She
expresses concern that someone reading the abstract of judgment might
interpret it to mean that convictions were entered on all four counts and then
merged.
[11] We agree that it is possible to read the abstract of judgment as stating
convictions were entered on all four of the counts against Kidd. Therefore, we
remand with instructions that Kidd’s abstract of judgment be amended to
clarify that Counts 1, 2, and 3 were not convictions.
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 6 of 7 Conclusion [12] We conclude the trial court did not abuse its discretion by admitting Kidd’s
blood test results and thus affirm her conviction for Class D felony operating a
vehicle while intoxicated. Due to an ambiguity in Kidd’s abstract of judgment,
we remand with instructions that the judgment be amended to clarify that no
judgment of conviction was entered on Counts 1, 2, and 3.
[13] Affirmed and remanded.
May, J., and Mathias, J., concur.
Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015 Page 7 of 7