MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), May 06 2016, 10:03 am this Memorandum Decision shall not be CLERK regarded as precedent or cited before any Indiana Supreme Court Court of Appeals court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John L. Tompkins Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana
Eric P. Babbs Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Dennis Talboom, May 6, 2016 Appellant-Defendant, Court of Appeals Cause No. 71A03-1510-CR-1544 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Paul E. Singleton, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D01-1211-CM-6212
Barnes, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 1 of 13 Case Summary [1] Dennis Talboom appeals his conviction for Class A misdemeanor operating a
vehicle while intoxicated. We affirm.
Issue [2] The restated issue is whether Talboom’s trial counsel was ineffective for:
I. filing a deficient motion to dismiss; and/or
II. for failing to object to the admissibility of certain evidence.
Facts [3] On November 9, 2012, at approximately 8:00 p.m., Saint Joseph County Police
Officer Jason Koski responded to a report of a pickup truck stuck in a ditch.
Officer Koski observed the truck, whose front end was in a ditch, and
discovered Talboom in the driver’s seat. Talboom was the only person in the
truck. While speaking with Talboom, Officer Koski noticed the odor of alcohol
on his breath and observed that he had bloodshot and glassy eyes. Talboom
testified he had consumed “about three or four” twelve-ounce cans of beer
between approximately 4:30 p.m. and 8:00 or 8:30 p.m. Tr. p. 26.
[4] At Officer Koski’s request, Talboom got out of the truck and performed several
field sobriety tests. Talboom failed those tests. He then consented to a portable
breath test, and Officer Koski transported him to the St. Joseph County Jail so
he could administer a breath test on a DataMaster. Officer Koski is a certified
breath test operator, and the result of that breath test indicated Talboom’s blood
alcohol content was 0.22. Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 2 of 13 [5] On December 4, 2012, the State charged Talboom with (1) operating a motor
vehicle while intoxicated and (2) operating a motor vehicle with a blood alcohol
concentration of .15 or more, both Class A misdemeanors. At some point, it
seems Talboom filed a motion for discovery,1 to which the State responded on
December 6, 2013. The State responded that it had “complie[d] therewith by
providing additional discovery . . . marked as CD-R labeled as 201200031960.”
App. p. 21. More than a year later, on March 18, 2015, the trial court ordered
the State to “to provide MVR tape.” App. p. 3. On July 9, 2015, Talboom filed
a motion to dismiss.2
[6] On July 30, 2015, Talboom was tried in a bench trial. Talboom testified that
Officer Holcomb, who did not testify, and not Officer Koski, administered the
breath test at the St. Joseph County Jail. He further testified that, prior to
administering the test, Officer Holcomb:
[7] disassemble[d] the BAC machine. He took the complete lid and box off the machine. He stuck his fingers underneath the back of this machine and was moving things in the machine, and then he attempted to put the lid back on and had a lot of trouble with that, and the whole process took 15 to 20 minutes.
1 The motion is not included in the Appendix and it was not entered in the Chronological Case Summary. 2 We note that the copy of the motion to dismiss included in the Appendix is not file stamped. It appears that motion also was not entered in the Chronological Case Summary. However, both parties refer to that motion and do not dispute that it was filed. The parties agree it was filed on July 9, 2015. See Appellant’s Br. pp. 2, 3; see also Appellee’s Br. p. 11.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 3 of 13 Tr. pp. 31-32. The trial court found Talboom guilty of both charges. On
September 1, 2015, the trial court vacated Talboom’s conviction for Count II
and sentenced him to seventeen days of incarceration with fifteen days
suspended. It also suspended his driver’s license for ninety days. Talboom now
appeals his conviction.
Analysis3 [8] Talboom contends his trial counsel was ineffective for two reasons: (1) trial
counsel filed a motion to dismiss that was untimely and incomplete, and the
shortcomings of that motion deprived him of exculpatory evidence; and (2) trial
counsel failed to object to the DataMaster evidence regarding his blood alcohol
content on the grounds that the State did not lay the proper foundation for
admitting that evidence.
[9] We first note that Talboom raises his ineffective assistance of trial counsel claim
on direct appeal.4 “Post-conviction proceedings are usually the preferred forum
for adjudicating claims of ineffective assistance because presenting such claims
often requires the development of new facts not present in the trial record.”
Peak v. State, 26 N.E.3d 1010, 1014 (Ind. Ct. App. 2015). “When a defendant
3 We note that Talboom’s Appendix includes the transcript in this matter. See App. pp. 58-112. We remind counsel that, pursuant to Indiana Rule of Appellate Procedure 49(F), “Because the Transcript is transmitted to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in the Appendix.” 4 Talboom did not invoke the Davis/Hatton procedure in this appeal. In that procedure, an appellant terminates or suspends his or her direct appeal in order to pursue a petition for post-conviction relief in the trial court. White v. State, 25 N.E.3d 107, 121 (Ind. Ct. App. 2014), trans. denied, cert. denied.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 4 of 13 presents a claim of ineffective assistance of trial counsel on direct appeal, the
issue is foreclosed from collateral review.” Id.
[10] In order to prevail on an ineffective assistance of counsel claim, one must
satisfy the two-pronged test established in Strickland v. Washington, 466 U.S.
668, 104 S. Ct. 2052 (1984), by establishing: (1) counsel’s performance fell
below an objective standard of reasonableness based on prevailing professional
norms, and (2) there is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. See Jervis v. State, 28 N.E.3d
361, 365 (Ind. Ct. App. 2015), trans. denied. “The two prongs of the Strickland
test are separate and independent inquiries. Thus, “‘[i]f it is easier to dispose of
an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that
course should be followed.’” Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999)
(quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2052) (alterations in original),
cert. denied.
[11] “Most ineffective assistance of counsel claims can be resolved by a prejudice
inquiry alone.” Perryman v. State, 13 N.E.3d 923, 931 (Ind. Ct. App. 2014)
(citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied. A
defendant establishes prejudice if he or she shows there is a reasonable
probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different. Pruitt v. State, 903 N.E.2d 899, 906 (Ind.
2009). “A reasonable probability is one that is sufficient to undermine
confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)
(citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2052). There is a “strong
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 5 of 13 presumption” that counsel’s assistance was adequate and he or she “made all
significant decisions in the exercise of reasonable professional judgment.”
Pruitt, 903 N.E.2d at 922. “‘[I]solated poor strategy, inexperience, or bad
tactics do not necessarily amount to ineffectiveness of counsel.’” Clark v. State,
668 N.E.2d 1206, 1211 (Ind. 1996) (citation omitted), cert. denied.
[12] Talboom contends we should undertake separate analyses of his claims under
the United States and Indiana Constitutions. He argues Article 1, Section 13 of
the Indiana Constitution “has a long history of affording criminal defendants
broader protections [than the United States Constitution]” and urges us to
“return to the broader protections of the right to effective counsel citizens of this
State enjoyed before Strickland, and find that Talboom received ineffective
assistance of counsel under a separate, broader Indiana Art. 1, §13, standard.”
Appellant’s Br. p. 12. Specifically, Talboom asks us to employ a one-part test
for ineffective assistance of counsel and apply only the first prong of the
Strickland test: whether counsel’s performance was deficient. If he is able to
establish that prong, Talboom urges us to “conclude that prejudice resulted
automatically and relief is warranted.” Appellant’s Br. p. 14.
[13] In Strickland, the Supreme Court “first outlined the general guiding premise for
appellate review of effectiveness of counsel.” Elliott v. State, 465 N.E.2d 707,
710 (Ind. 1984). In Elliott v. State, which appears to be our supreme court’s first
application of Strickland, the court discussed our standards of review of
ineffective assistance of counsel claims in light of Strickland. Radford v. State,
468 N.E.2d 219, 224 (Ind. 1984). Elliott “reaffirmed our past decisions under
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 6 of 13 the old standards and adopted the Strickland guidelines for future cases.”
Radford, 468 N.E.2d at 224; see also King v. State, 467 N.E.2d 726, 729 (Ind.
1984). Since Strickland, Indiana courts have required defendants to fulfill both
prongs of the test in order to establish ineffective assistance of counsel. “[W]e
are bound to follow the precedent of our supreme court.” Minor v. State, 36
N.E.3d 1065, 1073 (Ind. Ct. App. 2015) (quotation omitted) (citation omitted),
trans. denied. We, therefore, decline Talboom’s invitation to deviate from the
Strickland analysis.
I. Motion to Dismiss
[14] Talboom first argues his trial counsel was ineffective because the motion to
dismiss he filed on Talboom’s behalf did not comply with Indiana Code Section
35-34-1-45 or Indiana Rule of Criminal Procedure 3, which provides that a
5 (a) The court may, upon motion of the defendant, dismiss the indictment or information upon any of the following grounds: (1) The indictment or information, or any count thereof, is defective under section 6 of this chapter. (2) Misjoinder of offenses or parties defendant, or duplicity of allegation in counts. (3) The grand jury proceeding was defective. (4) The indictment or information does not state the offense with sufficient certainty. (5) The facts stated do not constitute an offense. (6) The defendant has immunity with respect to the offense charged. (7) The prosecution is barred by reason of a previous prosecution. (8) The prosecution is untimely brought. (9) The defendant has been denied the right to a speedy trial. (10) There exists some jurisdictional impediment to conviction of the defendant for the offense charged. (11) Any other ground that is a basis for dismissal as a matter of law. (b) Except as otherwise provided, a motion under this section shall be made no later than:
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 7 of 13 defendant who files a motion to dismiss shall file a memorandum specifying the
grounds for dismissal. The entirety of Talboom’s motion to dismiss “moves
this Honorable Court to dismiss the above cause based on the loss [sic] or
destroyed evidence on the ground that the loss [sic] or destroyed evidence was
exculpatory and deprived the Defendant of due process of law contrary to the
provisions of the Fourteenth Amendment of the United States Constitution.”
App. p. 28. On appeal, Talboom alleges:
Talboom’s trial counsel filed a Motion to Dismiss on July 9, 2015, alleging the loss or destruction of exculpatory evidence. This motion was filed almost two and one-half (2 ½) years after Talboom was charged, after five (5) previous trial settings had come and gone, more than one hundred (100) days after the State had been ordered “to provide MVR tape,” and twenty-one (21) days before Talboom’s trial. The Motion to Dismiss did not specify what evidence had been lost or destroyed, the Motion did not allege who lost or destroyed the evidence, the Motion did not explain how the evidence was exculpatory, or which Count or
(1) twenty (20) days if the defendant is charged with a felony; or (2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors; prior to the omnibus date. A motion made thereafter may be summarily denied if based upon a ground specified in subdivision (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. A motion to dismiss based upon a ground specified in subdivision (a)(6), (a)(7), (a)(8), (a)(9), (a)(10), or (a)(11) of this section may be made or renewed at any time before or during trial. A motion to dismiss based upon lack of jurisdiction over the subject matter may be made at any time. (c) Upon the motion to dismiss, a defendant who is in a position adequately to raise more than one (1) ground in support thereof shall raise every ground upon which he intends to challenge the indictment or information. A subsequent motion based upon a ground not properly raised may be summarily denied. However, the court, in the interest of justice and for good cause shown, may entertain and dispose of such a motion on the merits.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 8 of 13 Counts it exculpated Talboom on. Further, Talboom’s Motion was unsupported by the mandatory memorandum.
Appellant’s Br. p. 8 (citations omitted). In addition, Talboom argues that his
trial counsel’s faulty motion to dismiss “deprived him of video evidence that
would have corroborated his exculpatory testimony about the facts of what
happened at the St. Joseph County Jail on the night of his BAC DataMaster test
and arrest. In addition, the video would have been an effective means of
impeaching Koski’s credibility.” Id. at 4.
[15] We again note that Talboom raises his claims of ineffective assistance of
counsel on direct appeal and did not pursue either a petition for post-conviction
relief or a Davis/Hatton petition prior to raising these issues. As such, our
review is limited to the trial record. The record is murky, at best, with regard to
the evidence Talboom contends is exculpatory, missing, and the subject of the
motion to dismiss. Talboom seems to acknowledge the record’s deficiencies, as
quoted above. He further states it is unclear whether the “MVR tape” the trial
court ordered the State to produce on March 18, 2015 is the same as “CD-R
labeled as 201200031960” the State confirmed on December 6, 2013 that it had
previously provided to Talboom. App. pp. 3, 21; see Appellant’s Br. p. 8.
[16] Nonetheless, Talboom argues on appeal that he was prejudiced by his trial
counsel’s “non-specific Motion to Dismiss” in two ways:
[17] First, Talboom never had the opportunity to establish a record in the Trial Court, this right is guaranteed by IC 35-34-1-4(d)’s mandate for a ruling upon the filing of any motion to dismiss.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 9 of 13 Second, the absence of a Trial Court record on his Motion to Dismiss deprives Talboom of the ability to present specific issues for this Court to review, a clear infringement of his right to a direct appeal as opposed to some other post-conviction proceeding.
Appellant’s Br. p. 9.
[18] Our review of the record reveals the same deficiencies in the trial record as
those to which Talboom points in the motion to dismiss. Nothing in the record
affirmatively identifies the evidence Talboom’s motion to dismiss claimed was
lost or destroyed. The evidence to which the motion to dismiss refers might
have been the MVR tape the trial court referenced in its March 18, 2015 order;
but it might not. As Talboom notes in his Appellant’s Brief, the missing
evidence might or might not have been the “CD-R labeled as 201200031960” to
which the State referred in its December 6, 2013 response to Talboom’s request
for discovery. See Appellant’s Br. p. 8. Assuming, arguendo, evidence was lost
or destroyed, the record does not substantiate Talboom’s assertion that it would
have corroborated Talbooms’s testimony that Officer Holcomb, not Officer
Koski, administered the breath test and that he did so only after disassembling
and reassembling the DataMaster. Without more, we must conclude Talboom
has not shown there is a reasonable probability that, but for counsel’s alleged
unprofessional errors, the result of the proceeding would have been different.
See Pruitt, 903 N.E.2d at 906. Thus, Talboom has not established he suffered
prejudice as a result of trial counsel’s alleged errors.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 10 of 13 II. Failure to Object to Evidence
[19] Talboom next contends his trial counsel was ineffective because he did not
object to what Talboom argues was the State’s failure to lay a foundation for
the results of the DataMaster breath test and because he did not move to strike
that evidence or request a judgment on the evidence. Specifically, he contends
the State did not establish that the DataMaster test was administered within
three hours of when Talboom last operated his vehicle. He further contends
trial counsel “compounded his errors on this issue by calling Talboom as the
only Defense witness and during the direct examination of his client
establishing the first prong of the foundation required to admit Talboom’s BAC
result.” Appellant’s Br. p. 11. The resulting prejudice, he argues, “is that first
Talboom was convicted on the per se count based entirely on inadmissible
evidence. Second, since the State relied in part on the BAC result as proof of
the intoxication count, Talboom also suffered prejudice on both convictions.”
Id.
[20] We first note that, contrary to Talboom’s assertion he was convicted for a “per
se count,” (operating a motor vehicle with a blood alcohol concentration of .15
or more), the trial court did not enter a judgment of conviction on Count II. See
App. p. 4. Thus, we do not address Talboom’s argument related to that charge
and limit our discussion to his assertion that he was prejudiced because his
conviction for operating a motor vehicle while intoxicated was based, in part,
on what he contends was inadmissible evidence.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 11 of 13 [21] Indiana Code Section 9-30-5-2 provides that a person commits Class A
misdemeanor operating a vehicle while intoxicated if he or she does so in a
manner that endangers a person. Intoxication is defined as being under the
influence of, among other substances, 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 Sec. 9-13-2-86. The State may prove impairment by
evidence of “(1) the consumption of significant amounts of alcohol; (2)
impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of
alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; (7)
slurred speech.” Staley v. State, 895 N.E.2d 1245, 1251 (Ind. Ct. App. 2008),
trans. denied. Finally, “the endangerment clause does not require that the State
prove a person other than the defendant was actually in the path of the
defendant’s vehicle . . . in order to obtain a conviction.” Id.
[22] Here, Talboom himself admitted he consumed alcohol. Officer Koski testified
Talboom exhibited glassy, bloodshot eyes and smelled of alcohol. Talboom
also failed three field sobriety tests. Finally, it is undisputed that Talboom was
involved in a traffic accident shortly after he consumed the alcohol. We
conclude that this evidence was overwhelmingly sufficient to support
Talboom’s conviction for Class A misdemeanor operating a vehicle while
intoxicated. Even if the DataMaster evidence should not have been admitted,
we conclude Talboom has not undermined our confidence in the outcome of
his trial. He has, therefore, not established he suffered prejudice as a result of
counsel’s alleged unprofessional errors. See Pruitt, 903 N.E.2d at 906.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 12 of 13 Conclusion [23] Talboom has not demonstrated his trial counsel’s alleged errors resulted in
prejudice. He has, therefore, failed to establish that he received ineffective
assistance of trial counsel. We affirm.
[24] Affirmed.
Robb, J., and Altice, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016 Page 13 of 13