Jorge Giron v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 22, 2017
• Docket: 49A04-1706-CR-1246
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 22 2017, 6:53 am court except for the purpose of establishing 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 Suzy St. John Curtis T. Hill, Jr. Marion County Public Defender Attorney General of Indiana Indianapolis, Indiana Jesse R. Drum Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jorge Giron, December 22, 2017 Appellant-Defendant, Court of Appeals Case No. 49A04-1706-CR-1246 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Steven Rubick, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G01-1607-F5-26654

Baker, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017 Page 1 of 5 [1] Jorge Giron appeals his convictions for Level 5 Felony Operating a Vehicle

After a Lifetime Suspension1 and Class A Misdemeanor Operating a Vehicle

While Intoxicated.2 He argues that the trial court misapplied the burden of

proof. Finding no error, we affirm.

Facts [2] On the evening of July 10, 2016, Giron, a habitual traffic violator with a

lifetime driver’s license suspension, was driving alone in his truck near an

intersection in Indianapolis. He ran a stop sign and struck a truck driven by

Jonathan Mills. After the collision, Mills called 911 and parked his truck in

front of Giron’s truck to prevent him from driving away. Mills testified that

when Giron exited his vehicle, he was stumbling and slurring his speech.

[3] Indianapolis Metropolitan Police Officer John Dicicco responded to the scene.

After determining that Giron had a lifetime suspension, Officer Dicicco

observed that Giron struggled to keep his balance, had red, watery eyes, slurred

his speech, and smelled like alcohol. Suspecting that Giron was intoxicated,

Officer Dicicco arrested him and obtained a warrant for a blood draw, which

revealed Giron’s blood alcohol concentration was .15.

[4] On July 12, 2016, the State charged Giron with Level 5 felony operating a

vehicle after a lifetime suspension and Class A misdemeanor operating a

1 Ind. Code § 9-30-10-17(a)(1). 2 I.C. § 9-30-5-2.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017 Page 2 of 5 vehicle while intoxicated. Giron waived his right to a jury trial and on April 18,

2017, the trial court conducted a bench trial. At trial, Giron testified that he

had been drinking but that he had not been driving the truck and that the driver

had left the scene. After closing statements, the trial court found Giron guilty

as charged and stated that “[Giron’s] uncorroborated story would have been

helped had this heretofore unidentified driver appeared today, but he didn’t.”

Tr. Vol. II p. 39. Giron did not object to this statement.

[5] At a May 12, 2017, sentencing hearing, the trial court sentenced Giron to

concurrent terms of three years for operating a vehicle after a lifetime

suspension and one year for operating a vehicle while intoxicated. After giving

him credit for time served, the trial court ordered Giron to serve the balance of

his sentence on home detention. He now appeals.

Discussion and Decision [6] Giron’s sole argument on appeal is that the trial court misapplied the burden of

proof. There is “a strong presumption on appeal” that the trial court has

applied the correct burden of proof. Moran v. State, 622 N.E.2d 157, 159 (Ind.

Ct. App. 1993). To rebut this presumption, the record must establish with

“clarity and certainty” that the trial court used an erroneous standard. Id.

Further, a failure to object at trial waives an issue for review unless fundamental

error has occurred. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “In

order to be fundamental, the error must represent a blatant violation of

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017 Page 3 of 5 principles rendering the trial unfair to the defendant and thereby depriving the

defendant of due process.” Id.

[7] Giron argues that the trial court’s statement regarding his failure to call the

alleged driver improperly implied that he bore the burden of proof and that the

trial court drew an adverse inference from his failure to call that witness. We

disagree.

[8] While it would have been better for the trial court to address the State’s

evidence first, the statement was made in the context of weighing conflicting

testimony and is immediately followed by a summary of the evidence presented

by the State. The trial court ended its explanation by stating that the “State has

met its burden as to both counts” and, beyond this lone statement, nothing in the

record suggests that the trial court placed the burden of proof on Giron or that it

drew an adverse inference from his failure to call the alleged driver. Tr. Vol. II

p. 39 (emphasis added). As such, we cannot say with clarity and certainty that

the trial court applied the incorrect standard, let alone that he received an unfair

trial because of the statement.3 Therefore, we find no error, fundamental or

otherwise.

3 Giron devotes a substantial portion of his brief to discussing State v. Brewer, 505 A.2d 774 (Me. 1985), which is not controlling precedent and is factually distinguishable from the case before us.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017 Page 4 of 5 [9] The judgment of the trial court is affirmed.

Riley, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017 Page 5 of 5