Kristi J. Line v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 16, 2018
• Docket: 32A01-1709-CR-2234
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Mar 16 2018, 10:23 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Zachary J. Stock Curtis T. Hill, Jr. Zachary J. Stock, Attorney at Law, P.C. Attorney General of Indiana Indianapolis, Indiana Lee M. Stoy, Jr. Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kristi J. Line, March 16, 2018 Appellant-Defendant, Court of Appeals Case No. 32A01-1709-CR-2234 v. Appeal from the Hendricks Superior Court State of Indiana, The Honorable Stephenie LeMay- Appellee-Plaintiff. Luken, Judge Trial Court Cause No. 32D05-1702-CM-269

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 1 of 12 [1] Kristi J. Line appeals her conviction for operating a vehicle while intoxicated as

a class A misdemeanor. She raises one issue which we revise and restate as

whether the evidence is sufficient to sustain her conviction. We affirm.

Facts and Procedural History

[2] On February 19, 2017, Danville Police Sergeant Chase Wilson was training

Officer Anthony Southern and they observed a vehicle go over “to the fog line

and then went back into the lane” and turn south on County Road 300 East.

Transcript Volume II at 7. After noticing the vehicle accelerate, Sergeant

Wilson turned on his radar, which indicated that the vehicle was traveling at

seventy miles per hour, and he confirmed that reading by pacing the vehicle.

Sergeant Wilson activated the red and blue lights of his fully-marked police

vehicle, and the vehicle driven by Line “started to go off to the side of the road

she drove down into the ditch and then back up out of the ditch . . . and parked

on the side of the road.” Id. at 8.

[3] Sergeant Wilson approached Line’s vehicle and observed that she had her

window down two inches. Sergeant Wilson asked Line to lower her window,

and Line was very argumentative and stated that she was afraid because she did

not know that he was a police officer. Sergeant Wilson stepped out from

behind the window to show her that he was in full uniform. At some point,

Hendricks County Sheriff’s Deputy Robert Lenover arrived at the scene. Line

rolled the window down, and Sergeant Wilson asked her for her driver’s license

and registration. Line took more time to retrieve her driver’s license and

registration than one “normally would.” Id. at 9. Sergeant Wilson could smell Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 2 of 12 an odor of alcohol emanating from the vehicle and asked Line to step out of the

vehicle. Line was argumentative and said she did not want to step out of the

car, but eventually agreed and stepped out of the vehicle.

[4] Sergeant Wilson asked standard questions before conducting field sobriety tests,

and Line advised him that she had a back and neck injury and fibromyalgia

which would prevent her from participating in some of the testing. Sergeant

Wilson conducted a horizontal gaze nystagmus test, and Line “had six (6) out

of six (6) possible indicators” on the test. Id. at 11. Sergeant Wilson advised

her of Indiana complied consent, and Line stated she wanted to go back to her

vehicle and sit until she was “ok to go.” Id. Sergeant Wilson told her that she

had to give him a yes or no answer, and Line was argumentative. Sergeant

Wilson eventually placed Line in handcuffs with Deputy Lenover’s assistance.

Sergeant Wilson obtained a warrant for a blood draw, which was later

performed at a hospital.1

[5] The State charged Line with operating a vehicle while intoxicated and resisting

law enforcement as class A misdemeanors. On August 30, 2017, the court held

a bench trial. When asked for the speed limit in the area where he stopped

Line, Sergeant Wilson answered: “Either forty-five (45) or fifty (50), I can’t

remember exactly what it is on that portion of the county road. It’s not seventy

(70) miles an hour.” Id. at 8. When asked on cross-examination about Line’s

1 The court admitted a toxicology report which indicated an analyte of ethanol and a result of “0.080 + 0.004 g/100mL,” State’s Exhibit 1, as well as a toxicology report indicating a positive finding of “Dextro / Levo Methorphan,” with a result of “18 +4 ng/mL.” State’s Exhibit 2.

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 3 of 12 vehicle leaving the lane of travel, Sergeant Wilson testified that the tires on

Line’s vehicle were on the fog line, but did not cross the fog line. Defense

counsel asked Sergeant Wilson to tell her at what time Line “went left of

center,” and Sergeant Wilson answered: “As she traveled south on county road

three hundred (300) east south of the airport. I can’t give you a specific time as

in hours and minutes.” Id. at 15.

[6] After the State rested, the defense presented the testimony of Penny Horvath

who testified that she was out with Line that day, that an officer followed her

vehicle for awhile before moving behind Line’s vehicle, and that she could not

observe the officer’s behavior with regard to Line’s vehicle. On cross-

examination, Horvath testified that she and Line were at the Alibi, a bar.

When asked if she knew if Line was drinking, Horvath stated: “She had one (1)

that I know of,” and clarified that she was referring to beer. Id. at 26. On

redirect examination, Horvath testified that she was with Line about three

hours that evening and that Line had one beer and water.

[7] Line testified that she had one beer at the Alibi and that an officer followed her

for five minutes, ran up to her bumper, and then backed off at least four or five

times. She stated that she was very scared and sped up because she thought

that someone was trying to run her off the road. She testified that she did not

realize it was an officer “until the lights came on.” Id. at 30. She testified that

they “did a breathalyzer” and that Officer Wilson “had his breathalyzer,

dropped it on the ground and it broke into three (3) or four (4) pieces.” Id. at

33. She testified that she did not submit to a blood draw at first because she had

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 4 of 12 no idea what was going on. On cross-examination, Line testified that, prior to

her beer at the Alibi bar, she had a couple of sips of beer at Dare Devils in

Speedway at 6:00 and “another half beer” around 8:00 or 8:30 at her nephew’s

house. She also testified that she pulled her vehicle over without incident.

[8] The court found Line not guilty of resisting law enforcement and guilty of

operating a vehicle while intoxicated while endangering a person as a class A

misdemeanor. Specifically, the court held:

[A]s to count one (1) I am going to find that the speed of the defendant was seventy (70) um we haven’t had a firm testimony as to the speed limit, so even if you believe the speed limit was the top speed limit on that particular type of road which was potentially fifty (50) to fifty-five (55) she was still going over the speed limit with alcohol in her system. Based on count one (1) so I find that is endangerment also her vehicle, officer, officer testified t[h]rough the Danville Police Department testified that she drove her vehicle kind of into the ditch and to back out and that is endangerment. So, I’m going to find guilty to count one (1) as an a misdemeanor operating while intoxicated.

Id. at 42. The court sentenced Line to 180 days at the Hendricks County Jail

with 178 days suspended to probation.

Discussion

[9] The issue is whether the evidence is sufficient to sustain Line’s conviction for

operating a vehicle while intoxicated as a class A misdemeanor. When

reviewing the sufficiency of the evidence to support a conviction, we must

consider only the probative evidence and reasonable inferences supporting the

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 5 of 12 verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

witness credibility or reweigh the evidence. Id. We consider conflicting

evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

unless “no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

(Ind. 2000)). It is not necessary that the evidence overcome every reasonable

hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

may reasonably be drawn from it to support the verdict. Id.

[10] The offense of operating a vehicle while intoxicated is governed by Ind. Code §

9-30-5-2, which provides that “a person who operates a vehicle while

intoxicated commits a Class C misdemeanor,” but “[a]n offense . . . is a Class A

misdemeanor if the person operates a vehicle in a manner that endangers a

person.”

[11] Line challenges only the element that she endangered a person. She argues that

there is little more than proof of alcohol consumption being used to prove

endangerment and this evidence is not sufficient. She asserts that an

intoxicated driver does not endanger a person simply by violating any portion

of the traffic code and that intoxication plus imperfect driving does not equal

endangerment. The State argues that it presented sufficient evidence to show

that Line endangered a person.

[12] Mere intoxication is not sufficient to support a conviction of operating a vehicle

while intoxicated as a class A misdemeanor. Outlaw v. State, 918 N.E.2d 379,

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 6 of 12 382 (Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind. 2010). “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.” Id. at 381. “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.

[13] The record reveals that Line drove her vehicle over “to the fog line and then

went back into the lane.” Transcript Volume II at 7. Sergeant Wilson

determined that Line was traveling seventy miles per hour in an area where the

speed limit was either forty-five or fifty miles per hour. Defense counsel asked

Sergeant Wilson to tell her at what time Line “went left of center,” and

Sergeant Wilson answered: “As she traveled south on county road three

hundred (300) east south of the airport.” Id. at 15. After activating his red and

blue lights, Sergeant Wilson observed Line’s vehicle start to go off to the side of

the road and then “she drove down into the ditch and then back up out of the

ditch . . . and parked on the side of the road.” Id. at 8.

[14] Based upon the record, we cannot say that the inferences made by the fact

finder were unreasonable. We conclude that evidence of probative value exists

from which the trial court could have found Line guilty beyond a reasonable

doubt of operating a vehicle while intoxicated as a class A misdemeanor. See

Staley v. State, 895 N.E.2d 1245, 1251 (Ind. Ct. App. 2008) (observing that the

defendant’s intoxication resulted in unsafe driving practices and that the

defendant was observed driving fifty-five miles per hour in a forty-mile-per-hour

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 7 of 12 zone and driving at night without his lights on, and concluding that the jury

was presented with sufficient evidence of probative value that the defendant

was endangering the public, the police, or himself), trans. denied; Boyd v. State,

519 N.E.2d 182, 184 (Ind. Ct. App. 1988) (observing that the defendant was

driving fifty-four miles per hour at night in a thirty-mile-per-hour zone and that

the defendant’s speeding demonstrated impaired judgment and ability of such a

nature as to endanger others).

Conclusion

[15] For the foregoing reasons, we affirm Line’s conviction.

[16] Affirmed.

Baker, J., concurs.

Riley, J., concurs in result with separate opinion.

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 8 of 12 IN THE COURT OF APPEALS OF INDIANA

Kristi J. Line, Court of Appeals Case No. 32A01-1709-CR-2234 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Riley, Judge, concurring in result.

[17] While I ultimately concur in result, I write separately to address my concerns

with the police officer’s conduct. There is no dispute that Line, whose blood

alcohol level registered 0.08, was traveling in excess of the speed limit, and this

court has previously established that excessive speed is sufficient to establish the

endangerment element of operating while intoxicated in a manner that

endangers a person. See Vanderlinden v. State, 918 N.E.2d 642, 646 (Ind. Ct.

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 9 of 12 App. 2009), trans. denied. That said, I firmly believe that the actions of Sergeant

Chase Wilson (Sergeant Wilson) directly contributed to the endangerment.

[18] Sergeant Wilson, who was training a new police officer, set his sights on

patrons leaving the Alibi Bar. Line’s friend, Penny Horvath (Horvath), left the

bar at the same time as Line. As Horvath drove, she noticed that she was being

followed by a Danville police car. The police officer “kept getting on [her]

bumper and backing off,” making Horvath “nervous.” (Tr. Vol. II, pp. 24-25).

After several minutes, the police officer “sped up and got in front of [Horvath],”

to follow Line’s vehicle as Line turned onto County Road 300 East. (Tr. Vol.

II, p. 24).

[19] Sergeant Wilson testified that he began following Line after observing her

vehicle “leave its lane of travel,” but he subsequently clarified that Line’s tires

touched the fog line but did not cross it. (Tr. Vol. II, p. 6). As Line drove down

the dark road, Sergeant Wilson, by his own testimony, “pac[ed]” her vehicle.

(Tr. Vol. II, p. 7). Although Sergeant Wilson claimed he only began pacing to

confirm the speed indicated by his radar, an inference can be made that he had

been tailing Line’s vehicle in the same way that he had paced Horvath’s vehicle

minutes earlier. In fact, Line similarly testified that the vehicle behind her

repeatedly “was running up on [her] bumper and backing off” for several

minutes. (Tr. Vol. II, p. 30). Unaware that she was being followed by a police

vehicle, Line “thought that someone was trying to run [her] off the road and so

[she] sped up to get away from them. And [she] really thought [she] was either

going to die or be hurt or maybe even raped by this person that was running up

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 10 of 12 on [her] bumper.” (Tr. Vol. II, p. 30). Sergeant Wilson engaged in this driving

technique for “a good five (5) minutes” before he activated the lights on his

vehicle and initiated the traffic stop. (Tr. Vol. II, p. 30).

[20] At that point, Sergeant Wilson stated that Line “drove down into the ditch and

then back up out of the ditch um and parked on the side of the road.” (Tr. Vol.

II, p. 8). Mindful of the trial court’s discretion as to finding credibility in

Sergeant Wilson’s claim that Line somehow drove into a ditch and immediately

drove back out with ease, I nevertheless point out that Sergeant Wilson also

testified that “[t]he county road right there is pretty narrow. There’s no

shoulder.” (Tr. Vol. II, p. 10). Thus, to pull over for a police vehicle would

necessarily require leaving the roadway to some extent. When Sergeant Wilson

approached Line’s window, she rolled it down a few inches and informed him

that “she was afraid” and “didn’t know that [he] was a police officer.” (Tr. Vol.

II, p. 9).

[21] When all of the evidence is considered together, including the fact that Sergeant

Wilson’s body camera stopped working just prior to the incident with Line, it

appears that Sergeant Wilson created a situation that placed Line in substantial

fear for her safety. If Sergeant Wilson’s radar had already confirmed Line’s

excessive speed, and if Line was really weaving across her lane of travel as

Sergeant Wilson purportedly observed, he could have activated his lights at that

point and initiated the stop. Instead, with his status as a police officer obscured

by the darkness, he followed her in a manner that, reasonably, caused her to

believe that she was about to be victimized. Although the State technically

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 11 of 12 established the necessary elements to support Line’s conviction for a Class A

misdemeanor, I am truly troubled by the police officer’s actions in this case.

Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018 Page 12 of 12