Noe Joaquin v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 31, 2017
• Docket: 49A02-1701-CR-190
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Jul 31 2017, 7:00 am

the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Megan Shipley Curtis T. Hill, Jr. Marion County Public Defender Agency Attorney General Indianapolis, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Noe Joaquin, July 31, 2017 Appellant-Defendant, Court of Appeals Case No. 49A02-1701-CR-190 v. Appeal from the Marion Superior Court State of Indiana, The Honorable David Hooper, Appellee-Plaintiff Magistrate Trial Court Cause No. 49G08-1604-CM-14854

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 1 of 12 Case Summary [1] Following a jury trial, Noe Joaquin appeals his conviction for class A

misdemeanor operating a vehicle while intoxicated in a manner that

endangered a person. He argues that the trial court erred in instructing the jury

on endangerment. We hold that Joaquin waived any claim of error and that

any error was not fundamental. Consequently, we affirm.

Facts and Procedural History [2] Around 9:30 p.m. on April 18, 2016, David Nugent walked across Michigan

Street in Indianapolis. The speed limit in that area was thirty-five miles per

hour. A van passed by Nugent “fast enough that [he could] feel the breeze

coming off and it [blew his] shirt up[.]” Tr. at 31. Nugent “looked down to

light a cigarette,” and “as soon as [he] lit it [he] heard boom.” Id. at 26. He

turned to see the van hit a parked car so hard that the car “went up, came

down[,]” and spun 180 degrees. Id. The van flipped onto its side. Nugent ran

over and pulled the driver, Joaquin, out of the van. Joaquin “was bleeding

around his neck or the back of his head.” Id. at 28. Nugent used his shirt to try

to slow the bleeding. He talked to Joaquin, “trying to keep him responsive.”

Id. A passing police car did “a u-turn[,]” and the officer told Nugent, “[W]e’ll

take care of it from here.” Id. An ambulance took Joaquin to the hospital.

[3] Nugent saw that Joaquin’s van had struck four parked vehicles, and he

observed skid marks that traveled “straight and then went to the right” toward

the vehicles. Id. at 38. A responding officer noticed that Joaquin’s eyes were

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 2 of 12 “red and glassy[,]” and he “could smell the odor of an alcoholic beverage on

[Joaquin’s] breath.” Id. at 90, 66. The officer obtained a warrant for a blood

draw, which occurred at 10:42 p.m. Joaquin’s alcohol concentration was .189

grams per 100 milliliters of blood, or nearly two and a half times the legal limit.

[4] The State charged Joaquin with class A misdemeanor operating a vehicle while

intoxicated in a manner that endangered a person, class A misdemeanor

operating a vehicle with an alcohol concentration of .15 or more, and class C

misdemeanor operating a vehicle without ever receiving a license. Joaquin pled

guilty to the third count before his jury trial. The jury found him guilty on the

first count and deadlocked on the second count. The trial court declared a

mistrial on the second count, and the State dismissed it. The court sentenced

Joaquin to 365 days on the first count, with 363 days suspended to probation,

and to a concurrent two-day term on the third count. Joaquin now appeals.

Discussion and Decision [5] Joaquin was convicted of operating while intoxicated pursuant to Indiana Code

Section 9-30-5-2, which reads, “(a) Except as provided in subsection (b), a

person who operates a vehicle while intoxicated commits a Class C

misdemeanor. (b) An offense described in subsection (a) is a Class A

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

person.” Indiana Code Section 9-13-2-86 defines intoxicated as being under the

influence of alcohol or another substance “so that there is an impaired

condition of thought and action and the loss of normal control of a person’s

faculties.” Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 3 of 12 [6] At the close of evidence, the State tendered the following final jury instruction

on endangerment:

The ”endangerment" portion of the definition of intoxication does not require that the State prove that a person other than the defendant was actually in the same area as the automobile to support a conviction. State v. Krohn (1988), Ind. App., 521 N.E.2d 374, 377. Rather, it can be established by showing that defendant’s condition or driving manner could have endangered any person, including the public, the police, or the driver. Id. Therefore, proof that the defendant’s condition renders driving unsafe is sufficient to establish endangerment. Id. State v. Shaw, 595 N.E[.]2d 743, 746 (Ind. Ct. App. 1992), reh’g denied

Appellant’s App. at 74. Joaquin objected to the instruction because “it’s based

on facts from a different case.” Tr. at 201-02. The trial court stated that it

would revise the instruction to read as follows: “[E]ndangerment can be

established by showing that the defendant’s condition or driving manner could

have endangered any person, including the public, the police, or the driver.” Id.

at 202; see also Appellant’s App. at 62 (court’s final instruction number 4).

Joaquin did not object to the revision. The court then gave the parties an

opportunity to review all of its proposed final instructions and asked if they had

any objections. Joaquin responded, “No.” Tr. at 204.

[7] On appeal, Joaquin contends that the trial court’s instruction “is an incorrect

statement of the law” because “it is from a case that has been abrogated by

statute.” Appellant’s Br. at 11. In response, the State argues that Joaquin has

waived any claim of error because he failed to object to the trial court’s revision

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 4 of 12 of the State’s instruction. We agree. “It is well settled that the failure to object

to a jury instruction given by the trial court waives the issue for review.” Quiroz

v. State, 963 N.E.2d 37, 42 (Ind. Ct. App. 2012), trans. denied.1 The State also

argues waiver based on Joaquin’s new claim of instructional error on appeal.

“It is well-settled law in Indiana that a defendant may not argue one ground for

objection at trial and then raise new grounds on appeal.” Gill v. State, 730

N.E.2d 709, 711 (Ind. 2000). Consequently, Joaquin “has waived this claim of

error for appellate review” on this ground as well. Id.

[8] Joaquin argues that even if we find waiver, we should reverse his conviction

because the trial court committed fundamental error in giving the instruction.

Fundamental error is an extremely narrow exception to the waiver rule where

the defendant faces the heavy burden of showing that the alleged error is so

prejudicial to his rights as to make a fair trial impossible. Carter v. State, 31

N.E.3d 17, 27 (Ind. Ct. App. 2015), trans. denied. “In considering whether a

claimed error denied the defendant a fair trial, we determine whether the

resulting harm or potential for harm is substantial.” Baker v. State, 948 N.E.2d

1169, 1178-79 (Ind. 2011). Harm is not shown by the fact that the defendant

was ultimately convicted, but by whether his right to a fair trial was

detrimentally affected by the denial of procedural opportunities for the

ascertainment of truth to which he would have been entitled. Id. at 1179. We

1 Joaquin did not indicate whether he objected to the State’s instruction in whole or in part, nor did he indicate that the trial court’s revision failed to alleviate his concerns. One could reasonably infer that Joaquin was satisfied with the revision because he stated that he had no objection to the court’s proposed instructions.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 5 of 12 will not reverse for an instructional error where the conviction is clearly

sustained by the evidence and the jury could not properly have found otherwise.

Hayden v. State, 19 N.E.3d 831, 838 (Ind. Ct. App. 2014), trans. denied (2015).

[9] To the extent the instruction suggests that endangerment could be established

by evidence of Joaquin’s intoxicated condition alone, we agree with Joaquin

that it is problematic. See Outlaw v. State, 929 N.E.2d 196, 191 (Ind. 2010)

(affirming this Court’s rejection of State’s argument that “evidence of

‘intoxication’ should be sufficient to prove ‘endangerment’” under current

version of Ind. Code § 9-30-5-2). But the State presented overwhelming

evidence that Joaquin’s driving manner could have endangered—and did in fact

endanger—any person, including himself. On a stretch of Michigan Street with

a speed limit of thirty-five miles per hour, Joaquin drove his van past Nugent

fast enough to generate a breeze and blow Nugent’s shirt up. Joaquin then

plowed his van into a parked car with enough force to lift the car in the air and

spin it 180 degrees. The van flipped onto its side, and Nugent had to pull the

bleeding Joaquin from the vehicle. Based on this evidence, the jury could not

properly have found anything other than that Joaquin’s driving manner

endangered himself. Therefore, we affirm his conviction.

[10] Affirmed.

Barnes, J., concurs.

Baker, J., dissents with opinion.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 6 of 12 IN THE COURT OF APPEALS OF INDIANA

Noe Joaquin, Court of Appeals Case No. 49A02-1701-CR-190 Appellant-Defendant,

v.

State of Indiana, Appellee-Plaintiff.

Baker, Judge, dissenting.

[11] I respectfully dissent. First, with respect to waiver, a party seeking to preserve

an alleged instructional error for appeal must identify the specific grounds for

objection at trial. Kane, 976 N.E.2d at 1231. The purpose of this requirement is

to alert the trial court and avoid potential error. Id. In Kane, the defendant

argued on appeal that a jury instruction was an incorrect statement of law. At

trial, however, the defendant’s attorney had made only a “general objection” to

the instruction. Id. The trial court then discussed the instruction with the

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 7 of 12 parties and ultimately rewrote it. In finding that the defendant’s general

objection preserved the issue for appeal, our Supreme Court emphasized that

“the trial judge did not simply adopt the State’s proposed instruction; rather, he

changed it to mirror language that, in his estimation, had received judicial

approval . . . .” Id. at 1231-32. In other words, where a general objection

results in the trial court giving “‘specific consideration to whether the proposed

instruction was a correct statement of law,’” the error is preserved. Id. at 1231

(quoting McDowell v. State, 885 N.E.2d 1260, 1262 (Ind. 2008)).

[12] In this case, Joaquin’s attorney did not object with specificity, indicating an

argument that the instruction was an incorrect statement of the law.

Notwithstanding the lack of an objection to that specific effect, however, the

trial court clearly considered the issue, even rewriting the State’s proffered

instruction in an attempt to ensure that the instruction was a correct statement

of law. Under these circumstances, I would find that the issue was preserved

for appellate review.

[13] Even if the objection was insufficient to preserve the issue, however, I would

find that the erroneous jury instruction constituted fundamental error because it

was “so prejudicial to the rights of a defendant as to make a fair trial

impossible.” Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015). The State’s proposed

jury instruction was taken from State v. Shaw, which applied and interpreted an

old and substantively different version of the relevant statute. 595 N.E.2d 743

(Ind. Ct. App. 1992), superseded by statute). Before 2001, the offense of operating

a vehicle while intoxicated was defined as follows: “A person who operates a

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 8 of 12 vehicle while intoxicated commits a Class A misdemeanor.” I.C. § 9-30-5-2

(2000). “Intoxicated,” in turn, was defined as being under the influence of

alcohol or another substance “such that there is an impaired condition of

thought and action and the loss of normal control of a person’s faculties to such

an extent as to endanger any person.” I.C. § 9-13-2-86 (2000) (emphasis added).

Before 2001, therefore, endangerment was part of the intoxication element

rather than a separate element, and the State could prove endangerment merely

by proving that the defendant was intoxicated. E.g., Fletcher v. State, 649 N.E.2d

1022, 1024 (Ind. 1995) (holding that the defendant’s admission of operating

while intoxicated “amounts to an admission that his condition was such as to

endanger others on the road”).

[14] In 2001, the General Assembly “substantially altered the OVWI statutes by

redefining intoxication and establishing two separate misdemeanor classes for

operating a vehicle while intoxicated.” Outlaw v. State, 918 N.E.2d 379, 381

(Ind. Ct. App. 2009), expressly adopted by Outlaw v. State, 929 N.E.2d 196, 196

(Ind. 2010). The 2001 amendments made “endangerment” a separate element

that is necessary to elevate the offense from a Class C to a Class A

misdemeanor and removed the requirement of endangerment from the

definition of intoxication. Id. at 381. The current version of the statute, which

was in effect at the time Joaquin committed the alleged offense, provides that

operating a vehicle while intoxicated is a Class A misdemeanor “if the person

operates a vehicle in a manner that endangers a person.” I.C. § 9-30-5-2(b).

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 9 of 12 [15] It is well established that, “[b]y definition, the current statute requires more

than intoxication to prove endangerment.” Outlaw, 918 N.E.2d at 382.

Instead, the State is required to present evidence that the defendant operated the

vehicle in a way that endangered a person—the mere condition of being

intoxicated is insufficient. Id.

[16] Here, the jury was instructed that endangerment can be established “by

showing that the defendant’s condition or driving manner could have endangered

any person, including the public, the police, or the driver.” Appellant’s App. p.

62 (emphasis added). This instruction is an incorrect statement of the law, as it

instructs the jury that it could find that Joaquin endangered a person merely

based upon his condition of intoxication.

[17] The State directs our attention to Staley v. State, 895 N.E.2d 1245, 1250 (Ind. Ct.

App. 2008), which found no error with respect to a jury instruction almost

identical to the instruction in the present case. The Staley Court relied on the

2003 decision of Slate v. State, 798 N.E.2d 510, 515 (Ind. Ct. App. 2003),

superseded by statute, noting that “[a]s Staley does not present us with any new

arguments that persuade us to revisit our opinion in Slate, we conclude, in light

of Slate, that the trial court tendered a proper instruction to the jury.” Id. at

1250. The Outlaw Court, however, expressly disapproved of and declined to

follow Slate and other cases with similar holdings:

We acknowledge that prior decisions of this court have suggested that a showing of intoxication, without more, is adequate to prove endangerment. See, e.g., Slate v. State, 798 N.E.2d 510, 515

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 10 of 12 (Ind. Ct. App. 2003) (stating that “the endangerment element . . . indicates the level of impairment and the extent of lost faculties that must be shown to establish intoxication and to obtain a conviction”); Dunkley v. State, 787 N.E.2d 962, 965 (Ind. Ct. App. 2003) (“The endangerment element was further established by [the defendant’s impaired] condition”). Insofar as those cases conflate the definition of endangerment with that of intoxication, the amended statutes supplant them and, as such, we do not follow them.

(Emphasis added). As noted above, our Supreme Court expressly adopted the

opinion of this Court in Outlaw. 929 N.E.2d at 196. Consequently, Outlaw

overruled Slate and Staley, and I would decline to follow that line of cases.

[18] When an instruction misstates the law, we must “presume the error affected the

verdict” and reverse “unless the verdict would have been the same under a

proper instruction.” Kane, 976 N.E.2d at 1228. Put simply, “reversal is

required if the jury’s decision may have been based upon an erroneous

instruction.” Hernandez v. State, 45 N.E.3d 373, 378 (Ind. 2015).

[19] At trial, Joaquin’s attorney argued that the State had not proved beyond a

reasonable doubt that Joaquin had operated the vehicle in a manner that

endangered a person. Nugent was not looking at the crash when it happened,

and he testified that Joaquin’s driving was “normal” and “every day” for that

street. Tr. p. 31. There was no expert investigation of the crash or skid marks,

nor were there photographs of the crash site.2 Consequently, I take issue with

2 The State argues that “[i]f Defendant had a rational explanation for driving in this manner, then he was free to present it to the jury to defend against what was presumptively unsafe driving . . . .” Appellee’s Br. p. 16.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 11 of 12 the majority’s characterization of the evidence on this issue as

“overwhelming[.]” Slip op. p. 6. Because the jury’s decision may have been

based on the erroneous instruction, I believe we are compelled to reverse.

[20] The crux of Joaquin’s defense was that the State did not prove that the accident

was caused by Joaquin’s driving manner; in other words, the State did not

prove that Joaquin’s driving manner endangered a person. But the jury

instruction on endangerment permitted the jury to side-step the issue and find

Joaquin guilty simply because of his intoxicated condition. Therefore, the jury

could have accepted all of Joaquin’s legal and factual arguments about

endangerment but still have found him guilty based solely on his intoxication.

See Hernandez, 45 N.E.3d at 378 (reversing based on an erroneous jury

instruction because it permitted the jury to find the defendant guilty even if the

jury believed his defense). In other words, I cannot say with certainty that the

verdict would have been the same under a proper instruction. Therefore, I

believe we should reverse.

Obviously, however, the defendant is not required to prove his innocence—it is the State’s burden to prove his guilt beyond a reasonable doubt.

Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 12 of 12