Pierre Patrick Williams v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 13, 2017
• Docket: 71A05-1701-CR-23
• 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 Sep 13 2017, 8:44 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Mark F. James Curtis T. Hill, Jr. Anderson, Agostino & Keller P.C. Attorney General of Indiana South Bend, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Pierre Patrick Williams, September 13, 2017 Appellant-Defendant, Court of Appeals Case No. 71A05-1701-CR-23 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1504-F6-213

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 1 of 10 [1] Pierre Patrick Williams appeals his conviction for operating a vehicle while

intoxicated as a level 6 felony. Williams raises one issue which we revise and

restate as whether the evidence is sufficient to sustain his conviction. We

affirm.

Facts and Procedural History

[2] Around 1:15 or 1:30 a.m. on April 15, 2015, New Carlisle Police Officer Ron

Whitt was traveling eastbound on State Road 2 when a vehicle came up behind

him “pretty fast” with its bright lights on. Transcript at 11. By setting the

cruise control of his patrol car to sixty miles per hour and activating its same

direction radar, Officer Whitt captured the vehicle’s speed as eighty miles per

hour, twenty miles above the speed limit. He activated his patrol car’s

emergency lights and initiated a stop of the vehicle.

[3] Officer Whitt approached the driver, Williams, informed him of the reason for

the stop, and asked for his information. As he spoke to Williams, Officer Whitt

noticed that “his eyes were red and watery” and smelled the “odor commonly

associated with an alcoholic beverage” coming from Williams. Id. at 14.

Returning to his patrol car to run a license check, Officer Whitt turned off his

front emergency lights and activated the patrol car’s recording device. Officer

Deak arrived at the scene, spoke with Williams, and “could smell a little bit an

odor of alcohol.” Id. at 55. Officer Whitt illuminated a dry and level location

and returned to have Williams step out of his vehicle to perform field sobriety

testing, only to find him asleep. After Williams exited his vehicle, Officer

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 2 of 10 Whitt could still smell alcohol coming from him. Williams failed the

horizontal gaze nystagmus test (“HGN”) test.

[4] After administering the field sobriety tests, Officer Whitt offered a portable

breath test to Williams, who took it and asked what he had received. Officer

Whitt then recited the Indiana implied consent law, and Williams said he

would not take the chemical test. Officer Whitt then placed Williams in

handcuffs and transported him to the St. Joseph County jail. At the jail, Officer

Whitt again read the Indiana implied consent law to Williams, and again he

refused the test. Officer Whitt had him step into the booking area, where he

first laid down on the bench and then rolled off onto the floor. While at the jail,

he made various statements, including “I’m going to throw up” and “Dang, I

got lit.” State’s Exhibit 2 at 0:58, 4:32.

[5] On April 6, 2015, the State charged Williams with two counts of operating a

vehicle while intoxicated, one as a class C misdemeanor and the other as a level

6 felony. On September 1, 2016, the court held a bench trial at which the State

presented the testimony of Officer Whitt and Officer Deak. Officer Whitt

testified that first he had Williams perform the HGN, and that Williams

exhibited all six clues or indicators that officers look for when having people

perform the HGN test: each eye exhibited lack of smooth pursuit, nystagmus

prior to 45 degrees, and distinct and sustained nystagmus.1 Officer Whitt also

1 Officer Williams testified that three clues must be shown for a person to have failed the test.

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 3 of 10 testified that he explained and demonstrated the nine step walk and turn test, or

a divided attention test, that Williams stepped “side to side and not heel to toe”

and made an improper turn, and that he failed the test. Transcript at 42.

[6] When the prosecutor moved to admit a recording of Officer Whitt

administering the field sobriety tests, Williams’s counsel requested that the

court “stop viewing at 1:24 a.m., which is where the portable breath test

begins.” Id. at 28-29. The court stated “[o]kay” and granted the prosecutor

permission to publish “as long as we can stop at that point.” Id. at 29. The

court admitted without objection video from the jail vestibule as State’s Exhibit

2 and video from the breath test room as State’s Exhibit 3. The video from the

jail vestibule reflects Williams’s statement, “Dang, I got lit.” State’s Exhibit 2

at 4:32.

[7] After the State rested, Nichelle Jones testified that during the night of the traffic

stop she was in the vehicle with Williams, they were coming from a casino

where Williams had one drink, and while there she was not with him the whole

time. On cross-examination, Jones testified that Williams was “drinking

coffee.” Transcript at 62. When questioned further, Jones also testified the one

drink she saw Williams have was a “virgin long island iced tea” which

contained only “rum,” and that she only saw Williams have one drink. Id. at

62-63.

[8] On September 26, 2016, the court found Williams guilty of operating a vehicle

while intoxicated as a class C misdemeanor and entered an order containing

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 4 of 10 findings of fact and conclusions of law.2 On September 27, 2016, Williams

stipulated to a previous conviction within five years of operating a motor

vehicle while intoxicated. On December 13, 2016, the court entered a judgment

of conviction for operating a vehicle while intoxicated as a level 6 felony,

sentenced him to eighteen months, suspended the sentence to probation, and

suspended his driver’s license for a period of one year.

Discussion

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

for operating a vehicle while intoxicated as a level 6 felony. Williams argues

that the State failed to prove that he was intoxicated. He contends that the

State did not present evidence that he consumed a significant amount of alcohol

or that he had impaired attention and reflexes, unsteady balance, or slurred

speech, that the court gave improper weight to the field sobriety testing, and

that the HGN test was “not conducted in accordance with the NHTSA

guidelines.” Appellant’s Brief at 8. He also asserts that the court erroneously

considered video evidence that had been stipulated beforehand by the parties to

be omitted, namely video evidence “after Williams was administered the

portable breath test . . . anything after the time stamp of 1:24.” Id. at 6.

2 The court found State’s Exhibit 1 to be inconclusive on the issue of whether Williams failed the walk and turn test, and also that Williams “failed, at minimum, the Horizontal Gaze Nystagmus test . . . .” Appellant’s Appendix Volume II at 23.

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 5 of 10 Specifically, he asserts that the court improperly referred to a comment he made

after being shown the result of the portable breath test.

[10] The State contends that sufficient evidence supports Williams’s conviction and

points to Officer Whitt’s testimony that he observed Williams’s red, watery

eyes, he detected the odor of an alcoholic beverage on Williams, and that

Williams failed two field sobriety tests. In response to Williams’s claim of

improperly-considered evidence, the State argues Williams fails to provide a

description of the challenged evidence and notes that the court’s sentencing

order refers to Williams’s statement “Dang, I got lit” made while in the jail

vestibule as shown in State’s Exhibit 2.

[11] In a criminal case the trial court is not required to make either findings of fact

or conclusions of law. Dozier v. State, 709 N.E.2d 27, 30 (Ind. Ct. App. 1999)

(citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)). Thus, the focus of our

inquiry is not upon the remarks the trial court makes in a bench trial after

having reached the conclusion that a defendant is guilty. Id. Rather, we review

whether the evidence presented to the trial court as factfinder was sufficient to

sustain the conviction. Id.

[12] When reviewing the sufficiency of the evidence, we will affirm “if there is

substantial evidence of probative value supporting each element of the crime

from which a reasonable trier of fact could have found the defendant guilty

beyond a reasonable doubt.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)

(quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). We do not reweigh

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 6 of 10 the evidence or assess the credibility of the witnesses. Id. We consider

conflicting evidence most favorably to the trial court’s ruling. Id.

[13] 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.” Ind. Code § 9-30-5-3(a)(1)

provides that

a person who violates section 1 or 2 of this chapter commits a Level 6 felony if . . . the person has a previous conviction of operating while intoxicated that occurred within the five (5) years immediately preceding the occurrence of the violation of section 1 or 2 of this chapter[.]

“Intoxicated” means under the influence of alcohol, a controlled substance or a

combination of them “so that there is an impaired condition of thought and

action and the loss of normal control of a person’s faculties.” Ind. Code § 9-13-

2-86. “The State need not present separate proof of impairment of action,

impairment of thought, and loss of control of faculties to establish an

individual’s intoxication.” Woodson v. State, 966 N.E.2d 135, 142 (Ind. Ct. App.

2012), trans. denied. Rather, a person’s impairment is to be determined by

considering his capability as a whole, not component by component, such that

impairment of any of these three abilities equals impairment. Id. Such

impairment can be established by evidence of: (1) the consumption of a

significant amount 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; and (7) slurred speech. Id. (citing Fought v. State, Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 7 of 10 898 N.E.2d 447, 451 (Ind. Ct. App. 2008)). Proof of intoxication does not

require proof of a blood alcohol content level. Ballinger v. State, 717 N.E.2d

939, 943 (Ind. Ct. App. 1999); Jellison v. State, 656 N.E.2d 532, 535 (Ind. Ct.

App. 1995).

[14] To the extent that Williams argues that the trial court in its findings improperly

referred to his statement, “Dang, I got lit,” Appellant’s Appendix Volume II at

22, we note the record reveals that Williams made that statement in the booking

area of the jail as shown in the video admitted as State’s Exhibit 2 without

objection.3

[15] Turning to the evidence most favorable to Williams’s conviction, the record

reveals that Officer Whitt testified that he determined that Williams’s vehicle

was traveling eighty miles per hour in a sixty mile per hour speed zone. Officer

Whitt observed that Williams had red, watery eyes and detected the odor of an

alcoholic beverage on Williams when he first spoke to Williams and again after

Williams exited his vehicle. When Officer Whitt returned to have Williams

step out of his vehicle to perform field sobriety testing, he found him asleep.

3 The court’s findings of fact included the following finding: 5. The Court finds that State’s Exhibit 2, the DVD of the Defendant getting booked at the St. Joseph County Jail, to be most dispositive. In that DVD, the Defendant is laying down on a bench while answering the jail staff questions. He then says he feels like he’s going to throw up and rolls off the bench and lays on the ground instead. Later, after the jail staff has the Defendant blow into the portable breath test and shows him the results, the Defendant says, “Dang, I got lit!” Appellant’s Appendix Volume II at 22.

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 8 of 10 Williams failed, at minimum, the HGN test.4 While at the jail, he initially laid

on the bench, and then later stated, “I’m going to throw up,” rolled off the

bench, and lay down on the floor. See State’s Exhibit 2 at 0:58-1:48.

[16] Based upon the record, we conclude that evidence of probative value exists

from which the court as the trier of fact could find that Williams was

intoxicated and could have found him guilty beyond a reasonable doubt of

operating a vehicle while intoxicated as a level 6 felony. See Hall v. State, 174

Ind. App. 334, 336-337, 367 N.E.2d 1103, 1106-1107 (1977) (holding that the

evidence was sufficient to sustain the defendant’s conviction for driving while

under the influence of liquor where witnesses who saw the defendant

immediately following the accident believed that she was intoxicated, the

defendant’s car smelled of alcohol, and her vehicle was “driving very fast” and

“out of control”).

Conclusion

[17] For the foregoing reasons, we affirm Williams’s conviction for operating a

vehicle while intoxicated as a level 6 felony.

4 To the extent that Williams argues that the HGN test was not conducted in accordance with the NHTSA guidelines because “flashing lights . . . would affect the jerking of Williams [sic] eyeballs,” Appellant’s Brief at 7-8, we observe that Officer Whitt testified that he turned off the flashing lights on his vehicle. He also testified that he believed nobody “had front . . . emergency lights on,” that Officer Deak had his “red and blues off,” and that, “if there was [sic] any flashing lights, the flashing lights would be below knee level because it was [the] front strobe” from Officer Deak’s vehicle parked behind Officer Whitt’s vehicle. Transcript at 34-35.

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 9 of 10 [18] Affirmed.

Najam, J., and Kirsch, J, concur.

Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017 Page 10 of 10