Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 31 2012, 8:47 am court except for the purpose of establishing the defense of res judicata, CLERK of the supreme court, collateral estoppel, or the law of the case. court of appeals and tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD R. SHULER GREGORY F. ZOELLER Barkes Kolbus Rife & Shuler Attorney General of Indiana Goshen, Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
SAMUEL DAVIS, JR., ) ) Appellant-Defendant, ) ) vs. ) No. 57A03-1110-CR-499 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )
APPEAL FROM THE NOBLE SUPERIOR COURT The Honorable Robert E. Kirsch, Judge Cause No. 57D01-1012-FB-4
July 31, 2012
MEMORANDUM DECISION – NOT FOR PUBLICATION
RILEY, Judge STATEMENT OF THE CASE
Appellant-Defendant, Samuel Davis, Jr. (Davis), appeals his conviction for
operating while intoxicated causing death, a Class B felony, Ind. Code § 9-30-5-5(b)(1).
We affirm.
ISSUES
Davis raises three issues on appeal, which we restate as the following four issues:
(1) Whether the admission of Davis’ blood test constituted fundamental error;
(2) Whether the State presented sufficient evidence beyond a reasonable doubt to
support Davis’ conviction;
(3) Whether the trial court properly refused to tender Davis’ proposed jury
instruction on unpreserved evidence; and
(4) Whether Davis’ sentence is inappropriate in light of his character and the
nature of the crime.
FACTS AND PROCEDURAL HISTORY
In March of 2010, thirty-four year old Davis and twenty-two year old Victoria
Anderson (Anderson) were dating. Around 4 a.m. on March 2, 2010, Davis was driving
home and Anderson was in the passenger seat. At some point, Davis’ car left the
roadway and ran into a tree, with the passenger side absorbing the brunt of the impact.
Anderson was pronounced dead on the scene, with the cause of death being blunt force
trauma from the accident.
2 Around 4:30 a.m., Kosciusko County Sheriff’s Deputy Travis Shively (Officer
Shively) arrived at the scene. He noticed an odor of alcohol emanating from the car and
observed that Davis’ eyes were bloodshot. Davis was conscious but disoriented and
confused; Officer Shively did not see any sign of life from Anderson. Upon being told
that he had struck a tree, Davis responded, “no, I didn’t.” (Transcript p. 272).
Eventually, Davis was removed from the vehicle and transported by ambulance to a local
hospital. When Sheriff’s Deputy Brandon Hepler (Officer Hepler) entered the
ambulance, he smelled a strong odor of alcohol and observed that Davis’ eyes were
bloodshot and watery. Certified paramedic Naomi Oleson also smelled the odor of
alcohol, as well as flight nurse Cindy McDonald who accompanied Davis when he was
airlifted to Parkview Hospital, in Fort Wayne, Indiana.
Officer Hepler read the implied consent law to Davis three times in the ambulance,
but Davis never acknowledged that he heard advisement nor did he respond. Officer
Hepler requested an EMT to draw a blood sample from Davis, which was given to
Lieutenant Chris McKeand (Officer McKeand). When Officer McKeand learned of the
circumstances in which the blood draw had taken place, he became concerned about the
validity of the consent.1 He dispatched Sheriff’s Deputy Rick Shepherd (Officer
Shepherd) to the hospital to obtain another blood sample. When Officer Shepherd spoke
with Davis, he noticed the strong odor of alcohol, Davis’ bloodshot eyes, and his repeated
question about what had happened. Officer Shepherd read the implied consent law;
Davis did not respond but instead stared at the ceiling. Officer Shepherd informed
1 The blood sample obtained by Officer Hepler was never tested.
3 Officer McKeand about the lack of response and the Officers decided to get a search
warrant.
When Davis arrived at the Parkview Hospital, emergency room physician Dr.
Corbett Smith (Dr. Smith) ordered Davis’ blood to be tested for alcohol, among other
things, for the purpose of diagnosis and treatment. The hospital’s certified phlebotomist
drew Davis’ blood in accordance with the hospital’s protocols. The blood was
transferred to the hospital’s laboratory for immediate testing. Testing by the hospital’s
certified medical technician revealed a blood alcohol content of between .20 to .27. After
the results of the test were released to law enforcement pursuant to an emergency release
form, the blood sample was frozen and not further tested.
Officer Shepherd returned to the hospital with a search warrant to draw Davis’
blood. Hospital laboratory assistant, Shelli Hack (Hack), drew Davis’ blood following
the hospital’s protocols. After the blood draw, Hack handed the sample to Officer
Shepherd who completed the paperwork, packaged up the sample, and sealed it. Officer
Shepherd mailed the blood sample together with a urine sample that he had obtained, to
the State Toxicology lab by certified mail later that same morning.
A week later, on March 9, 2010, the sample was received by the State’s
Toxicology lab and stored in the walk-in refrigerator. On April 29, 2010, an analyst
retrieved the sample for testing, which revealed a blood alcohol content of .25. On May
12 and 18, 2010, further testing was conducted which showed the presence of marijuana
and cocaine metabolites in Davis’ blood.
4 Meanwhile, members of the Fatal Alcohol Crash Team (FACT) conducted an
investigation at the scene of the accident and found that the road was dry in the early
morning of March 2, 2010. FACT did not find any evidence that Davis applied his
brakes on or off the roadway, nor did the team find any evidence of any other response by
Davis, such as steering to correct the course of the vehicle. Following FACT’s
conclusions, Officer McKeand met with Davis. During the interview, Davis told the
Officer that on the morning of the accident, a car was coming towards him in his lane, he
applied his brakes and went off the road. After hearing this explanation, Officer
McKeand returned to the place of the accident. He inspected the road but was unable to
find any brake marks. Also, after obtaining a search warrant for Davis’ vehicle, Officer
Shepherd was unable to find any patches on the tires which would be indicative of the
application of hard braking during a skid. However, it should be noted that Officer
Shepherd only looked at those sections of the tires that were readily visible; he did not
rotate the tires.
On March 8, 2010, the State filed an Information charging Davis with operating
while intoxicated causing death, a Class B felony, I.C. § 9-30-5-5(b)(1). In May of 2010,
Davis entered into a plea agreement with the State to plead guilty to a lesser included
offense. This plea was rejected by the trial court for being deemed too lenient. In July of
2010, Davis again entered into a plea agreement but changed his mind at a subsequent
hearing and decided to plead not guilty. On August 6, 2010, the State filed an amended
Information charging Davis with Count I, causing the death of another person while
operating a motor vehicle with a blood alcohol content of at least .15, a Class B felony,
5 I.C. § 9-30-5-5; Count II, causing the death of another person while operating a motor
vehicle with a controlled substance, namely cocaine, a Class B felony, I.C. § 9-30-5-5;
and Count III, causing the death of another person while operating a motor vehicle with a
controlled substance, namely marijuana, a Class B felony, I.C. § 9-30-5-5. In December
2010, Davis entered into a third plea agreement but withdrew from that agreement as
well. On September 16, 2011, the State filed a second amendment to its Information and
added Count IV, operating while intoxicated, a Class C felony, I.C. § 9-30-5-5.
On October 4 through October 7, 2011 a jury trial was conducted. Prior to
handing the case to the jury, Davis tendered a handwritten proposed jury instruction
relating to unpreserved evidence, which the trial court declined to give. At the close of
the evidence, the jury found Davis guilty on all four Counts. On October 26, 2011, a
sentencing hearing was held. During the hearing, the trial court vacated the guilty verdict
on Counts II through IV based on double jeopardy grounds and sentenced Davis to
eighteen years incarcerated with three years suspended on Count I.
Davis now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION
I. Admission of Blood Test
Davis contends that the trial court erroneously admitted the blood test taken by
Officer Shepherd at Parkview Hospital after he had obtained a search warrant. Because
Davis failed to object to its admission during trial, he waived the argument. See Lewis v.
State, 755 N.E.2d 1116, 1122 (Ind. Ct. App. 2001) (failure to make a contemporaneous
objection to the admission of evidence at trial results in waiver of the error on appeal).
6 Davis now attempts to avoid waiver by claiming that the admission of the evidence
constituted fundamental error. The fundamental error exception is very narrow and is
defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered
impossible. Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied. To
be considered fundamental, an error “must constitute a blatant violation of basic
principles, the harm, or potential for harm must be substantial, and the resulting error
must deny the defendant fundamental due process.” Id.
Davis’ main contention on the admissibility of the blood test relates to the chain of
custody. Specifically, Davis argues that while Officer Shepherd obtained a blood and
urine sample at the hospital pursuant to a search warrant, no witness was present when
Officer Shepherd sealed the samples, and thus, it is doubtful that the State attained a
proper chain of custody.
The State bears a higher burden to establish the chain of custody of fungible
evidence, such as blood and hair samples, whose appearance is indistinguishable to the
naked eye. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). To establish a proper
chain of custody, the State must give reasonable assurances that the evidence remained in
an undisturbed condition. Id. However, the State need not establish a perfect chain of
custody and once the State “strongly suggests” the exact whereabouts of the evidence,
any gaps go to the weight of the evidence and not to admissibility. Id. Moreover, there is
a presumption of regularity in the handling of evidence by officers and there is a
presumption officers exercise due care in handling their duties. Id. To mount a
7 successful challenge to the chain of custody one must present evidence that does more
than raise a mere possibility that the evidence may have been tampered with. Id.
Here, the evidence establishes that Hack drew Davis’ blood upon receipt of the
search warrant; Officer Shepherd videotaped the blood draw. When Hack was finished,
she handed the vials to Officer Shepherd. At trial, Hack explained that the blood tubes
were vacuum sealed and automatically resealed when the needle was withdrawn from the
vials so nothing could come out. Officer Shepherd then completed the paperwork,
packaged up the samples, and sealed them. No witness was present during this process.
Officer Shepherd took the samples to the post office and mailed them to the State’s
toxicology lab by certified mail. While Officer Shepherd testified that he shipped the
samples immediately around 8 a.m., the post office time stamp for the certified mailing
shows a mailing time of 9:49 a.m.
Approximately a week later, on March 9, 2010, the samples were received by the
State’s toxicology lab and placed in the refrigerator. Evidence reflects that when the lab
received the blood sample, it was sealed, not coagulated, and no irregularities were noted.
Trial testimony explained that the week long delay in refrigeration did not affect the
quality of the blood sample as it did not need to be refrigerated, nor did the leaking urine
vial pose any contamination problem for the blood sample. Further documentation
identified the technicians who handled the sample, the testing they performed, and the
results thereof.
While we have previously held that “it is incumbent upon the State to present
evidence of the physician, nurse or someone in authority who was present at the taking of
8 the blood establishing a chain of custody of the specimen to the laboratory where the
testing is conducted,” we have never imposed a similar burden with respect to sealing the
package containing the blood sample. Culver v. State, 727 N.E.2d 1062, 1068 (Ind.
2000) (emphasis added). Nor will we impose this requirement today. As the sealing of
evidentiary material falls squarely within an officer’s duty of handling evidence, we
conclude that there is a presumption that Officer Shepherd exercised due care when
sealing the package. The mere fact that the mail certification indicated 9:49 a.m. rather
than the 8 a.m. as testified to by Officer Shepherd only goes to the weight of the
evidence, not its admissibility. We conclude that the State presented a proper chain of
custody and therefore the trial court did not err, let alone make a fundamental error, in the
admission of the blood sample.
III. Sufficiency of the Evidence
Next, Davis contends that the State presented insufficient evidence establishing
beyond a reasonable doubt that he was guilty of operating a vehicle while intoxicated
causing death, a Class B felony.
Our standard of review with regard to sufficiency claims is well settled. In
reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or
judge the credibility of the witnesses. Perez, 872 N.E.2d at 212-213. We will consider
only the evidence most favorable to the verdict and the reasonable inferences drawn
therefrom and will affirm if the evidence and those inferences constitute substantial
evidence of probative value to support the judgment. Id. at 213. A conviction may be
based upon circumstantial evidence alone. Id. Reversal is appropriate only when
9 reasonable persons would not be able to form inferences as to each material element of
the offense. Id.
To convict Davis of operating while intoxicated causing death, a Class B felony,
the State was required to prove that Davis, at least twenty-one years of age, caused the
death of Anderson when operating a motor vehicle with an alcohol concentration
equivalent to at least fifteen-hundredths (0.15) gram of alcohol per one hundred
milliliters of Davis’ blood. See I.C. § 9-30-5-5(b)(1). Davis focuses his argument on the
claim that the State failed to establish the requisite blood alcohol concentration.
Specifically, he contends that the facts and circumstances regarding his blood sample and
testing are too unreliable to be reasonably relied upon by the jury to support his
convictions.
First, we already determined above that the blood sample taken by Officer
Shepherd pursuant to a search warrant was properly obtained, sealed, and preserved
within the chain of custody guidelines. The testing of this blood sample indicated that
Davis had a blood alcohol content of .25, well above the statutory requirement of .15.
Moreover, the State presented evidence that several Officers smelled the odor of alcohol
on Davis, they noticed that his eyes were bloodshot, his speech was slurred, and he was
confused. Based on this evidence, the fact finder could reasonably find that the State
established the statutory blood alcohol concentration beyond a reasonable doubt.
Therefore, we affirm Davis’ conviction.
IV. Jury Instruction
10 Davis argues that the trial court abused its discretion when it rejected his proposed
handwritten jury instruction on destruction of evidence. It is well established by our
court that instructing the jury is within the discretion of the trial court. Perez, 872 N.E.2d
at 210. Jury instructions are to be considered as a whole and in reference to each other;
error in a particular instruction will not result in reversal unless the entire jury charge
misleads the jury as to the law in the case. Id. In reviewing a challenge to a jury
instruction, this court considers whether the instruction correctly states the law, whether
there was evidence in the record to support the giving of the instruction, and whether the
substance of the tendered instruction is covered by other instructions. Hubbard v. State,
742 N.E.2d 919, 921 (Ind. 2001).
Davis’ proposed jury instruction read as follows:
If you determine that the State has lost, destroyed or failed to preserve evidence whose contents or quality are important to the issues in this case, and that the explanation for the loss, destruction or failure to preserve is inadequate, then you should assume that the evidence was unfavorable to the State. This fact alone may leave you with a reasonable doubt about the accused’s guilt.
(Appellant’s App. p. 375). Referencing the blood sample ordered by Dr. Smith and
tested by Parkview Hospital, Davis asserts that once the test results were released to law
enforcement officers, the blood sample became evidence. He maintains that because this
sample was subsequently destroyed by the hospital, its destruction amounted to the
spoliation of evidence and warranted the tender of the proposed instruction.
Our review of the record indicates that no evidence was presented that this
particular sample was actually destroyed. The hospital’s certified medical technician,
11 Leslie Robertson (Robertson), who tested the blood sample after it was drawn, testified
that if alcohol is detected in a specific specimen, the specimen is frozen for up to three
months in the event re-testing is necessary. Pursuant to hospital protocol, the hospital
disposes of samples after three months; however, she did not know whether the
destruction actually happened. The hospital’s chemistry lead technologist, Richard
Brown (Brown), confirmed the hospital’s protocol to freeze a positive blood alcohol
sample for up to three months “in case there would be a request for a recheck from a
different laboratory to confirm the alcohol result.” (Tr. pp. 637-38). Brown added that
pursuant to general protocol the samples would be destroyed at the end of three months
but the hospital has the ability to hold samples as long as they want. However, no
evidence was presented that the sample of Davis’ blood was actually destroyed in
accordance with the hospital’s general procedure or could no longer be found in the
hospital’s storage unit. Because this evidence was lacking, there was no evidence in the
record that supported the giving of the instruction.
Even if we were to assume, arguendo, that the sample was destroyed pursuant to
hospital protocol, the presented evidence would still not support the tender of the
instruction. Although the proposed instruction clearly states that “the State has lost,
destroyed, or failed to preserve evidence,” there is no evidence that the State ever had
possession of the sample that was ordered by Dr. Smith and stored in accordance with
Parkview Hospital guidelines. Brown testified that the hospital retains the sample,
freezes it, and at the end of the three month period the samples are incinerated by the
hospital. Any test results emanating from the sample can be obtained by law
12 enforcement, but the sample itself is kept by the hospital. No evidence was presented to
contradict Brown’s testimony or to establish that the State ever had this particular sample
in its possession. As there was no evidence supporting the giving of the proposed
instruction, the trial court did not abuse its discretion when it rejected the instruction.
V. Sentencing
Lastly, Davis contends that the trial court abused its discretion when it imposed an
eighteen year sentence with three years suspended for his conviction for operating while
intoxicated causing death, a Class B felony. A person who commits a Class B felony
shall be imprisoned for a fixed term of between six and twenty years, with the advisory
sentence being ten years. I.C. § 35-50-2-5.
As long as the sentence is within the statutory range, it is subject to review only
for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on
reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is
clearly against the logic and effect of the facts and circumstances before the court, or the
reasonable, probable, and actual deductions to be drawn therefrom. Id. Although a trial
court may have acted within its lawful discretion in determining a sentence, Appellate
Rule 7(B) provides that the appellate court may revise a sentence authorized by statute if
the appellate court finds that the sentence is inappropriate in light of the nature of the
offense and the character of the offender. Id. On appeal, it is the defendant’s burden to
persuade us that the sentence imposed by the trial court is inappropriate. Childress v.
State, 848 N.E.2d 1073, 1080 (Ind. 2006).
13 With respect to the nature of his crime, Davis claims that “[t]here is nothing
regarding the circumstances of the offense that are remarkable.” (Appellant’s Br. p. 29).
While we agree that the nature of Davis’ crime is not remarkable, it is nevertheless very
serious. Davis’ blood alcohol content was .25, well above the statutory limit of .15.
Additionally, traces of marijuana and cocaine were found in Davis’ blood.
Turning to his character, we note that Davis has an extensive criminal record
dating back to 1994. His record includes two felony convictions: a Class D felony theft
in 1995 and a Class D felony resisting law enforcement in 2004. He has prior
misdemeanor convictions for public intoxication, possession of marijuana, and operating
while intoxicated in 2000. Davis’ record includes prior crimes of violence with battery
misdemeanor convictions in 1998, 2003, 2005, and 2006 as well as other misdemeanor
convictions for trespass in 1995, 1996, and 2003, conversion in 1999, and check
deception in 2005. He has previously violated his terms of probation. Davis’ record
clearly speaks of repeated criminal activity that has continued to the present day with no
significant period of law-abiding behavior. Furthermore, Davis’ pre-sentence
investigation report indicates that he is at a high risk to re-offend.
Moreover, it is telling that even though Davis had a blood alcohol content of .25 as
well as previous convictions involving drugs and alcohol, he continues to insist that his
alcohol use has never been a problem. Despite the clear evidence of guilt and his three
attempts to execute a guilty plea, Davis refused to accept any responsibility for his
actions.
14 Based on the evidence before us, we conclude that the sentence is not
inappropriate and affirm the trial court’s imposition of Davis’ sentence.
CONCLUSION
Based on the foregoing, we conclude that: (1) the trial court did not abuse its
discretion by admitting Davis’ blood test; (2) the State presented sufficient evidence
beyond a reasonable doubt to support Davis’ conviction; (3) the trial court properly
refused to tender Davis’ proposed jury instruction on unpreserved evidence; and (4) the
trial court properly sentenced Davis.
Affirmed.
NAJAM, J. and DARDEN, S. J. concur