Slate v. State

798 N.E.2d 510, 2003 Ind. App. LEXIS 2113, 2003 WL 22671564
CourtIndiana Court of Appeals
DecidedNovember 13, 2003
Docket49A02-0301-CR-1
StatusPublished
Cited by15 cases

This text of 798 N.E.2d 510 (Slate v. State) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Slate v. State, 798 N.E.2d 510, 2003 Ind. App. LEXIS 2113, 2003 WL 22671564 (Ind. Ct. App. 2003).

Opinion

OPINION

BAILEY, Judge.

Case Summary

Appellant-defendant Donald D. Slate ("Slate") appeals his conviction for operating a vehicle while intoxicated as a Class A misdemeanor. 1 Slate also appeals the trial court's finding that he committed a traffic infraction. We affirm.

Issues

On appeal, Slate raises four issues, which we reorder and restate as:

I. Whether the trial court abused its discretion when it instructed the jury;
II. Whether the trial court abused its discretion by sua sponte removing a juror from the panel and replacing her with the alternate juror;
III. Whether his conviction for operating a vehicle while intoxicated is sufficiently inconsistent with his acquittal on the charge of public intoxication as to require that his conviction for operating a vehicle while intoxicated be set aside; and
IV. Whether the evidence is sufficient to support the trial court's finding that Slate committed a traffic infraction by failing to use his turn signal.

Facts and Procedural History

On May 4, 2002, at approximately 1:20 a.m., Indianapolis Police Officer Benjamin Hunter ("Officer Hunter") observed Slate drive past him at a high rate of speed. *513 Officer Hunter also witnessed Slate slow down, rather than come to a complete stop, at a red light. Slate then made a right-hand turn without using his turn signal. Slate was traveling in a highly populated area, "like a bar district." Tr. at 1831. Indeed, Officer Hunter remarked that several people were walking on the sidewalks.

Because Slate was speeding, failed to stop at a red light, and failed to use his turn signal, Officer Hunter initiated a traffic stop. When Officer Hunter approached Slate's vehicle, Slate rolled down his window and Officer Hunter "smelled a strong odor of alcohol." Id. at 133. Slate "fumbled with his wallet" for approximately a minute or a minute and a half as he attempted to present Officer Hunter with a second form of identification. Id. Officer Hunter noticed that Slate's eyes were red and bloodshot and that his speech was slow and deliberate.

At the scene of the traffic stop, Officer Hunter administered two field sobriety tests: (1) the one-legged stand test; and (2) the nine-step walk and turn test. Slate failed both tests. Officer Hunter then read Slate the warning of the Indiana Implied Consent Law and Slate agreed to submit to a chemical breath test. The results of the breath test revealed that Slate had a Blood Aleohol Concentration ("BAC") of .12 percent.

On May 6, 2002, the State charged Slate with two counts of operating a vehicle while intoxicated-Count I as a Class A misdemeanor pursuant to Indiana Code Section 9-80-5-2 2 and Count II as a Class C misdemeanor under Indiana Code Seetion 9-30-5-1(a) 3 The State also charged Slate with public intoxication as a Class B misdemeanor 4 At Slate's jury trial, the State tendered and the trial court gave, over Slate's objection, Final Instruction Number Five ("Instruction Five"), which provides as follows:

Endangerment means that [Slate's] condition or manner of operating the vehicle could have endangered any person, including the public, the police, or [Slate.] Thus, proof that [Slate's] condition rendered operation of the vehicle unsafe is sufficient to establish endangerment.

Appellant's App. at 60. In addition, following the presentation of the evidence, Slate tendered a proposed final jury instruction on the offense of reckless driving, which the trial court refused because the offense of reckless driving is not a lesser-included offense of operating a vehicle while intoxicated. Before closing arguments began, the State brought to the trial court's attention that a Juror had periodically dozed off during the trial. Noting that the Juror had fallen asleep "no less than fifteen or twenty times," the trial court replaced the Juror with the alternate juror, over Slate's objection. Tr. at 304.

At the conclusion of the trial, the jury found Slate guilty of operating a vehicle *514 while intoxicated as a Class A misdemean- or and as a Class C misdemeanor. The jury found Slate not guilty of public intoxication. The trial court merged the Class C misdemeanor verdict into the Class A misdemeanor verdict and entered a judgment of conviction against Slate for operating a vehicle while intoxicated as a Class A misdemeanor. The trial court also found that Slate committed the infraction of failure to signal, in violation of Indiana Code Section 9-21-8-24, but imposed no penalty for such infraction. Slate now appeals.

Discussion and Decision

I. The Final Instructions

Slate first argues that the trial court abused its discretion by improperly instructing the jury. The giving of jury instructions is a matter within the sound discretion of the trial court, and we review the trial court's refusal to give a tendered instruction for an abuse of that discretion. McCarthy v. State, 751 N.E.2d 753, 755 (Ind.Ct.App.2001), trams. denied. However, an abuse of discretion does not occur if the instructions, considered as a whole and in reference to each other, do not mislead the jury as to the applicable law. Young v. State, 696 N.E.2d 386, 389-90 (Ind.1998).

In the present case, Slate contends that the trial court improperly instructed the jury regarding the offense of operating a vehicle while intoxicated by giving the endangerment instruction, i.e., Instruction Five. Slate also asserts that the trial court abused its discretion by refusing to give an instruction on reckless driving because it is a lesser-included offense of operating a vehicle while intoxicated. We address each of these arguments separately.

A. Endangerment Instruction

First, Slate argues that the trial court improperly instructed the jury on endangerment as an element of operating a vehicle while intoxicated. Specifically, Slate attacks the trial court's giving of Instruction Five, which provides as follows:

Endangerment means that [Slate's] condition or manner of operating the vehicle could have endangered any person, including the public, the police, or [Slate.] Thus, proof that [Slate's] condition rendered operation of the vehicle unsafe is sufficient to establish endangerment.

Appellant's App. at 60 (emphasis added). In reviewing a trial court's decision to give a tendered jury instruction, we consider: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (8) whether the substance of the tendered instruction is covered by other instructions that are given. Wooley v. State, 716 N.E.2d 919, 926 (Ind.1999).

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Bluebook (online)
798 N.E.2d 510, 2003 Ind. App. LEXIS 2113, 2003 WL 22671564, Counsel Stack Legal Research, https://law.counselstack.com/opinion/slate-v-state-indctapp-2003.