MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this May 18 2018, 10:00 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Marc Lopez Curtis T. Hill, Jr. The Marc Lopez Law Firm Attorney General of Indiana Indianapolis, Indiana Laura R. Anderson Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Susanna Conlin, May 18, 2018
Appellant-Defendant, Court of Appeals Case No. 49A02-1709-CR-2080 v. Appeal from the Marion Superior Court. State of Indiana, The Honorable Clayton A. Graham, Judge. Appellee-Plaintiff. Trial Court Cause No. 49G07-1607-CM-27978
Friedlander, Senior Judge
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 1 of 15 [1] Susanna Conlin appeals from her conviction of operating a vehicle while 1 intoxicated endangering a person, a Class A misdemeanor. She argues the trial
court erred by misapplying a statutory presumption in favor of the State and by
abusing its discretion in the admission of evidence.
[2] The following issues are presented for our review:
1. Did the trial court misapply a statutory presumption under Indiana Code section 9-30-6-15(b) (2001) when finding Conlin guilty of operating a vehicle while intoxicated endangering a person? 2. Did the trial court err by admitting Conlin’s statement, 2 which she made prior to receiving Miranda warnings, that she was driving the vehicle at the time of the accident? 3. Did the trial court err by admitting statements made by the passenger of Conlin’s vehicle under the excited utterance exception to the hearsay rule? We affirm in part, and reverse and remand in part.
[3] At approximately 11:04 p.m. on July 20, 2016, Conlin was driving a vehicle, in
which Brett Lanpher was a passenger, when they were involved in a single-
vehicle crash at Exit 37D on Interstate 69 South. Another vehicle had sped past
Conlin’s vehicle causing her to lose control, hit a guardrail, go off the road, and
1 Ind. Code § 9-30-5-2(b) (2001). 2 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602 (1966).
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 2 of 15 flip her car on its hood up to three times, wrecking her vehicle. Extensive
damage encompassed the entire vehicle.
[4] At 11:12 p.m. Indiana State Trooper Stephon Mason was dispatched to the
location of the accident. Trooper Mason and emergency personnel arrived at
the scene at 11:34 p.m. Both Conlin and Lanpher were outside the vehicle and
had begun walking up the hill from where the vehicle finally came to rest.
When Mason asked the two about the cause of the accident, both Conlin and
Lanpher responded that while Conlin was driving the vehicle, another car
rapidly passed causing Conlin to lose control of the vehicle. While gathering
this information, Trooper Mason observed that Conlin had a laceration below
one of her eyes and was bleeding. He further observed that Conlin’s eyes were
red, her speech was slurred, her balance was poor–swaying back and forth, and
he detected an odor of alcohol from her person. The officer testified that
Lanpher also exhibited signs of intoxication.
[5] Conlin was evaluated by medical personnel on the scene, but declined medical
attention. Trooper Mason then asked Conlin if she had any physical
impairments that would affect her performance of field sobriety tests. After
Conlin denied having any physical impairments, she took the horizontal gaze
nystagmus (HGN) test and failed. No other field sobriety tests were
administered due to safety concerns and lighting issues. Based upon the
officer’s observations and Conlin’s failure to pass the HGN test, Trooper
Mason believed that Conlin was intoxicated.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 3 of 15 [6] Conlin initially consented to a chemical breath test, but then refused to
complete the test by providing an inadequate breath sample and by spitting out
the mouthpiece during at least three subsequent attempts at testing. Trooper
Mason informed Conlin that, in his opinion, her behavior constituted a refusal
of the test. He then sought and was granted a warrant for a blood draw.
Conlin was transported to a hospital where the blood draw occurred at 2:14
a.m. The results of the blood draw showed that Conlin’s blood alcohol content
was .098.
[7] On July 21, 2016, the State charged Conlin with one count of Class A
misdemeanor operating a vehicle while intoxicated endangering a person. The
State later amended the charging information to add a count of Class C 3 misdemeanor operating a vehicle with a BAC of .08 or more. At the
conclusion of Conlin’s bench trial, the trial court found her guilty on both
counts and found that the Class C misdemeanor charge merged with the Class
A misdemeanor count for sentencing purposes.
[8] More specifically, the record reflects that at the end of Conlin’s bench trial, the
trial court found Conlin guilty of operating a vehicle while intoxicated
endangering a person, a Class A misdemeanor. Tr. Vol. II, p. 91. The trial
court further stated that the “Court also finds Susanna Conlin guilty of Count
II, having a blood alcohol content over .08. For sentencing purposes Count II
3 Ind. Code § 9-30-5-1(a)(1) (2001).
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 4 of 15 will merge into Count I.” Id. The trial court’s written courtroom minutes
reflect that the trial court’s judgment was a finding of guilty on both counts with
Count II merging with Count I for sentencing purposes. Appellant’s App. Vol.
II, p. 89. The trial court’s sentencing order shows that the disposition of the
charges resulted in a finding of guilty on Count I and that for Count II the
conviction was merged. Id. at 83. The trial court imposed a one-year sentence
on Count I.
1. [9] Conlin’s first argument on appeal is that the trial court misapplied a statutory
presumption under Indiana Code section 9-30-6-15(b) when finding Conlin
guilty of operating a vehicle while intoxicated endangering a person. Because
the charges Conlin faced were offenses under Indiana Code chapter 9-30-5, the
statutory presumption was potentially applicable. The statutory presumption
provides as follows:
If, in a prosecution for an offense under IC 9-30-5, evidence establishes that: (1) a chemical test was performed on a test sample taken from the person charged with the offense within the period of time allowed for testing under section 2 of this chapter; and (2) the person charged with the offense had an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per: (A) one hundred (100) milliliters of the person’s blood at the time the test sample was taken; or (B) two hundred ten (210) liters of the person’s breath;
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 5 of 15 the trier of fact shall presume that the person charged with the offense had an alcohol concentration equivalent to at least eight- hundredths (0.08) gram of alcohol per one hundred (100) milliliters of the person’s blood or per two hundred ten (210) liters of the person’s breath at the time the person operated the vehicle. However, this presumption is rebuttable. Ind. Code § 9-30-6-15(b).
[10] The test must be administered within three hours after the law enforcement
officer had probable cause to believe the person committed an offense under
Indiana Code chapter 9-30-5 or a violation under Indiana Code chapter 9-30-15.
Ind. Code § 9-30-6-2(c) (1994). The three-hour time limit begins from the
moment at which the vehicle was operated in violation of Indiana Code chapter
9-30-5, not from the moment at which the officer ideates probable cause.
Mordacq v. State, 585 N.E.2d 22 (Ind. Ct. App. 1992). Indiana Code sections 9-
30-6-2 and 9-30-6-15 allow a fact-finder to relate the driver’s blood alcohol
content at the time of a chemical test back to the blood alcohol level at the time
of the operation of the vehicle if done within the three-hour time period.
Allman v. State, 728 N.E.2d 230 (Ind. Ct. App. 2000). There is no dispute that 4 the test was administered outside the three-hour time period.
4 At trial the State argued that the test was conducted “well within that three-hour time limit,” citing Trooper Mason’s arrival time of 11:34 p.m. and the test time of 2:14 a.m. Tr. Vol II, p. 87. On appeal, the State concedes that the blood test was taken outside the three-hour time period, thus depriving the State of the benefit of the statutory presumption. Appellee’s Br. p. 14. Although the test was not conducted within the three-hour time period, that affected only the presumption not the test’s admissibility. Mannix v. State, 54 N.E.3d 1002 (Ind. Ct. App. 2016).
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 6 of 15 [11] Conlin moved for a voluntary dismissal which was denied by the trial court.
Conlin had argued that Count II should be dismissed because the test was
conducted outside the three-hour time period and the State had failed to
provide any extrapolation evidence. Conlin further argued that Count I should
be dismissed because the other evidence of intoxication was insufficient to show
she was intoxicated.
[12] On appeal, one of the State’s arguments is that any error in the trial court’s
denial of what it characterizes as Conlin’s motion for a directed verdict “was
harmless as the trial court did not enter judgment of conviction on the BAC
charge.” Appellee’s Br. p. 11. The State supports this conclusion by arguing
that Conlin “only stands convicted of Class A misdemeanor operating a vehicle
while intoxicated endangering a person, which does not require proof of any 5 particular BAC.” Id. We disagree that the error is harmless.
[13] Indiana Code section 35-38-1-6 (1983) provides that if “a defendant is charged
with an offense and an included offense in separate counts [] and . . . is found
guilty of both counts[,] judgment and sentence may not be entered against the
defendant for the included offense.” A conviction of both an offense and its
lesser included offense is tantamount “to convicting a defendant twice for the
same conduct.” Parks v. State, 734 N.E.2d 694, 701 (Ind. Ct. App. 2000), trans.
5 The State notes that the record is unclear as to whether the trial court vacated the judgment of conviction on Count II, or just merged the convictions for sentencing purposes. Appellee’s Br. at 16 n.1. The State acknowledges that if the trial court did the latter, such is not sufficient to cure a double jeopardy violation and the conviction should be vacated. Id.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 7 of 15 denied. An offense is a lesser included offense if it differs from another only in
the respect that a less serious risk of harm to the public interest is required to
establish its commission. Watson v. State, 972 N.E.2d 378 (Ind. Ct. App. 2012).
[14] The Indiana General Assembly has classified the offense of operating a vehicle
while intoxicated in a manner that endangers a person as a Class A
misdemeanor, whereas the offense operating a vehicle with a blood alcohol
content of at least .08 percent but less than .15 percent is a Class C
misdemeanor. By the classification of the offenses, our legislature has
determined that the risk caused by an intoxicated driver who drives in a manner
that endangers a person is greater than the risk caused by a driver with a blood
alcohol content of at least .08 percent but less than .15 percent. Cf. Sering v.
State, 488 N.E.2d 369 (Ind. Ct. App. 1986) (legislative intent evidenced by
disparate classification of two offenses).
[15] In Townsend v. State, 860 N.E.2d 1268, 1270 n.1 (Ind. Ct. App. 2007), the trial
court entered judgment on a battery count, but merged the count with an
attempted murder count. The trial court did not sentence the defendant for the
battery count, but the chronological case summary indicated that judgment was
entered on that count. Id. On appeal, the battery conviction was reversed and
the matter was remanded to the trial court to vacate the factually lesser-included
offense. Id.
[16] Here, the charge against Conlin alleging Class C misdemeanor operating a
vehicle with a blood alcohol content of at least .08 percent but less than .15
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 8 of 15 percent is factually a lesser-included offense of Class A misdemeanor operating
a vehicle while intoxicated in a manner that endangers a person. We must
reverse Conlin’s Class C misdemeanor conviction and remand with instructions
that the trial court vacate the conviction.
[17] Because we have reversed and remanded the matter of Conlin’s conviction on
Count II, it is unnecessary to determine whether the trial court misapplied the
statutory presumption with respect to that charge.
[18] With respect to Count I, there is no evidence in the record that the trial court
mentioned the statutory presumption in finding Conlin guilty. Intoxication, in
pertinent part, is defined by statute as being under the influence of alcohol 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 (2013). The State must
establish that the defendant was impaired, regardless of her blood alcohol
content. Miller v. State, 641 N.E.2d 64 (Ind. Ct. App. 1994), trans. denied.
Evidence which can establish impairment includes: (1) the consumption of
significant amounts 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. Fields v. State, 888
N.E.2d 304 (Ind. Ct. App. 2008).
[19] The blood draw test results showed that Conlin’s blood alcohol content was
.098 three hours after the accident. Trooper Mason testified that when he
arrived at the scene of the accident, Conlin and Lanpher were walking from the
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 9 of 15 car and up the hill. He detected the odor of alcohol coming from Conlin. Her
eyes were red, and her speech was slurred. Her balance was poor and she was
swaying back and forth. Mason testified that during transport for the blood
draw Conlin told him she had consumed her last alcoholic beverage at 6:00
p.m. on July 20, 2016.
[20] Trooper Mason also testified that Conlin failed the HGN field sobriety test.
She challenges that evidence by arguing that Mason went against his training by
conducting a field sobriety test on a subject who had a head injury, referring to
the laceration under her eye. We consider this a request to reweigh the
evidence and decline to do so. Drane v. State, 867 N.E.2d 144 (Ind. 2007). The
trial court as the trier of fact heard the testimony and found Conlin guilty of
Count I. We find no error here.
2. [21] Next, Conlin argues that the trial court erred by admitting her statement, which
she made prior to receiving Miranda warnings, that she was driving the vehicle
at the time of the accident.
[22] Our standard of review of the admissibility of evidence is well established. We
review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Timberlake v. State, 690 N.E.2d 243 (Ind. 1997). An abuse of
discretion will be found if a trial court’s decision is clearly against the logic and
effect of the facts and circumstances before the court. Joyner v. State, 678
N.E.2d 386 (Ind. 1997). If the trial court abused its discretion by admitting the
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 10 of 15 challenged evidence, we will only reverse for the error if the error is inconsistent
with substantial justice or if a substantial right of the party is affected.
Timberlake, 690 N.E.2d 243. Error caused by the admission of evidence is
harmless error for which we will not reverse a conviction if the erroneously
admitted evidence was cumulative of other evidence that was appropriately
admitted. Stephenson v. State, 742 N.E.2d 463 (Ind. 2001), cert. denied.
[23] Conlin’s statements were made in response to Trooper Mason’s questions about
the cause of the accident. Miranda’s procedural safeguards apply only to
custodial interrogation. Orr v. State, 472 N.E.2d 627 (Ind. Ct. App. 1984).
They are not applicable to general on-the-scene investigation in a noncoercive
atmosphere. Id. Trooper Mason testified that Conlin was not in custody when
she made those statements. She and Lanpher were walking up the hill when
they encountered the trooper and were not restrained. After those statements
were made, Conlin was taken to the ambulance to be evaluated by medical
personnel and then later performed the HGN test.
[24] Conlin relies on Moore v. State, 723 N.E.2d 442 (Ind. Ct. App. 2000), but that
case is factually distinguishable. In Moore, upon the officer’s arrival at the scene
of an accident, he placed the defendant in the back seat of his car. The
defendant could not leave the scene and had a duty to provide information for
the officer’s accident report. A panel of this court described it as a custody-type
situation, but that the defendant was not in custody until the officer knew or
should have known he was investigating a potential crime rather than just an
accident when questioning the defendant. We held that Miranda warnings were
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 11 of 15 not required because the statements were made when the defendant was not in
custody and the officer was not yet aware that he was at a crime scene. Id.
[25] The facts here demonstrate that, unlike Moore, Conlin was not in a custody-type
situation, but like Moore the officer did not yet know he was investigating a
crime when the statements were made. Miranda warnings were not necessary.
We find no abuse of discretion in the trial court’s decision to deny the oral
motion to suppress and admit Conlin’s statements.
3. [26] Conlin contends that the trial court erred by admitting statements made by
Lanpher under the excited utterance exception to the hearsay rule. As stated
above, we review a trial court’s decision to admit or exclude evidence for an
abuse of discretion. Timberlake, 690 N.E.2d 243.
[27] Lanpher did not testify at trial. Trooper Mason testified about Lanpher’s
responses to him while investigating the cause of the accident. The challenged
testimony is hearsay under Indiana Evidence Rule 801. Hearsay is an out-of-
court statement offered to prove the truth of the matter asserted, and it is
inadmissible unless it falls under a hearsay exception. Ind. R. Evid. 801. An
excited utterance is “[a] statement related to a startling event or condition made
while the declarant was under the stress of excitement caused by the event or
condition” and is not excluded by the hearsay rule. Ind. R. Evid. 803(2).
[28] “To meet the excited utterance exception, three elements must be present: (1) a
‘startling event or condition’ has occurred; (2) the declarant made a statement Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 12 of 15 while ‘under the stress or excitement caused by the event or condition;’ and (3)
the statement was ‘related to the event or condition.’” Young v. State, 980
N.E.2d 412, 421 (Ind. Ct. App. 2012) (quoting Lawrence v. State, 959 N.E.2d
385, 389 (Ind. Ct. App. 2012)). “This is not a mechanical test, and the
admissibility of an allegedly excited utterance turns on whether the statement
was inherently reliable because the witness was under the stress of the event and
unlikely to make deliberate falsifications.” Sandefur v. State, 945 N.E.2d 785,
788 (Ind. Ct. App. 2011) (quoting Boatner v. State, 934 N.E.2d 184, 186 (Ind. Ct.
App. 2010)). “The heart of the inquiry is whether the declarant was incapable
of thoughtful reflection.” Id. “Although the amount of time that has passed is
not dispositive, a statement that is made long after the startling event is usually
less likely to be an excited utterance.” Id.
[29] Conlin cites to the time–thirty minutes–between the accident and when
Lanpher made the statements to Trooper Mason. We have already noted that
the amount of time that has passed is not dispositive. Id. Here, Lanpher was in
the process of ascending the hill from the vehicle’s resting place when Trooper
Mason asked about the cause of the accident. Lanpher, using animated and
colorful language, described the events that had happened and identified Conlin
as the driver of the vehicle. All three elements for an excited utterance were
present.
[30] We also note that both before and after Conlin received her Miranda warnings,
she gave the same responses to Trooper Mason. Lanpher’s statements were
cumulative of those made by Conlin.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 13 of 15 [31] Conlin also argues that the statements should not have been admitted because
she was deprived of the opportunity to cross-examine Lanpher about those
statements, citing Michigan v. Bryant, 562 U.S. 344 (2011). Conlin argues that
thirty minutes after the crash, even though Conlin and Lanpher had not
received medical assistance, there was no ongoing emergency.
[32] Our supreme court addressed Michigan v. Bryant and other cases decided before
it in Ward v. State, 50 N.E.3d 752, 757-58 (Ind. 2016). The court, quoting
Bryant, wrote the following:
Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. . . . The existence vel non of an ongoing emergency is not the touchstone of the testimonial inquiry. Rather, whether an ongoing emergency exists is simply one factor . . .that informs the ultimate inquiry regarding the primary purpose of an interrogation. (internal quotation marks and citations omitted).
[33] The circumstances here show that Lanpher’s responses to Trooper Mason’s
questions “what happened” and “are you okay,” were non-testimonial in
nature. Tr. Vol. II, p. 26. The primary purpose of Trooper Mason’s questions
was to determine the cause of the accident and to determine the extent of the
injuries of those involved in a severe roll-over accident. Applying Bryant and
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 14 of 15 Ward to this case, we conclude that the Trooper was asking questions as part of
an ongoing emergency, the primary purpose of which did not involve
establishing evidence for trial. Conlin’s right to confrontation was not violated,
and the trial court did not abuse its discretion by admitting the statements under 6 the excited utterance exception to the hearsay rule.
[34] In light of the foregoing we affirm in part, and reverse and remand in part.
[35] Judgment affirmed in part, and reversed and remanded in part.
Baker, J., and Najam, J., concur.
6 The trial court stated that the statements were admitted for a limited purpose without explaining what that limited purpose was. We consider this statement to be superfluous because Lanpher’s statements were properly admitted.
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2080 | May 18, 2018 Page 15 of 15