Dannie Carl Pattison v. State of Indiana ( 2015 )

Dec 04 2015, 8:47 am
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jerry T. Drook Gregory F. Zoeller
Marion, Indiana Attorney General of Indiana
Larry D. Allen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Dannie Carl Pattison, December 4, 2015
Appellant-Defendant, Court of Appeals Case No.
27A05-1411-CR-517
v. Appeal from the Grant Superior
Court
State of Indiana, The Honorable Warren Haas, Judge
Trial Court Cause No.
Appellee-Plaintiff.
27D03-1303-FD-110
May, Judge.
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[1] Dannie Carl Pattison appeals his conviction of Class D felony operating a vehicle
with an alcohol concentration equivalent (ACE) of .08% or more with a prior
conviction within the last five years. 1 Pattison asserts a jury instruction included a
constitutionally impermissible evidentiary presumption that shifted the burden of
proof to him on an element of the offense.
[2] We reverse.
Facts and Procedural History
[3] On March 3, 2013, around 1:30 a.m., Jonesboro Police Officer Justin Chambers
stopped Pattison’s car because the taillights were not working. Officer Chambers
activated his lights in order to pull Pattison over. Pattison did not stop until he
pulled into his own driveway, approximately five hundred feet later. Officer
Chambers pulled into the driveway behind Pattison.
[4] Pattison pulled himself out of the car as Officer Chambers approached. Pattison
did not provide his driver’s license when requested. Officer Chambers noticed
Pattison had “watery eyes and slurred speech and . . . a strong odor of . . . an
alcoholic beverage.” (Tr. at 11.) Pattison “stated that he had had a couple of beers
earlier that night.” (Id. at 12.) Officer Chambers decided to conduct field sobriety
tests.
1
Ind. Code § 9-30-5-1(a) (2001) & Ind. Code § 9-30-5-3(a)(1) (2008).
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[5] Pattison claimed that, due to prior injuries, he could perform only the horizontal
gaze nystagmus (“HGN”) test. Pattison failed that test and a portable breathalyzer
test. After being advised of Indiana’s implied consent law, Pattison agreed to a
certified chemical test. That test indicated his alcohol concentration equivalent
(“ACE”) was .10%. Pattison was arrested and charged with operating a vehicle
with an ACE of .08% or more.
[6] The jury first found Pattison guilty of Class C misdemeanor operating a vehicle
with an ACE of .08% or more. Then the State presented evidence of Pattison’s
prior convictions, which Pattison did not contest. The jury found Pattison guilty of
Class D felony operating a vehicle with an ACE of 0.08% or more, with a prior
conviction within five (5) years. The trial court pronounced a three-year sentence.
Discussion and Decision
[7] Pattison challenges a jury instruction. “The manner of instructing a jury is left to
the sound discretion of the trial court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct.
App. 2013), trans. denied. We reverse only if the instructions are an abuse of
discretion, Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010), which occurs
when an instruction is erroneous and the instructions, taken as a whole, misstate
the law or mislead the jury. Id.
[8] Pattison did not object at trial to the jury instruction now challenged. An issue is
waived for appellate review unless a party objected to the alleged error at trial.
Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015). Despite waiver, relief remains
available under a narrow exception for fundamental error. Id. A fundamental
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error is one that “constitutes a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error denies the defendant
fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind.
2006)).
[9] Pattison asserts the challenged instruction resulted in fundamental error because it
contained a constitutionally impermissible evidentiary presumption. An
evidentiary presumption is an “assumption that a fact exists because of the known
or proven existence of some other fact or group of facts.” Black’s Law Dictionary
1376 (10th ed. 2014). When the law requires one fact to be assumed based on
another fact or other facts, the presumption created is mandatory. 2 Sturgeon v.
State, 575 N.E.2d 679, 680 n.4 (Ind. Ct. App. 1991). Mandatory presumptions can
be conclusive or rebuttable. Id. “A conclusive presumption removes the presumed
element from the case once the State has proved the predicate facts.” Id. A
rebuttable presumption “does not remove the presumed element from the case” but
requires the jury to presume it to be true unless the defendant persuades them
otherwise. Id.
[10] As Black’s further explains:
Most presumptions are rules of evidence calling for a certain result in a
given case unless the adversely affected party overcomes it with other
evidence. A presumption shifts the burden of production or
2
When the law permits, but does not require, a factual conclusion to be drawn based on other facts known or
proven, a permissive inference has been created. Sturgeon v. State, 575 N.E.2d 679, 680 n.4 (Ind. Ct. App.
1991).
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persuasion to the opposing party, who can then attempt to overcome
the presumption.
[11] Black’s Law Dictionary 1376. Both conclusive and rebuttable mandatory
presumptions “violate the Due Process Clause if they relieve the State of the
burden of persuasion on an element of a criminal offense.” Sturgeon, 575 N.E.2d at
680. See also Collins v. State, 567 N.E.2d 798, 801 (Ind. 1991) (Regarding
instruction that informed jury evidence of letter being mailed was prima facie proof
that it was received, the court held: “Even though the instruction made the
presumption rebuttable, a mandatory rebuttable presumption is no less
unconstitutional.”).
[12] With this background in mind, we turn to the instruction Pattison challenges. To
prove Pattison guilty as charged, the State had to present evidence he “operate[d] a
vehicle with an alcohol concentration equivalent [ACE] to at least eight-
hundredths (0.08) gram of alcohol . . . per . . . two hundred ten (210) liters of the
person’s breath.” Ind. Code § 9-30-5-1. At a trial for such charge, evidence of the
driver’s ACE at the time of driving or within three hours thereof is admissible.
Ind. Code § 9-30-6-15(a) (certain ACE evidence is admissible) & Ind. Code § 9-30-
6-2 (if tested within three hours).
[13] Furthermore, our legislature has provided:
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
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(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;
the trier of fact shall presume that the person charged with the offense
had an alcohol concentration equivalent [ACE] 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). 3
[14] Because Pattison’s test was administered within the permissible time frame and his
BAC was .10%, the trial court gave the following jury instruction:
Rebuttable Presumption
If in a prosecution for operating a vehicle with at least eight-
hundredths (0.08) gram of alcohol in 210 liters of the breath, if
evidence establishes that:
• a chemical test was performed within three (3) hours after the
law enforcement officer had probable cause to believe the
person committed the crime; and
• the person charged with the offense had an alcohol
concentration equivalent to at least eight-hundredths (0.08)
gram of alcohol per two hundred ten (210) liters of the person’s
breath;
3
Our Legislature enacted the first version of this statute shortly after our court held ACE results from a test
taken after an arrest were sufficiently relevant to be admissible as to the question of ACE at the time of
driving, but that such results could not prove ACE at the time of driving. See Hall v. State, 560 N.E.2d 561,
563 (Ind. Ct. App. 1990) (“Shortly after the Smith [v. State, 502 N.E.2d 122, 123 (Ind. Ct. App. 1986), trans.
denied, superseded by statute] case, the legislature added” the subsection.).
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the jury 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 two hundred ten (210) liters of the person’s breath
at the time the person operated the vehicle. However, the presumption
is rebuttable.
[15] (App. at 33.) Pattison argues the presumption created in that instruction
unconstitutionally shifted the burden of proof to him.
[16] In 1989, we first addressed the constitutionality of the statutory presumption that
underlies the instruction given to Pattison’s jury. Chilcutt v. State, 544 N.E.2d 856,
857-58 (Ind. Ct. App. 1989), trans. denied. Chilcutt argued the statute
“unconstitutionally shifted the burden of proof away from the State, effectively
requiring him to prove his innocence.” Id. at 857. We held
the State did prove each element of the offense beyond a reasonable
doubt. The defendant admitted operating the vehicle and the State
proved that a proper and reliable blood alcohol test was given to him.
The test results, showing that defendant had a .17% blood alcohol
content, were entered into evidence. In addition, the State also had
the following testimony of Officer Jolley: “[Chilcutt] stated that he had
not had anything to drink since the accident.”
In 22A C.J.S. Criminal Law § 579, pp. 331-332, it is stated:
“The legislature may enact laws declaring that, on proof of one
fact, another fact may be inferred or presumed, and such
enactments are constitutional, provided no constitutional right
of accused is destroyed thereby, the presumption is subject to
rebuttal, and there is some rational connection between the fact
proved and the ultimate fact presumed.”
22A C.J.S. Criminal Law § 579.
There is a rational connection in IND.CODE § 9-11-4-15 [now
codified at Ind. Code § 9-30-6-15] between the fact proved and the
ultimate fact presumed. The fact proved is the person had a blood
alcohol content of at least .10% at the time the test sample was taken,
which was within the specified period of time. This leads to the
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ultimate fact presumed that within this time period when the
defendant had been operating his vehicle he had at least a blood
alcohol content of .10%.
Presumptions in criminal statutes are not considered conclusive and do
not affect the burden of proof, but shift the burden of going forward
with evidence to the defendant. 22A C.J.S. Criminal Law § 579 (1988
Supp.). The State remains responsible for proving the necessary
elements of the offense beyond a reasonable doubt. The defendant’s
constitutional rights have not been destroyed. The presumption is
rebuttable and the defendant may produce evidence to overcome the
presumption.
[Chilcutt] argues that he is having to prove his innocence by producing
evidence of post-accident consumption of alcohol. While the State
must establish all the elements of the crime, it does not have the
burden of negating all affirmative defenses which excuse or exempt the
defendant. . . . .
Post-accident consumption of alcohol is regarded as an affirmative
defense. . . . Thus, defendant had the burden of establishing this
defense and none of his constitutional rights were destroyed thereby.
Chilcutt, 544 N.E.2d at 858.
[17] Then, a year later, in Hall, we held that, although Chilcutt properly determined the
statute creating the presumption was constitutional, a jury instruction that tracked
the language of the statute was erroneous because it ran the risk of misleading a
jury into thinking the presumption was mandatory, rather than permissive:
We agree with our Third District that the language contained in the
instruction does not create a conclusive presumption nor shift the
burden of proof to defendant.
This is not to say, however, that the mandatory language of the statute
and instruction compels the trier of fact to accept the presumption
when the defendant falls somewhat short of rebutting it. The statute
and instruction do not create and implement a conclusive
presumption. They do however appear to contemplate a mandatory
presumption.
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The instruction does not advise that the presumption is permissive in
the sense that the jury may accept or reject it and is not compelled to
find the presumed fact even if the defendant does not come forward
with evidence to rebut the presumption. To the contrary, the
instruction tracks the statute. The statute appears to create a
mandatory presumption and states that the jury “shall presume” unless
the presumption has been rebutted.
Chilcutt v. State held that the statute does not excuse the State from
proving each and every element of the offense beyond a reasonable
doubt and that it does not shift the burden of proof as to any such
element to the defendant. In light of this holding we are constrained to
state that notwithstanding the phrase “shall presume,” the statute does
not create a mandatory presumption. We hold therefore that even in a
case in which the defendant does not rebut or attempt to rebut the
presumption, the trier of fact is not compelled to find the presumed
fact of blood alcohol content at the time of vehicle operation from the
proved fact of blood alcohol content at the time of later testing. The
jury is free to accept the presumption or not, just as it is free to do with
other evidence.
Accordingly, the instruction although faithfully tracking the language
of the statute, was subject to a mandatory interpretation which could
have misled the jury with regard to its duty and prerogatives.
In its brief the State acknowledges that the Unites States Supreme
Court has repudiated mandatory presumptions and mandatory
rebuttable presumptions. It also recognizes that the words “shall be
presumed” have been held in other jurisdictions to create only a
permissive presumption.
We now hold likewise. Furthermore, we hold that an instruction
which embraces the statute must clearly advise the jury that the
presumption is only permissive. The instruction given in this case did
not do so.
Accordingly, we reverse the judgment and remand for a new trial.
Hall, 560 N.E.2d at 563-64 (internal citations omitted).
[18] We have reaffirmed the reasoning of Chilcutt and Hall on a number of occasions.
See Disbro v. State, 791 N.E.2d 774, 778 (Ind. Ct. App. 2003) (finding no error in
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jury instruction that included statutory language but also informed jury the
presumption could be rejected even if not rebutted by other evidence), trans. denied;
Finney v. State, 686 N.E.2d 133, 135 (Ind. Ct. App. 1997) (statute creating
presumption, Ind. Code § 9-30-6-15, is constitutional); Thompson v. State, 646
N.E.2d 687, passim (Ind. Ct. App. 1995) (no error when jury instructed the
presumption created by Ind. Code § 9-30-6-15 was both rebuttable and permissive,
such that jury could reject the presumption), trans. denied; Regan v. State, 950
N.E.2d 640, 645 (Ind. Ct. App. 1992) (Ind. Code § 9-11-4-15 is constitutional, and
jury instructions as a whole created no error when language of Ind. Code § 9-11-4-
15 supplemented with language informing jury that BAC alone was insufficient to
prove the element of ‘intoxication’ and that defendant had no burden to present
evidence to rebut the BAC evidence); Sturgeon, 575 N.E.2d at 681 (jury instruction
that tracked language of Ind. Code § 9-11-4-15 was constitutional error).
[19] As the instruction given to Pattison’s jury is essentially the same instruction given
in Hall, that instruction was erroneous. 4 See Sturgeon, 575 N.E.2d at 681
(instruction tracking statutory language created constitutional error); Hall, 560
4
The trial court indicated “we have, in the pattern instructions, things that are helpful, but I don’t think that
they’re really, um, simple to follow.” (Tr. at 80.) Unlike the constitutionally infirm instruction that was
given to the jury, the pattern jury instruction on this point of law at the time of Pattison’s trial explained: “It
creates an inference that the Defendant was sufficiently under the influence of alcohol to lessen Defendant’s
driving ability so as to be intoxicated within the meaning of the law. This inference is not conclusive. You
may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.117. In 2014, the instruction was updated to
read: “[Y]ou may infer that the Defendant was sufficiently under the influence of alcohol to lessen
Defendant’s driving ability so as to be intoxicated within the meaning of the law. You are not required to
make this inference. You may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.4240. As such,
the Pattern Jury Instruction was, and is, a more constitutionally appropriate statement of the inference
allowed.
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N.E.2d at 564 (“instruction which embraces the statute must clearly advise the jury
that the presumption is only permissive”).
[20] A single erroneous instruction, however, need not render the trial court’s entire
charge to the jury an abuse of discretion if other instructions correct the error
created by the erroneous instruction. See, e.g., Regan, 950 N.E.2d at 645 (no error
when statutory language supplemented with other language). The State points out
that the jury received a “Presumption of Innocence” instruction that explained the
State was responsible to prove “each element of the crime charged . . . [and] Mr.
Pattison was not required to present any evidence to prove his innocence or to
prove or explain anything.” (Appellee’s Br. at 11.) However, that instruction
about the presumption of innocence does not correct the improper presumption
created by the statute-based instruction at issue. See Sturgeon, 575 N.E.2d 682
(“General instructions on the State’s burden of persuasion and the defendant’s
presumption of innocence are not inconsistent with the burden-shifting
presumption and therefore do nothing to lessen the harm.”). Accordingly the
challenged instruction created constitutional error. See id. (holding instruction
created error).
[21] Nevertheless, as the State contends, an instruction that impermissibly shifts the
burden of proof “does not . . . automatically require the reversal of an otherwise
valid conviction” because even instructions that improperly shift the burden of
proof can be harmless. Id. Instructional error does “not require reversal of a
conviction where, after review of the entire record, the reviewing court concludes
the error was harmless beyond a reasonable doubt.” Collins, 567 N.E.2d at 801.
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[22] Unlike Regan, 950 N.E.2d 640, in which the defendant was charged with a version
of driving while intoxicated that permitted the jury to find the defendant guilty
based on his physical characteristics and behavior, Pattison was charged only with
driving while intoxicated with an ACE over .08%. As Pattison did not challenge
that he was driving, the presumption created by the erroneous instruction shifted
the burden of proof to Pattison on the only contested element in the case. In this
situation, we cannot say the instructional error was harmless. See, e.g., Sturgeon,
575 N.E.2d at 683 (unable to hold error harmless where evidence of Sturgeon’s
“appearance of intoxication” was inconclusive and conflicting). Accordingly, we
must reverse.
Conclusion
[23] Because the error caused by the court’s constitutionally infirm jury instruction was
neither corrected by the court’s other instructions nor harmless based on the other
evidence presented, we must reverse Pattison’s conviction.
[24] Reversed.
Robb, J., and Mathias, J., concur.
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