Jorge Giron v. State of Indiana (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Dec 22 2017, 6:53 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Suzy St. John Curtis T. Hill, Jr.
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Jesse R. Drum
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jorge Giron, December 22, 2017
Appellant-Defendant, Court of Appeals Case No.
49A04-1706-CR-1246
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Steven Rubick,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G01-1607-F5-26654
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017 Page 1 of 5
[1] Jorge Giron appeals his convictions for Level 5 Felony Operating a Vehicle
After a Lifetime Suspension1 and Class A Misdemeanor Operating a Vehicle
While Intoxicated.2 He argues that the trial court misapplied the burden of
proof. Finding no error, we affirm.
Facts
[2] On the evening of July 10, 2016, Giron, a habitual traffic violator with a
lifetime driver’s license suspension, was driving alone in his truck near an
intersection in Indianapolis. He ran a stop sign and struck a truck driven by
Jonathan Mills. After the collision, Mills called 911 and parked his truck in
front of Giron’s truck to prevent him from driving away. Mills testified that
when Giron exited his vehicle, he was stumbling and slurring his speech.
[3] Indianapolis Metropolitan Police Officer John Dicicco responded to the scene.
After determining that Giron had a lifetime suspension, Officer Dicicco
observed that Giron struggled to keep his balance, had red, watery eyes, slurred
his speech, and smelled like alcohol. Suspecting that Giron was intoxicated,
Officer Dicicco arrested him and obtained a warrant for a blood draw, which
revealed Giron’s blood alcohol concentration was .15.
[4] On July 12, 2016, the State charged Giron with Level 5 felony operating a
vehicle after a lifetime suspension and Class A misdemeanor operating a
1
Ind. Code § 9-30-10-17(a)(1).
2
I.C. § 9-30-5-2.
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vehicle while intoxicated. Giron waived his right to a jury trial and on April 18,
2017, the trial court conducted a bench trial. At trial, Giron testified that he
had been drinking but that he had not been driving the truck and that the driver
had left the scene. After closing statements, the trial court found Giron guilty
as charged and stated that “[Giron’s] uncorroborated story would have been
helped had this heretofore unidentified driver appeared today, but he didn’t.”
Tr. Vol. II p. 39. Giron did not object to this statement.
[5] At a May 12, 2017, sentencing hearing, the trial court sentenced Giron to
concurrent terms of three years for operating a vehicle after a lifetime
suspension and one year for operating a vehicle while intoxicated. After giving
him credit for time served, the trial court ordered Giron to serve the balance of
his sentence on home detention. He now appeals.
Discussion and Decision
[6] Giron’s sole argument on appeal is that the trial court misapplied the burden of
proof. There is “a strong presumption on appeal” that the trial court has
applied the correct burden of proof. Moran v. State, 622 N.E.2d 157, 159 (Ind.
Ct. App. 1993). To rebut this presumption, the record must establish with
“clarity and certainty” that the trial court used an erroneous standard. Id.Further, a failure to object at trial waives an issue for review unless fundamental
error has occurred. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “In
order to be fundamental, the error must represent a blatant violation of
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principles rendering the trial unfair to the defendant and thereby depriving the
defendant of due process.” Id.[7] Giron argues that the trial court’s statement regarding his failure to call the
alleged driver improperly implied that he bore the burden of proof and that the
trial court drew an adverse inference from his failure to call that witness. We
disagree.
[8] While it would have been better for the trial court to address the State’s
evidence first, the statement was made in the context of weighing conflicting
testimony and is immediately followed by a summary of the evidence presented
by the State. The trial court ended its explanation by stating that the “State has
met its burden as to both counts” and, beyond this lone statement, nothing in the
record suggests that the trial court placed the burden of proof on Giron or that it
drew an adverse inference from his failure to call the alleged driver. Tr. Vol. II
p. 39 (emphasis added). As such, we cannot say with clarity and certainty that
the trial court applied the incorrect standard, let alone that he received an unfair
trial because of the statement.3 Therefore, we find no error, fundamental or
otherwise.
3
Giron devotes a substantial portion of his brief to discussing State v. Brewer, 505 A.2d 774 (Me. 1985), which
is not controlling precedent and is factually distinguishable from the case before us.
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[9] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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