Keevin G. Rassi v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Aug 16 2019, 8:56 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Donald R. Shuler Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP Attorney General
Goshen, Indiana
Benjamin J. Shoptaw
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Keevin G. Rassi, August 16, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-459
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable Gretchen S. Lund,
Appellee-Plaintiff Judge
Trial Court Cause No.
20D04-1804-CM-918
Crone, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 1 of 11
Case Summary
[1] Following a bench trial, the court found Keevin G. Rassi guilty of class A
misdemeanor operating a vehicle while intoxicated (“OWI”) and class B
misdemeanor leaving the scene of an accident. The court imposed concurrent
sentences of one year and 180 days, respectively, all suspended to probation.
Rassi contends that his convictions are not supported by sufficient evidence and
that his sentence is inappropriate in light of the nature of the offenses and his
character. We agree with Rassi that his leaving the scene of an accident
conviction is not supported by sufficient evidence and therefore reverse that
conviction. In all other respects, we affirm.
Facts and Procedural History
[2] The facts most favorable to the trial court’s judgment are as follows. At 1:45
a.m. on April 22, 2018, Bristol Police Department Officer Jerrid Arnold was
driving westbound on U.S. Highway 20 and approached the intersection of
County Road 27. At the northeast corner of the intersection, he saw a pickup
truck with its headlights on approximately five feet off the roadway in a ditch
owned by the Elkhart County Highway Department. The officer continued
westbound on Highway 20 “until [he] could safely turn around, then [he] went
back to the intersection to check on the vehicle[,]” which was facing southeast.
Tr. at 14. When he returned to the truck, its headlights were off. Officer
Arnold looked inside the truck and smelled the odor of “burnt rubber inside the
cabin of the vehicle.” Id.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 2 of 11
[3] The roadside area north of Highway 20 is “a marsh.” Id. at 15. “It has
standing water, it has cattails, it’s overgrown, it’s muddy[.]” Id. Officer Arnold
saw that “vegetation had been knocked over” and also saw “fresh” ruts “about
a foot deep and about […] four foot in length” where the truck “had attempted
to […] spin out and […] free itself.” Id. at 16, 15. The road surface was dry,
and Officer Arnold saw one set of “fresh wet footprints that left the vehicle and
headed northbound on County Road 27.” Id. at 16. The footprints led “to a
residence on the west side of the roadway.” Id. at 17. The officer also saw tire
marks on the road that led to the residence, which was owned by Logan
Hartsough. The driveway of the residence had “burnout marks in it.” Id. at 41.
Officer Arnold saw Rassi walking to the front door of the residence, which
“was approximately 40 to 50 yards north of” the accident site. Id. at 18.
[4] Rassi’s “pants were wet from about the knee down” and had mud and “cattail
fur” on them. Id. The tread pattern of his boots matched that of the wet
footprints on the road. Officer Arnold saw that Rassi “had glassy, bloodshot
eyes” and “swayed on occasion[.]” Id. He also had “slurred speech” and
“smelt of an alcoholic beverage.” Id. at 20. Officer Arnold asked Rassi “if he
had crashed his vehicle.” Id. at 19. Rassi was “very uncooperative.” Id. at 19.
The officer handcuffed Rassi and conducted a patdown search, which
uncovered a set of keys to the truck in his right front pocket.
[5] Officer Arnold asked Rassi to perform three field sobriety tests, all of which he
failed. Rassi refused to take a certified breath test. Officer Arnold read him his
Miranda rights, and Rassi replied that “he would not answer questions.” Id. at
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 3 of 11
51. Officer Arnold obtained a search warrant for a blood draw, which revealed
a blood alcohol concentration of .182. As the officer transported Rassi to jail,
Rassi “made the unprovoked statement that he had had six beers.” Id. at 45.
[6] The State charged Rassi with class A misdemeanor OWI and class B
misdemeanor leaving the scene of an accident. At Rassi’s bench trial,
Hartsough testified that he and Rassi had been listening to loud music and
drinking “in excess” at Hartsough’s home that evening and that he told Rassi
“he needed to stay.” Id. at 64. Hartsough told Rassi that he had an air mattress
that he would blow up for him, and he went to the garage to turn his air
compressor on. At that time, Rassi’s truck was parked in Hartsough’s
driveway. Hartsough “brought the air hose in, and proceeded to blow up the
mattress and at that point, [Rassi] had stepped outside[,]” presumably to smoke
a cigarette. Id. at 65. “Maybe a little bit more than five minutes” after
Hartsough went to get the mattress, Hartsough saw “red and blue lights” on the
wall as he was inflating the mattress. Id. at 73, 66. He “went to the door” and
saw “police officers, squad cars outside[.]” Id. at 66. He also saw Rassi “in the
road” and Rassi’s “vehicle farther down the road.” Id. Hartsough is
“completely deaf on the right hand side[,]” so he could not have heard Rassi’s
truck leave the driveway “if the stereo was on or the compressor was on, or the
multitude of both[.]” Id. at 72.
[7] The trial court found Rassi guilty as charged and sentenced him to concurrent
terms of one year for the class A misdemeanor and 180 days for the class B
misdemeanor, all suspended to probation. This appeal followed.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 4 of 11
Discussion and Decision
Section 1 – Rassi’s OWI conviction is supported by sufficient
evidence.
[8] Rassi asserts that his convictions are not supported by sufficient evidence.
“When reviewing the sufficiency of the evidence supporting a conviction, we
must affirm if the probative evidence and reasonable inferences drawn from the
evidence could have allowed a reasonable trier of fact to find the defendant
guilty beyond a reasonable doubt.” Abd v. State, 121 N.E.3d 624, 629 (Ind. Ct.
App. 2019), trans. denied. “It is not our job to reweigh the evidence or to judge
the credibility of the witnesses, and we consider any conflicting evidence most
favorably to the trial court’s ruling.” Id. “Furthermore, a criminal conviction
may properly rest entirely upon circumstantial evidence.” Id. “It is not
necessary that the evidence overcome every reasonable hypothesis of
innocence.” Hopson v. State, 95 N.E.3d 531, 533 (Ind. Ct. App. 2018). “The
evidence is sufficient if an inference may reasonably be drawn from it to support
the judgment.” Id.
[9] To convict Rassi of class A misdemeanor OWI, the State had to establish
beyond a reasonable doubt that he operated a vehicle while intoxicated in a
manner that endangered a person. Ind. Code § 9-30-5-2(b). Rassi first contends
that the State failed to prove that he operated his truck. The abovementioned
circumstantial evidence that Rassi operated his truck is overwhelming, and we
may not reweigh that evidence in his favor. He also contends that the State
failed to prove that he operated his truck in a manner that endangered a person.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 5 of 11
Section 9-30-5-2 “requires more than intoxication to prove endangerment.”
Burnett v. State, 74 N.E.3d 1221, 1225 (Ind. Ct. App. 2017) (quoting Dorsett v.
State, 921 N.E.2d 529, 532 (Ind. Ct. App. 2010)). “The element of
endangerment can be established by evidence showing that the defendant’s
condition or operating manner could have endangered any person, including
the public, the police, or the defendant.” Id. The State showed that Rassi drove
his truck off the road and into a ditch; this evidence was sufficient to establish
that he operated his vehicle in a manner that could have endangered himself.
Therefore, we affirm his conviction for class A misdemeanor OWI.
Section 2 – Rassi’s leaving the scene of an accident conviction
is not supported by sufficient evidence.
[10] Indiana Code Section 9-26-1-1.1 reads in pertinent part,
(a) The operator of a motor vehicle involved in an accident shall
do the following:
(1) Except as provided in section 1.2 of this chapter, the
operator shall immediately stop the operator’s motor
vehicle:
(A) at the scene of the accident; or
(B) as close to the accident as possible;
in a manner that does not obstruct traffic more than is
necessary.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 6 of 11
(2) Remain at the scene of the accident until the operator
does the following:
(A) Gives the operator’s name and address and the
registration number of the motor vehicle the
operator was driving to any person involved in the
accident.
(B) Exhibits the operator’s driver’s license to any
person involved in the accident or occupant of or
any person attending to any vehicle involved in the
accident.
….
(4) If the accident involves a collision with an unattended
vehicle or damage to property other than a vehicle, the
operator shall, in addition to the requirements of
subdivisions (1) and (2):
(A) take reasonable steps to locate and notify the
owner or person in charge of the damaged vehicle
or property of the damage; and
(B) if after reasonable inquiry the operator cannot
find the owner or person in charge of the damaged
vehicle or property, the operator must contact a law
enforcement officer or agency and provide the
information required by this section.
An operator of a motor vehicle who knowingly or intentionally fails to comply
with this subsection commits class B misdemeanor leaving the scene of the
accident. Ind. Code § 9-26-1-1.1(b).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 7 of 11
[11] In its charging information, the State alleged in pertinent part that Rassi
damaged unspecified “property of [the] Elkhart County Highway Department”1
and failed to “take reasonable steps to locate and notify the owner or person in
charge of the damaged property[.]” Appellant’s App. Vol. 2 at 17. Rassi argues
that “[t]here is simply insufficient evidence to establish that [he] was involved in
an accident that resulted in property damage.” Appellant’s Br. at 17. He
further argues that, “[d]ue to the quickness in which the police were at the
scene, [he] was never given the opportunity to take reasonable steps to identify
the owner of any damaged property and notify them accordingly.” Id. at 16.
[12] Assuming, without deciding, that Rassi damaged the property of the Elkhart
County Highway Department by gouging large ruts in the ditch, we agree with
Rassi that he did not have an opportunity to take reasonable steps to locate and
notify the Highway Department of the damage. Hartsough’s undisputed
testimony establishes that approximately five minutes (or less) elapsed between
Rassi driving his truck into a ditch and his apprehension by police outside
Hartsough’s home in the middle of the night. Under these circumstances, we
cannot conclude that Rassi had sufficient time to take reasonable steps to locate
and notify the owner of the damaged ditch. Consequently, we reverse his
conviction for leaving the scene of an accident.
1
Rassi did not assert below, and does not assert on appeal, that the charging information is
unconstitutionally vague.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 8 of 11
Section 3 – Rassi has failed to establish that his sentence for
OWI is inappropriate in light of the nature of the offense and
his character.
[13] Finally, Rassi asks us to reduce his sentence pursuant to Indiana Appellate Rule
7(B), which provides that we may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, we find that the sentence is
inappropriate in light of the nature of the offense and the character of the
offender. “Sentence review under Appellate Rule 7(B) is very deferential to the
trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[W]hen
reviewing a sentence, our principal role is to ‘leaven the outliers’ rather than
necessarily achieve what is perceived as the ‘correct’ result.” Id. (quoting
Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). “We do not look to
determine if the sentence was appropriate; instead we look to make sure the
sentence was not inappropriate.” Id. “Whether a sentence is inappropriate
ultimately turns on the culpability of the defendant, the severity of the crime,
the damage done to others, and a myriad of other factors that come to light in a
given case.” McFall v. State, 71 N.E.3d 383, 390 (Ind. Ct. App. 2017). “In
assessing whether a sentence is inappropriate, appellate courts may take into
account whether a portion of the sentence is ordered suspended or is otherwise
crafted using any of the variety of sentencing tools available to the trial judge.”
Id. The burden is on Rassi to persuade us that his sentence is inappropriate.
McFall, 71 N.E.3d at 390.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 9 of 11
[14] The maximum sentence for a class A misdemeanor is one year of
imprisonment. Ind. Code § 35-50-3-2.2 Rassi received a one-year sentence for
his class A misdemeanor conviction, but it was all suspended to probation.
Rassi argues that this offense was not especially egregious. We agree, and the
trial court’s imposition of a fully suspended sentence properly reflects the nature
of the offense.
[15] He further argues that his character merits a reduced sentence. “A defendant’s
life and conduct are illustrative of his or her character.” Morris v. State, 114
N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied (2019). “Even a minor
criminal record reflects poorly on a defendant’s character, and the significance
of the prior record varies based on the gravity, nature, and number of prior
offenses in relation to the current offense.” Id. (citation and quotation marks
omitted). Rassi, who was born in 1983, was convicted of class A misdemeanor
marijuana possession in 2002 and was sentenced to one year of probation; he
violated probation twice and received an unsatisfactory discharge. In 2006, he
was charged with class D felony marijuana possession; the trial court elected to
enter judgment of conviction as a class A misdemeanor and imposed a sentence
of one year “good behavior status[.]” Appellant’s App. Vol. 2 at 58. Rassi later
admitted to violating that status but ultimately received a satisfactory discharge
2
Contrary to the State’s suggestion, there are no advisory sentences for misdemeanors. Cf. Appellee’s Br. at
17 (“While Defendant was not sentenced to the advisory sentence on both counts ….”).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 10 of 11
from probation in March 2010. He was not charged with any other offenses
until this proceeding.
[16] Although Rassi apparently lived a law-abiding life for eight years after he was
discharged from probation, his prior substance-related encounters with the
criminal justice system reflect poorly on his character. Given his criminal
history and multiple probation violations, Rassi has not met his burden of
persuading us that his one-year suspended sentence is inappropriate in light of
the nature of the offenses or his character. Therefore, we affirm his sentence.
[17] Affirmed in part and reversed in part.
Baker, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019 Page 11 of 11