David L. Lacey v. State of Indiana ( 2012 )

Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Jul 05 2012, 9:11 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
C. ROBERT RITTMAN GREGORY F. ZOELLER
Grant County Public Defender Attorney General of Indiana
Marion, Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DAVID L. LACEY, )
)
Appellant-Defendant, )
)
vs. ) No. 27A02-1109-CR-846
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE GRANT CIRCUIT COURT
The Honorable Mark E. Spitzer, Judge
Cause No. 27C01-1105-FC-284
July 5, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge
STATEMENT OF THE CASE
David Lacey appeals his conviction and sentence for operating a motor vehicle
while privileges are forfeited for life, a class C felony.1
We affirm.
ISSUES
1. Whether the trial court abused its discretion in refusing a
tendered jury instruction.
2. Whether Lacey’s sentence is inappropriate pursuant to
Indiana Appellate Rule 7(B).
FACTS
On the night of May 28, 2011, on-duty Marion Police Officer Kyle Griffith
stopped at a stoplight behind Lacey’s vehicle. Lacey’s music was so loud that Officer
Griffith’s windows were vibrating; he could not hear his police radio; and his “rearview
mirror was vibrating so violently, the cars behind [him] were blurry.” (Tr. 23). Officer
Griffith therefore initiated a traffic stop. Officer Griffith twice “had to tell [Lacey] to
turn the music down [be]cause [he] could not hear” Lacey. (Tr. 24).
When Officer Griffith requested Lacey’s driver’s license, Lacey told him that he
had “left it at home.” (Tr. 25). Officer Griffith therefore gave dispatch Lacey’s
information to “check his driving status . . . .” (Tr. 25). Dispatch informed Officer
Griffith that Lacey was an “habitual traffic violator for life,” which Officer Griffith
verified through a print out from the Bureau of Motor Vehicles. (Tr. 25). Accordingly,
1
Ind. Code § 9-30-10-17.
2
Officer Griffith had Lacey step out of his vehicle and placed Lacey under arrest. After
Lacey informed Officer Griffith that he had a knife on his person, Officer Griffith
removed a switchblade from Lacey’s pocket. Officer Griffith also administered a field
sobriety test and performed a breath test after observing an open container of alcohol in
Lacey’s vehicle. After placing Lacey in his police vehicle, Officer Griffith searched
Lacey’s vehicle, whereupon he discovered approximately one gram of marijuana in the
glove compartment.
At no time did Lacey inform Officer Griffith that he was having a medical
emergency or that he needed medical attention. Prior to transferring custody of Lacey to
the Grant County Jail staff, Officer Griffith had to ask Lacey several standard questions.
In response to the questions, Lacey indicated that he did not “need medical attention
now[.]” (State’s Ex. 5). Upon taking custody of Lacey, Grant County Sheriff’s Deputy
Brian Williams screened Lacey for medical problems by observing Lacey and asking
Lacey a series of questions. Deputy Williams did not observe any medical problems and
checked that Lacey responded “no” to the question, “Do you require immediate medical
attention?” (State’s Ex. 6). At no time did Lacey inform Deputy Williams that he was
having chest pains or experiencing a medical emergency.
On May 31, 2011, the State charged Lacey with Count 1, class C felony operating
a motor vehicle while privileges are forfeited for life; Count 2, class A misdemeanor
possession of marijuana; and Count 3, class B misdemeanor possession of a knife with a
blade that opens automatically. On August 4, 2011, the State and Lacey filed a
3
stipulation, whereby they stipulated that Lacey was driving a motor vehicle on May 28,
2011; Lacey’s driver’s license had been suspended for life on or about May 29, 1998; and
that Lacey “knew his license was suspended for life when he drove the vehicle on May
23, 2011.” (App. 27).
The trial court held a jury trial on August 8, 2011. Lacey testified that he had been
diagnosed with blocked arteries in March of 2011 and was on heart medication. He
further testified that on the night of May 28, 2011, he was home when he began
experiencing chest pains. He therefore asked his stepdaughter to drive him to the
hospital; however, she refused because she did not want to wake her four-year-old son.
Lacey testified that he drove himself in his stepdaughter’s vehicle.
According to Lacey’s testimony, he informed Officer Griffith that he “was on [his]
way to Marion General” and was “having chest pains.” (Tr. 73). Officer Griffith then
asked Lacey to lower the music’s volume. Lacey complied but did not repeat his
concerns regarding his chest pains. Lacey testified that he later informed Deputy
Williams that he was having chest pains and “probably needed to go to Marion General.”
(Tr. 74).
Lacey’s stepdaughter also testified. She testified that Lacey had asked to borrow
her car the night of May 28, 2011, but did not tell her that he “was having chest pains or
that he was having a medical problem or thought he was having a heart attack[.]” (Tr.
92). The jury found Lacey guilty on all counts.
4
The trial court ordered a pre-sentence investigation report (“PSI”) and held a
sentencing hearing on September 2, 2011. According to the PSI, Lacey had had
numerous convictions over a period of thirty years, including eleven felony convictions
and eight misdemeanor convictions. Lacey’s prior criminal history included four
convictions for driving while intoxicated; one conviction for operating a motor vehicle
without a valid license; and a conviction for driving with a suspended license. The PSI
further showed that Lacey had violated probation on six occasions. After considering
aggravating and mitigating circumstances and finding that the aggravators outweighed
the mitigators, the trial court sentenced Lacey to concurrent sentences of eight years on
Count 1, one year on Count 2, and 180 days on Count 3.
DECISION
1. Jury Instructions
Lacey asserts that the trial court abused its discretion in refusing his tendered jury
instruction on extreme emergency.
“The purpose of an instruction is to inform the jury of the law
applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.”
“Instruction of the jury is generally within the discretion of the trial court
and is reviewed only for an abuse of that discretion.” “In reviewing a trial
court’s decision to give or refuse tendered jury instructions,” this Court
“considers: (1) whether the instruction correctly states the law; (2) whether
there is evidence in the record to support the giving of the instruction; and
(3) whether the substance of the tendered instruction is covered by other
instructions which are given.”
5
Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005) (internal citations omitted),
trans. denied.
Before a defendant is entitled to a reversal, he must affirmatively
show that the instructional error prejudiced his substantial rights. “Errors in
the giving or refusing of instructions are harmless where a conviction is
clearly sustained by the evidence and the instruction would not likely have
impacted the jury’s verdict.” An instruction error will result in reversal
“when we cannot say with complete confidence that a reasonable jury
would have rendered a guilty verdict had the instruction been given.”
Filice v. State, 886 N.E.2d 24, 37 (Ind. Ct. App. 2008) (internal citations omitted), trans.
denied.
Regarding the defense of “extreme emergency,” the trial court instructed the jury
as follows:
It is a defense to Count 1 that the operation of a motor vehicle was
necessary to save life or limb, in an extreme emergency. The Defendant
must bear the burden of proof by a preponderance of the evidence to
establish this defense.
A “preponderance of the evidence” means the greater weight of the
evidence. Evidence is of the greater weight if it convinces you most
strongly of its truthfulness. In other words, it is evidence that convinces
you that a fact is more probably true than not true.
A greater number of witnesses testifying to a fact on one side or a
greater quantity of evidence introduced on one side does not necessarily
amount to the greater weight of the evidence.
(App. 20).
The trial court refused Lacey’s tendered instruction on “extreme emergency.”
That instruction read as follows:
6
Indiana law does not specifically define the term “extreme
emergency.” If you find after consideration of all the circumstances of this
case, that David Lacey reasonably believed that he was at risk to either die,
or to suffer serious physical impairment, had he not operated the motor
vehicle, then he will have met his burden to establish his defense.
(App. 26).
Lacey argues that the tendered instruction was necessary to “adequately cover the
issue as to whether [he] reasonably believed he was dealing with an extreme emergency.”
Lacey’s Br. at 5. We disagree.
Indiana Code section 9-30-10-18 provides that in a criminal action brought under
section 17 of chapter 10, “it is a defense that the operation of a motor vehicle or
motorized bicycle was necessary to save life or limb in an extreme emergency. The
defendant must bear the burden of proof by a preponderance of the evidence to establish
this defense.” The determination of whether a defendant has proven that the operation of
the car was necessary is a question of fact. Cain v. State, 844 N.E.2d 1063, 1066 (Ind.
Ct. App. 2006).
Where, as here, a statute is clear and unambiguous on its face, we may not
interpret the statute. Shrum v. State, 664 N.E.2d 1180, 1183 (Ind. Ct. App. 1996)
(discussing Indiana Code section 9-30-10-18). Rather, the words are to be given their
ordinary and plain meaning. Id.Furthermore, “where terms are in general use and can be understood by a person
of ordinary intelligence, they need not be defined” by jury instructions. Roche v. State,
690 N.E.2d 1115, 1128 (Ind. 1997). Only terms that have a technical meaning or may be
7
misapplied by the jury should be defined by the trial court’s instructions. See McNary v.
State, 428 N.E.2d 1248, 1251 (Ind. 1981). Like the terms “malice” or “in sudden heat,”
the term “extreme emergency” neither has a technical meaning nor is one that may be
misapplied or misunderstood by the jury. See, e.g., McFarland v. State, 271 Ind. 105,
390 N.E.2d 989, 994 (1979).
Here, the trial court’s given instruction adequately instructed the jury as to the
defense of “extreme emergency,” and there is no evidence that the jury in this case
misapplied the term “extreme emergency.” Thus, we find no abuse of discretion in
refusing to give Lacey’s tendered instruction.
Moreover, we note that the evidence overwhelmingly supports the jury’s verdict,
and a reasonable jury would have rendered a guilty verdict on the count of operating a
motor vehicle while privileges are forfeited for life even if Lacey’s tendered instruction
had been given. Accordingly, any error, if error at all, in the trial court’s refusal of
Lacey’s tendered instructions is harmless and does not require reversal. See Williams v.
State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008) (finding harmless error in refusing the
tendered instructions where the evidence clearly supported the convictions).
2. Sentence
Lacey asserts that his sentence is inappropriate. We may revise a sentence if it is
inappropriate in light of the nature of the offense and the character of the offender. Ind.
Appellate Rule 7(B). It is the defendant’s burden to “‘persuade the appellate court that
his or her sentence has met th[e] inappropriateness standard of review.’” Anglemyer v.
8
State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)
(quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).
In determining whether a sentence is inappropriate, the advisory sentence “is the
starting point the Legislature has selected as an appropriate sentence for the crime
committed.” Childress, 848 N.E.2d at 1081. Indiana Code section 35-50-2-6 provides
that a person who commits a class C felony “shall be imprisoned for a fixed term of
between two (2) and eight (8) years, with the advisory sentence being four (4) years.”
Thus, Lacey received the maximum sentence.
Here, Lacey argues that his sentence of eight years for operating a motor vehicle
while privileges are forfeited for life is inappropriate in light of his character, namely
because it is a “victimless crime and a non-violent crime.” Lacey’s Br. at 7. While this
may be true, the record shows that Lacey has an extensive criminal history spanning
thirty years, including several traffic offenses. Given Lacey’s criminal history of
convictions and probation violations, it is clear that he has a disregard for the law. We
therefore cannot say that his sentence of eight years in the Department of Correction is
inappropriate.
Affirmed.
NAJAM, J., and RILEY, J., concur.
9