State of Indiana v. Kevin Ford (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Oct 20 2016, 9:05 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT
Gregory F. Zoeller
Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
State of Indiana, October 20, 2016
Appellant-Plaintiff, Court of Appeals Case No.
10A05-1604-CR-820
v. Appeal from the Clark Circuit
Court
Kevin Ford, The Honorable Joseph P. Weber,
Appellee-Defendant. Judge
Trial Court Cause No.
10C03-1602-F6-209
Barnes, Judge.
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Case Summary
[1] The State appeals the trial court’s dismissal of its charging information against
Kevin Ford for Level 6 felony operating a vehicle as an habitual traffic violator
(“HTV”). We reverse and remand.
Issue
[2] The sole issue before us is whether the trial court erred in dismissing the
information based on a purported lack of probable cause.
Facts
[3] The probable cause affidavit in this case, submitted by Officer Joe Baker of the
Charlestown Police Department, stated that on January 28, 2016, Officer Baker
was conducting traffic control when he noticed a red Chevrolet HHR with a
partially obscured license plate drive past. Officer Baker noted that the vehicle
was being driven by a white male; he did not see any other occupants at that
time. Officer Baker followed the vehicle to a gas station so that he could get a
better look at the license plate. After arriving at the gas station, Officer Baker
saw a white male with a tattoo on the left side of his neck exit the driver’s side
door. Officer Baker obtained the license plate information, then left the gas
station to set up a radar traffic control area.
[4] Minutes later, Officer Baker saw the same red Chevrolet HHR drive past, and
he decided to follow it. When he observed the vehicle switch lanes without
signaling, he initiated a traffic stop. Stephanie Littrell was driving the vehicle at
this time and Ford, whom Officer Baker recognized from having seen him
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driving earlier and at the gas station, was in the front passenger seat. Officer
Baker then ran Ford’s driver’s license information, learned that Ford was an
HTV, took him into custody, and drove him to the police station. At the
station, Ford admitted that he had been driving earlier and had been trying to
get to a methadone clinic before it closed.
[5] The State charged Ford with Level 6 felony operating a vehicle as an HTV.
Ford filed a “Motion for Probable Cause Hearing,” asserting that Officer Baker
did not have probable cause to arrest him. App. p. 16. The trial court
conducted a hearing on this motion, at which Officer Baker and Littrell
testified. Officer Baker described the events leading up to and after Ford’s
arrest, providing additional detail that was not in the probable cause affidavit.
Officer Baker also testified that during “open conversation” at the police
station, Ford said, “I f’d up . . . I screwed up, I shouldn’t have been driving . . .
.” Tr. p. 46. After the trial court asked whether Ford had been Mirandized at
that time and Officer Baker said he had not, the trial court stated, “Well I don’t
care what he said then. It’s not going to be able to come in.” Id. at 47. Littrell
testified that she was Ford’s girlfriend and had been driving the entire time on
January 28, 2016. After the hearing, the trial court entered an order finding
there was no probable cause for Ford’s arrest or the charge against him and
dismissing the case without prejudice. The State now appeals.
Analysis
[6] We first note that Ford has not filed an appellee’s brief in this case. It was
Ford’s obligation as appellee to controvert arguments presented by the State.
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See Mateyko v. State, 901 N.E.2d 554, 557 (Ind. Ct. App. 2009), trans. denied.
When an appellee does not submit a brief, we may reverse if the appellant
presents a prima facie case of error, which is error at first sight or appearance.
Id. “We are nevertheless obligated to correctly apply the law to the facts of the
record to determine if reversal is required.” Id.
[7] We review a trial court’s dismissal of a charging information for an abuse of
discretion. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). A trial
court abuses its discretion in a ruling if it is clearly against the logic and effect of
the facts and circumstances before it, or if it misinterprets or misapplies the law.
Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 2013).
[8] Indiana Code Section 35-34-1-4 lists eleven possible grounds for dismissing a
charging information. A lack of probable cause is not one of those grounds.
Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000). Rather, it is axiomatic that,
“[a] pretrial motion to dismiss directed to the insufficiency of the evidence is
improper, and a trial court errs when it grants such a motion.” State v. Helton,
837 N.E.2d 1040, 1041 (Ind. Ct. App. 2005). The sufficiency of a charging
information generally is tested by taking the facts alleged in the information as
true. Isaacs, 794 N.E.2d at 1122. “Questions of fact to be decided at trial or
facts constituting a defense are not properly raised by a motion to dismiss.” Id.
If, indeed, probable cause is found to be lacking for an arrest, it is relevant only
to the defendant’s pretrial detention or the admissibility of evidence recovered
incident to the arrest. Flowers, 738 N.E.2d at 1055.
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[9] Here, the trial court essentially granted Ford a pretrial mini-trial and ruled that
there was insufficient evidence to charge Ford. That was improper, and it was
an abuse of discretion to dismiss the case for this reason. Clearly, the trial court
was required to weigh evidence and judge witness credibility in order to rule in
Ford’s favor. Those were matters to be decided at trial. See Isaacs, 794 N.E.2d
at 1122-23 (holding defendant’s alleged statutory defense to charge was a matter
to be decided at trial).
[10] We further note that the trial court seems to have sua sponte suppressed Ford’s
admission to Officer Baker that he had been driving because he had not yet
been Mirandized. We conclude the trial court jumped the gun in doing so.
Miranda only requires suppression of unwarned statements that are made in
custody in response to “interrogation,” which includes express questioning or
words or actions on the part of police that the police know are reasonably likely
to elicit an incriminating response. White v. State, 772 N.E.2d 408, 412 (Ind.
2002). “Volunteered statements do not amount to interrogation.” Id. Officer
Baker’s testimony that Ford made his admissions during “open conversation” is
far from conclusive proof that the admissions were made in response to
interrogation as opposed to being volunteered. Tr. p. 46.
Conclusion
[11] The trial court abused its discretion in dismissing the State’s case against Ford
for an alleged lack of probable cause. It also acted prematurely in deciding that
Ford’s admissions to Officer Baker should be suppressed. We reverse the
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dismissal of the charging information and remand for further proceedings
consistent with this opinion.
Reversed and remanded.
Riley, J., and Bailey, concur.
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