Anastacia Sanchez-Franco v. State of Indiana (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
court except for the purpose of establishing Feb 28 2017, 9:06 am
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
Jane Ann Noblitt Curtis T. Hill, Jr.
Columbus, Indiana Attorney General of Indiana
Angela N. Sanchez
Supervising Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Anastacia Sanchez-Franco, February 28, 2017
Appellant-Defendant, Court of Appeals Case No.
03A04-1610-CR-2279
v. Appeal from the Bartholomew
Superior Court
State of Indiana, The Honorable Kathleen Tighe
Appellee-Plaintiff. Coriden, Judge
Trial Court Cause No.
03D02-1507-CM-3281
Brown, Judge.
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[1] Anastacia Sanchez-Franco appeals her conviction for operating with a blood
alcohol content of .08 as a class C misdemeanor. Sanchez-Franco raises one
issue which we revise and restate as whether the trial court abused its discretion
in admitting into evidence the results of a breath test. We affirm.
Facts and Procedural History
[2] On June 14, 2015, Columbus Police Officer Maren Crabtree observed Sanchez-
Franco drive left of center over a double yellow line and initiated a traffic stop.
Officer Crabtree noticed the smell of an alcoholic beverage on Sanchez-Franco
and asked her if she had anything to drink. Sanchez-Franco replied that she
had had two drinks, Officer Crabtree administered three field sobriety tests
which Sanchez-Franco failed, and Sanchez-Franco agreed to take a breath test
and was transported to the police station. At the station, Officer Charles
Bernard Sims administered a certified breath test, and the results indicated that
Sanchez-Franco’s blood alcohol content was 0.099.
[3] On July 1, 2015, the State charged Sanchez-Franco with: Count I, operating
while intoxicated endangering a person as a class A misdemeanor; and Count
II, operating with an alcohol concentration equivalent of at least 0.08 as a class
C misdemeanor. The court held a suppression hearing on February 24, 2016.
Sanchez-Franco filed a memorandum in support of motion to suppress on
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March 7, 2016, the State filed a response on March 11, 2016, and the court
denied Sanchez-Franco’s motion to suppress on March 22, 2016. 1
[4] On May 25, 2016, the trial court held a bench trial at which the State presented
the testimony of Officers Crabtree and Sims. Officer Sims testified that he
administered a certified breath test, that at the time he was certified to do so,
and that he followed the standard procedures for that test. When asked the test
results, Sanchez-Franco’s counsel objected and argued: “I don’t think that the
foundation has been laid to be able to get any results in of this test. Specifically
they have to lay the foundation that he has been certified to (garbled) specific
instrument and I don’t know what instrument.” Transcript at 42. The
prosecutor presented State’s Exhibit 2, which contains a memorandum from the
State Department of Toxicology stating that the officers named in the document
are certified and recertified to administer evidentiary breath tests between
November 2013 and November 30, 2015, and Officer Sims’s name is included
in the list. The prosecutor also presented State’s Exhibit 3, which contains a
Certificate of Inspection and Compliance of Breath Test Instrument stating that
inspection of the instrument listed was performed, it was certified that the
instrument was in compliance with the standards of 260 IAC 2-3-2, the
inspection date was June 9, 2015, the instrument serial number was 010903,
1
The record does not contain a written motion to suppress. The transcript of the suppression hearing and
Sanchez-Franco’s memorandum reveal that she moved to suppress the evidence based on the Fourth
Amendment and Article 1, Section 11 of the Indiana Constitution and argued that Officer Crabtree
mistakenly believed that she committed a traffic violation.
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and that the agency was the Columbus Police Department. At the prosecutor’s
request, the court admitted State’s Exhibit 1 containing the instrument printout
showing the results of the breath test. The instrument printout provides:
Intox EC/IR-II: Subject Test
*****
Serial Number: 010903 Test Number: 211
Test Date: 06/14/2015 Test Time: 04:11 EDT
Operator Name: Sims, Charles B
Operator Certification Number: B115686
Agency Name: COLUMBUS POLICE DEPT
Observation Began: 06/14/2015 at 03:50
Observer Name: Sims, Charles B
Driver License Number: 0000000000
Subject Name: Sanchez, Anastacia F
Subject D.O.B.: 04/28/1976
*****
System Check: Passed
Test g/210L Time
BLK 0.000 4:12
CHK 0.079 4:13
BLK 0.000 4:14
SUBJ 0.103 4:16
BLK 0.000 4:18
SUBJ 0.099 4:19
BLK 0.000 4:21
CHK 0.078 4:21
BLK 0.000 4:23
Test Status Sample Complete
RESULT: 0.099 g/210L
4:19 EDT,
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6/14/2015
State’s Exhibit 1.
[5] Officer Sims testified that Sanchez-Franco removed gum from her mouth prior
to the start of the fifteen-minute observation period. He further testified that the
test takes two different samples from the subject, that it records the lower of the
two samples, and that in this case that result was 0.099. The court found
Sanchez-Franco not guilty on Count I and guilty on Count II and sentenced her
to sixty days, all suspended to probation.
Discussion
[6] The issue is whether the trial court abused its discretion in admitting into
evidence the results of the breath test. Generally, we review the trial court’s
ruling on the admission or exclusion of evidence for an abuse of discretion.
Roche v. State, 690 N.E.2d 1115, 1134 (Ind. 1997), reh’g denied. We reverse only
when the decision is clearly against the logic and effect of the facts and
circumstances. Joyner v. State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied.
We may affirm a trial court’s decision regarding the admission of evidence if it
is sustainable on any basis in the record. Barker v. State, 695 N.E.2d 925, 930
(Ind. 1998), reh’g denied. Even if the trial court’s decision was an abuse of
discretion, we will not reverse if the admission constituted harmless error. Fox
v. State, 717 N.E.2d 957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.
[7] Sanchez-Franco asserts that the State failed to establish the proper procedure
for administering the breath test set forth at 260 IAC 2-4-2 and failed to show
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that the test operator followed that procedure. She argues that the State gave
only cursory attention to Step One of the procedure and there was no testimony
regarding whether she had had anything to eat or drink or had smoked. The
State responds that Sanchez-Franco waived review of any deficiency in the
foundation that she did not raise in the trial court and that it provided an
adequate basis for the trial court to conclude that the standard procedure was
applied in this case.
[8] The Indiana Administrative Code, at 260 IAC 2-4-2, provides the approved
method for a breath analysis using the Intox EC/IR II breath test instrument.
We first note that Sanchez-Franco states in his appellant’s brief that he does not
challenge Officer Sims’s certification to operate the machine or the certification
of the instrument. With respect to her argument that the State failed to
establish the procedure for administering the breath test, we observe that she did
not raise that argument before the trial court and thus that argument is waived. 2
See Mullins v. State, 646 N.E.2d 40, 44 (Ind. 1995) (noting that the defendant
argued on appeal that the State offered no evidence of the approved procedure
for administering the breath test, that while the defendant objected to the
admission of the test results on other bases, he did not object on that basis at
2
When the prosecutor asked Officer Sims the result of the breath test, Sanchez-Franco’s counsel objected,
stating he did not think a foundation had been laid for the admission of the test results and asserting:
“Specifically they have to lay the foundation that he has been certified to (garbled) specific instrument and I
don’t know what instrument.” Transcript at 42. Sanchez-Franco did not specifically object on the ground
that the State did not establish the proper procedure for administering breath tests.
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trial, and that failure to state the specific basis for objection waives the issue on
appeal).
[9] Waiver notwithstanding, the Indiana Supreme Court has held that “the State
need not present any evidence of what the approved procedures for
administering a breath test are because regulations in the Administrative Code
prescribe those procedures and because those regulations are to be judicially
noticed.” Mullins, 646 N.E.2d at 46. See also Baran v. State, 639 N.E.2d 642,
647-648 (Ind. 1994) (holding that, “[b]ecause this was a bench trial and the
court was commanded by statute to take judicial notice that the breath testing
machines must measure blood alcohol content as a percentage of alcohol by
weight in the blood, the absence of notice was not reversible error”). We
conclude that the approved procedure for administering a breath test was
properly before the trial court and that, because this was a bench trial and the
court was required to take judicial notice of the regulation concerning breath
testing, the fact the court did not notify the parties it would take judicial notice
of the applicable procedure does not require reversal. See Mullins, 646 N.E.2d at
46 (holding that the regulation prescribing the proper procedure for
administering a breath test was properly before the court).
[10] Finally, with respect to whether Officer Sims followed the steps found at 260
IAC 2-4-2, we note that a verbatim recitation of the procedure in the regulation
is not required. See Baran, 639 N.E.2d at 646. The record establishes that the
State elicited testimony from Officer Sims that he administered the breath test
and that he followed the standard procedure for that test. When asked if he
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recalled the procedure or how he knew he followed it, Officer Sims answered “I
used the form that is provided there. I go down the list, follow the form using
standard operating procedures as called for.” Transcript at 46.
[11] As to Step One in particular, 260 IAC 2-4-2 provides in part:
STEP ONE: The person to be tested must:
(A) have had nothing to eat or drink;
(B) not have put any foreign substance into his or her
mouth or respiratory tract; and
(C) not smoke;
within fifteen (15) minutes before the time the first breath sample
is taken or at any time from the taking of the first breath sample
until after the taking of the final breath sample.
[12] Officer Sims indicated that part of the procedure is to check for any foreign
substances in the person’s mouth, and when asked if there were any, he testified
“I believe she had taken out some chewing gum prior to that and then we
waited the required fifteen minute waiting period.” Id. at 42. He later testified
that the procedure involved “basically observing the subject, making sure there
is nothing foreign in the mouth, checking physically,” “there’s a fifteen minute
waiting period after that, make sure nothing else goes in the mouth after that,”
and “[t]he time is logged when the test is started.” Id. at 46. When asked if the
gum was removed from Sanchez-Franco’s mouth “[r]ight before the exam,”
Officer Sims testified “(garbled) to ensure there is nothing in her mouth before
the test starts. So once her mouth is clear” and “[a]fter her mouth is cleared,
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the fifteen minute observation period will start.” Id. at 47. The instrument
printout showing the breath test results indicates that observation of Sanchez-
Franco began at 3:50, the first sample was taken over fifteen minutes later at
4:16, and the second sample was taken at 4:19.
[13] Further, Sanchez-Franco does not specifically identify which step or steps
following Step One that she believes Officer Sims did not perform. We note
that a number of the steps beyond Step One in 260 IAC 2-4-2 are primarily
administrative in nature, such as entering information into the test instrument, 3
and the fields contained in the instrument printout for Sanchez-Franco are
completed with the information referenced in those steps, indicating the
instrument operator entered the information as requested. Officer Sims testified
he followed the procedure, and the instrument printout identifies the instrument
used, states that a system check passed, indicates the name of Officer Sims and
his certification number as the operator, provides that the observation began at
3:50 on June 14, 2015, indicates that Officer Sims was the test observer,
identifies Sanchez-Franco as the subject and states her date of birth, and
provides that the result of the second breath test sample was 0.099 grams of
3
Steps Two and Three involve verifying the instrument is in ready mode and pressing enter to start the test;
Step Four is inserting an identification card and entering the information of the breath test operator; Step
Five is entering the beginning date and time of the fifteen-minute observation period; Steps Six and Seven
involve entering the information of the officer with control of the subject during the fifteen-minute period;
Step Eight is to enter incident information requested by the instrument display; Step Nine is entering subject
information by inserting the subject’s driver or identification card or entering information requested by the
instrument display; Step Ten is placing a new mouthpiece in the breath tube, instructing the subject to deliver
a breath sample, and removing the mouthpiece when prompted; Step Eleven is again having the subject
deliver a breath sample; and Step Twelve is printing the instrument report and removing it from the printer.
See 260 IAC 2-4-2.
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alcohol per 210 liters of breath at 4:19 on June 14, 2015. The record does not
reveal that Officer Sims did not follow the required steps of the procedure or
indicate anything that calls into question the reliability of the instrument or the
instrument printout. There was sufficient evidence from which the trial court
could have concluded that Officer Sims properly performed each step of the
procedure. See Baran, 639 N.E.2d at 646 (concluding there was sufficient
evidence from which the trial court could have concluded that the trooper
properly performed each step of the procedure).
[14] Based upon the record, we cannot say that the State did not establish that
Officer Sims followed the applicable procedure in administering the breath test
or that the trial court abused its discretion in admitting the breath test results.
Conclusion
[15] For the foregoing reasons, we affirm Sanchez-Franco’s conviction for operating
with a blood alcohol content of .08 as a Class C misdemeanor.
[16] Affirmed.
Vaidik, C.J., and Bradford, J., concur.
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