Marc Lindsey v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
FILED
this Memorandum Decision shall not be Sep 12 2016, 8:42 am
regarded as precedent or cited before any CLERK
Indiana Supreme Court
court except for the purpose of establishing Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Nancy E. McCaslin Gregory F. Zoeller
McCaslin & McCaslin Attorney General of Indiana
Elkhart, Indiana
Chandra K. Hein
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Marc Lindsey, September 12, 2016
Appellant-Defendant, Court of Appeals Case No.
20A03-1508-CR-1086
v. Appeal from the Elkhart Superior
Court
State of Indiana, The Honorable David C.
Appellee-Plaintiff. Bonfiglio, Judge
Trial Court Cause No.
20D06-1210-FD-1224
May, Judge.
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[1] Marc Lindsey appeals his conviction of Class D felony operating a vehicle
while intoxicated. 1 He presents five issues for our review which we restate as:
1. Whether the prosecutor committed misconduct during closing
argument;
2. Whether the trial court properly instructed the jury regarding
the element of endangerment;
3. Whether the State presented sufficient evidence Lindsey
committed Class D felony operating a vehicle while intoxicated; 2
4. Whether the trial court erred when it delayed Lindsey’s
sentencing past the thirty-day statutory limit; and
5. Whether Lindsey’s trial counsel was ineffective.
We affirm.
Facts and Procedural History
[2] On October 11, 2012, Officer Evan Witt initiated a traffic stop after he observed
Lindsey exceeding the speed limit. Lindsey pulled into a nearby driveway and
began to exit the vehicle. Officer Witt told Lindsey to stay in the vehicle.
1
Ind. Code § 9-30-5-3(1) (2008).
2
The trial court also convicted Lindsey of Class A misdemeanor driving while suspended. He does not
challenge that conviction.
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Lindsey again attempted to exit the vehicle, and Officer Witt again told Lindsey
to remain in the vehicle.
[3] When Officer Witt approached Lindsey’s vehicle, he noticed Lindsey “was
fumbling as he [was] putting the keys back in the ignition” so he could roll
down the window. (Tr. at 108.) Once Lindsey rolled down the window,
Officer Witt noticed a heavy odor of alcoholic beverage and Lindsey’s glassy
and bloodshot eyes. Officer Witt told Lindsey he had observed Lindsey
speeding, and Lindsey indicated his license was suspended and asked Officer
Witt not to give him a speeding ticket. Officer Witt noticed Lindsey’s speech
was slurred.
[4] Officer Witt then asked Lindsey to complete three standard field sobriety tests
and Lindsey failed all three. Officer Witt asked Lindsey to take a Certified
Chemical Test and Lindsey refused. Lindsey was arrested and transported to
jail, where he again refused to take a Certified Chemical Test.
[5] On October 15, 2012, the State charged Lindsey with Class A misdemeanor
operating a vehicle while intoxicated, Class A misdemeanor operating a vehicle
while suspended, and Class D felony operating a vehicle while intoxicated,
which is an enhancement of the misdemeanor charge based on Lindsey’s prior
conviction of driving while intoxicated. 3 On June 1, 2015, a jury returned a
guilty verdict on all charges. The trial court merged the two operating a vehicle
3
Ind. Code § 9-30-5-2(b).
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while intoxicated verdicts and entered convictions of Class D felony driving
while intoxicated and Class A misdemeanor operating while suspended. On
July 15, 2015, the trial court sentenced Lindsey to three years for the Class D
felony and one year for the Class A misdemeanor, to be served concurrently.
Discussion and Decision
I. Prosecutorial Misconduct
[6] Our standard of review regarding alleged prosecutorial misconduct is well-
settled:
In reviewing a claim of prosecutorial misconduct properly raised
in the trial court, we determine (1) whether misconduct occurred,
and if so, (2) “whether the misconduct, under all of the
circumstances, placed the defendant in a position of grave peril to
which he or she would not have been subjected” otherwise.
Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006), quoted in Castillo
v. State, 974 N.E.2d 458, 468 (Ind. 2012). A prosecutor has the
duty to present a persuasive final argument and thus placing a
defendant in grave peril, by itself, is not misconduct. Mahla v.
State, 496 N.E.2d 568, 572 (Ind. 1986). “Whether a prosecutor’s
argument constitutes misconduct is measured by reference to
case law and the Rules of Professional Conduct. The gravity of
peril is measured by the probable persuasive effect of the
misconduct on the jury’s decision rather than the degree of
impropriety of the conduct.” Cooper, 854 N.E.2d at 835
(emphasis added) (citations omitted). To preserve a claim of
prosecutorial misconduct, the defendant must - at the time the
alleged misconduct occurs - request an admonishment [sic] to the
jury, and if further relief is desired, move for a mistrial. Id.
Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014), reh’g denied.
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[7] Though he objected to one of the prosecutor’s statements during closing
arguments, Lindsey did not request an admonition or move for a mistrial.
Thus, Lindsey failed to preserve his claim of prosecutorial misconduct and must
establish fundamental error. See id. at 667-68. Error is fundamental when it so
blatantly violates basic elementary principles that its harm or potential for harm
is inescapable, and the prejudicial effect of the violation is such that the
defendant’s right to a fair trial is eviscerated. Id. at 668. The defendant carries
a heavy burden in demonstrating fundamental error. Id.
[8] Lindsey asserts prosecutorial misconduct based on two statements during
closing argument. Lindsey objected to the first:
[State]: . . . Refusal to take this [breath test] will result in
your license being suspended for at least one year.
You heard, you heard Officer Witt testify, you
heard Officer Witt read that from memory. That’s
because he reads it a lot. He memorizes it. When
you’ve done something a hundred plus times, it
sticks in your head. So you ask yourself, why didn’t
he take the test?
[Lindsey]: Objection, your Honor. That is improper.
[Court]: I think the law allows it to be admitted into
evidence that --
[Lindsey]: He has the right to refuse.
[Court]: But the law says it can be admitted into evidence so
counsel can argue what it means.
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[Lindsey]: Thank you, your Honor.
[State]: So why didn’t he take the test? Because he knew he
was intoxicated. So he would rather take the
lengthy, an additional lengthy suspension on his
license rather than take that test and prove the
inevitable. In opening statement the defense said
that he didn’t take that breath test because he didn’t
want to be railroaded. And, again, I suggest to you,
he didn’t take that test, not because he didn’t want
to be railroaded, because he knew he was
intoxicated.
(Tr. at 191-2.) Lindsey did not object to the second statement:
[State]: And as jurors you can use your common sense what
reason would Mr. Lindsey have to refuse to take
that test if he wasn’t intoxicated. Why would be
[sic], for lack of a better word, why would he eat a
one year license suspension if he wasn’t afraid of the
results?
If it was true that the Field Sobriety Tests were all
incorrect, that he has a medical condition that
validate [sic] those results, that he didn’t have
anything to drink. That is [sic] was Listerine on his
breath that the officer smelled, that his red eyes
were a result of being tired, that driving 62 in a 35
mph zone, if all those weren’t evidence of
intoxication, weren’t evidence of impairment, he
could have solved that very easily that day by just
blowing into a Certified Breath Test, and if what he
was saying was true it would have read .00.
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But instead he said, nope, I’m not going to do that.
I’m going to eat a one year driver’s license
suspension and like I said, you can use your
common sense. He did that because he knew what
the results would be. That’s why that, the fact right
there is the strongest part of our case. I’m not
telling you the defendant was (Inaudible.) [sic] it’s
not just me. It’s not just the [S]tate. It’s not just
Patrolman Witt. Even the defendant on that date
knew he was operating while intoxicated and he
didn’t want to give us the evidence and that’s why
[he] refused.
(Id. at 206-7.)
[9] The United States Supreme Court’s holding Doyle v. Ohio, 426 U.S. 610, 619
(1976), prohibits the prosecution from commenting on a defendant’s post-arrest
silence. Lindsey argues the State’s comments regarding his refusal to take a
Certified Chemical Test contravened the holding in Doyle. However, Lindsey’s
Doyle argument is misplaced, as the prosecutor’s comments targeted not
Lindsey’s post-arrest silence but his refusal to take a Certified Chemical Test.
Refusal to submit to such a test is admissible into evidence under Ind. Code § 9-
30-6-3. It is well settled parties may discuss “any argument as to position or
conclusions based on the attorney’s analysis of the evidence.” Taylor v. State,
457 N.E.2d 594, 599 (Ind. Ct. App. 1983). Lindsey’s refusal to take the
chemical test was properly in evidence, and the statements during closing
argument were the State’s commentary on the evidence before the jury.
Additionally, the trial court instructed the jury, “[s]tatements made by the
attorneys are not evidence.” (App. at 145.) As the statements were proper and
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Lindsey did not show the statements put him in grave peril of receiving an
unfair trial, we cannot find fundamental error. 4 Cf. Ryan, 9 N.E.3d at 668
(fundamental error exists when defendant demonstrates error put him in grave
peril of an unfair trial).
II. Jury Instruction Regarding Endangerment
[10] Our standard of review regarding the trial court’s decision on jury instructions
is well-settled:
The purpose of jury instructions 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. In reviewing a trial court’s decision to give a
tendered jury instruction, we consider (1) whether the instruction
correctly states the law, (2) is supported by the evidence in the
record, and (3) is not covered in substance by other instructions.
The trial court has discretion in instructing the jury, and we will
reverse only when the instructions amount to an abuse of
discretion. To constitute an abuse of discretion, the instructions
given must be erroneous, and the instructions taken as a whole
must misstate the law or otherwise mislead the jury. We will
4
Lindsey also claims the statements shifted the burden of proof to him to prove why he did not take the
Certified Chemical Test. However, Lindsey did not develop an argument or cite case law to support his bald
assertions. Therefore, the issue is waived for failure to make a cogent argument. See Ind. App. Rule
46(A)(8)(a) (assertions on appeal must be supported by cogent argument); see also Matheney v. State, 688
N.E.2d 883, 907 (Ind. 1997) (failure to make cogent argument waives issue on appeal), reh’g denied, cert.
denied. Waiver notwithstanding, Lindsey’s argument seems to be his attempt to demonstrate the prejudice
required for our Court to find fundamental error in the prosecutor’s comments. See Ryan, 9 N.E.3d at 668
(fundamental error exists when the error is so prejudicial that it eviscerates the defendant’s right to a fair
trial). As we hold the statements at issue were proper comments on the admissible evidence, we need not
consider their alleged prejudicial effect. See Hancock v. State, 737 N.E.2d 791, 798 (Ind. Ct. App. 2000)
(prosecutor’s statement regarding the evidence was not prosecutorial misconduct and thus not fundamental
error).
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consider jury instructions as a whole and in reference to each
other, not in isolation.
Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “A defendant is only
entitled to reversal if he affirmatively demonstrates that the instructional error
prejudiced his substantial rights.” Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct.
App. 2002), trans. denied.
[11] The trial court proposed the following instruction regarding the definition of the
word “endangerment” as an element of Ind. Code § 9-30-5-2(b):
DEFINITION “TO ENDANGER A PERSON”
Endangerment can be established by showing that the
defendant’s condition or operating manner could have
endangered any person, including the public, the police, or the
defendant. Endangerment does not require that a person other
than the defendant was in the path of the defendant’s vehicle or
in the same area. The evidence must include more than a mere
showing of intoxication.
(App. at 110) (capitalization in original). Lindsey objected:
[Lindsey]: . . . My quarrel with it is the heading. Definition:
To Endanger a Person. It’s really not defining endangerment in
any way. It says endangering can be established by showing the
defendant’s condition or operating manner could have
endangered, using the same word, any person, including the
public, etc. It goes on to say what the requirements are. That it’s
not required other than defendant was in the path of defendant’s,
it doesn’t require somebody in the path of the vehicle and it has
to be more than a mere showing. All of that I believe is a correct
statement of the law, but it is not a definition and I think that just
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really misleads the jury into thinking that if they, um, it’s kind of
like a circular argument that if they find that, they don’t have to
find that there was somebody actually injured that there, there
was a path were [sic] somebody was in the path of defendant’s
vehicle, etc. that they’re off the hook on endangerment, but I
really think that there is a word named endangerment that has an
actual definition and that is not the definition of it.
(Tr. at 82.)
[12] On appeal, Lindsey argues the trial court abused its discretion when it gave the
endangerment instruction because it was “incomplete and, could have misled
the jury, and, therefore, did not correctly state the law.” (Br. of Appellant at
14.) However, Lindsey conceded during trial, “[a]ll of that I believe is a correct
statement of law.” (Tr. at 82.) Thus, Lindsey cannot now argue the instruction
is an incorrect statement of law. See Meriweather v. State, 984 N.E.2d 1259, 1263
(Ind. Ct. App. 2013) (appellant cannot present one argument at trial and a
different argument on appeal), trans. denied.
[13] Furthermore, contrary to Lindsey’s assertion, the instruction is an accurate
legal explanation of “endangerment” as used in Ind. Code § 9-30-5-2(b):
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. Staley v. State, 895 N.E.2d 1245, 1249
(Ind. Ct. App. 2008) (citing Blinn v. State, 677 N.E.2d 51, 54 (Ind.
Ct. App. 1997)). Endangerment does not require that a person
other than the defendant be in the path of the defendant’s vehicle
or in the same area to obtain a conviction. Id. at 1251 (citing
State v. Krohn, 521 N.E.2d 374, 377 (Ind. Ct. App. 1988)). . . . By
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definition the statute requires more than intoxication to prove
endangerment.
Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied.
The instruction was an accurate statement of law and thus the trial court did
not abuse its discretion when it denied Lindsey’s request to change it.
III. Sufficiency of the Evidence
[14] When reviewing the sufficiency of the evidence to support a conviction, we
consider only the probative evidence and reasonable inferences supporting the
trial court’s decision. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is the
fact-finder’s role, and not ours, to assess witness credibility and weigh the
evidence to determine whether it is sufficient to support a conviction. Id. To
preserve this structure, when we are confronted with conflicting evidence, we
consider it most favorably to the trial court’s ruling. Id. We affirm a conviction
unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence; rather, the evidence is
sufficient if an inference reasonably may be drawn from it to support the
factfinder’s decision. Id. at 147.
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[15] To prove Lindsey committed Class A misdemeanor 5 operating a vehicle while
intoxicated endangering a person, the State had to present sufficient evidence he
operated a vehicle while intoxicated “in a manner that endangers a person.”
Ind. Code § 9-30-5-2(b). The statute defines “intoxicated” as “under the
influence of . . . (1) alcohol . . . so that there is an impaired condition of thought
and action and the loss of normal control of a person’s faculties.” Ind. Code §
9-13-2-86.
[16] Impairment can be proven based on evidence of: “(1) the consumption of a
significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or
bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6)
failure of field sobriety tests; and (7) slurred speech.” Vanderlinden, 918 N.E.2d
at 644. The State presented evidence Lindsey was impaired. Officer Witt
testified Lindsey fumbled to get his keys in the ignition of his vehicle, he
smelled of alcohol, and he had bloodshot and glassy eyes. Lindsey failed three
Standard Field Sobriety Tests. Lindsey’s alternative explanations for his
condition are invitations for us to reweigh the evidence and judge the credibility
of witnesses, which we cannot do. See Drane, 867 N.E.2d at 146 (appellate
court cannot reweigh the evidence or judge the credibility of witnesses).
5
The conviction of driving while intoxicated in a manner that endangers a person was entered as a Class D
felony based on Lindsey’s prior conviction of driving while intoxicated. Lindsey does not challenge the prior
conviction.
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[17] To prove Lindsey was intoxicated “in a manner that endanger[ed] a person,”
Ind. Code § 9-30-5-2(b), the State had to present evidence “showing that the
defendant’s condition or operating manner could have endangered any person,
including the public, the police, or the defendant.” See Vanderlinden, 918
N.E.2d at 644. Endangerment does not require “a person other than the
defendant be in the path of the defendant’s vehicle or in the same area to obtain
a conviction.” Id. at 644-5. While intoxication alone is not enough to prove
the endangerment element, the evidence is sufficient to prove a person was
intoxicated in a manner that endangers another if the person is exceeding the
speed limit. Id. at 646.
[18] Officer Witt testified he stopped Lindsey after he saw Lindsey traveling sixty-
two miles per hour in a thirty-five miles per hour zone. There was evidence
Lindsey operated his vehicle in a manner that endangered a person under Ind.
Code § 9-30-5-2(b). Lindsey’s argument regarding the lack of physical evidence
to corroborate Officer Witt’s testimony is an invitation for us to reweigh the
evidence and judge the credibility of witnesses, which we cannot do. See Drane,
867 N.E.2d at 146 (appellate court cannot reweigh the evidence or judge the
credibility of witnesses).
IV. Delay in Sentencing
[19] “Upon entering a conviction, the court shall set a date for sentencing within
thirty (30) days, unless for good cause shown an extension is granted.” Ind.
Code § 35-38-1-2(b). The sentencing court is excused from the thirty-day
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sentencing requirement where there is good cause for delay. Vandergriff v. State,
653 N.E.2d 1053, 1053 (Ind. Ct. App. 1995). Good cause is “presumed where
the record is silent as to the reason for the delay and the defendant made no
objection.” Id.
[20] On June 1, 2015, a jury found Lindsey guilty as charged and the trial court
entered convictions of Class A misdemeanor driving while suspended and Class
D felony operating a vehicle while intoxicated. The trial court set Lindsey’s
sentencing date for June 24, 2015. On June 18, 2015, the trial court
rescheduled Lindsey’s sentencing hearing for July 15, 2015, stating: “this
judicial officer’s required attendance on June 24, 2015, at an evidentiary
hearing in Indianapolis: In the Attorney Reinstatement Matter of: F. Anthony
Zirkle and a previously planned vacation, this matter is re-set [sic] for
sentencing on July 15, 2015, at 10:00 AM.” (App. at 15) (emphasis in original).
On June 29, 2015, the trial court received a “Motion to Pronounce Sentence”
from Lindsey “without the approval of [his] attorney,” (id. at 196), objecting to
the rescheduled date.
[21] As a preliminary matter, Lindsey contends he objected to the rescheduled date.
However, the trial court did not consider Lindsey’s pro se “Motion to
Pronounce Sentence” and labeled it in the Chronological Case Summary as an
ex parte communication. It was within the court’s discretion to do so. See
Schepers v. State, 980 N.E.2d 883, 887 (Ind. Ct. App. 2012) (trial court was
within its discretion to deny pro se motion filed by defendant represented by
counsel). As Lindsey did not properly object to the rescheduling of his
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sentencing hearing, his claim is waived. See Vandergriff, 653 N.E.2d at 1054
(failure to object to the postponement of sentencing results in waiver of any
error). Waiver notwithstanding, we conclude there was good cause for the brief
postponement. See id. (clear statement of reason for rescheduling is sufficient to
demonstrate good cause for delay).
V. Ineffective Assistance of Counsel
[22] We begin our review of a claim of ineffective assistance of counsel with a strong
presumption “that counsel rendered adequate assistance and made all
significant decisions in the exercise of reasonable professional judgment.” Ward
v. State, 969 N.E.2d 46, 51 (Ind. 2012) (internal citation omitted), reh’g denied.
Trial counsel has wide latitude in selecting trial strategy and tactics, which will
be subjected to deferential review. Id. “[A] defendant must offer strong and
convincing evidence to overcome this presumption.” Harrison v. State, 707
N.E.2d 767, 777 (Ind. 1999), reh’g denied, cert. denied sub nom Harrison v. Indiana,
529 U.S. 1028 (2000).
[23] An ineffective assistance challenge requires a defendant establish both deficient
performance and resulting prejudice. Pontius v. State, 930 N.E.2d 1212, 1219
(Ind. Ct. App. 2010), trans. denied. Performance is deficient when trial counsel’s
representation falls below an objective standard of reasonableness causing
errors sufficiently serious to amount to a denial of the defendant’s Sixth
Amendment right to counsel. Wesley v. State, 788 N.E.2d 1247, 1252 (Ind.
2003), reh’g denied. Prejudice is established when “there is a reasonable
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probability that, but for counsel’s unprofessional errors, the result of the
proceeding would be different.” Id. If defendant does not establish prejudice,
we need not evaluate trial counsel’s performance. Pontius, 930 N.E.2d at 1219.
[24] Lindsey contends his “trial counsel did not fully investigate and present
evidence at trial that cast doubts on the State’s theory.” (Br. of Appellant at
33.) Specifically, Lindsey claims his trial counsel did not seek physical evidence
such as a speeding ticket or dash camera recording to impeach evidence the
State presented. Lindsey has not demonstrated any such evidence exists or
explained how its inclusion in the evidence would have affected the outcome of
his trial.
[25] “[C]ounsel has a duty to make reasonable investigations or to make a
reasonable decision that makes a particular investigation[] unnecessary.” Boesch
v. State, 778 N.E.2d 1276, 1283 (Ind. 2002), reh’g denied. Demonstrating
ineffective assistance of counsel often requires “going beyond the trial record to
show what the investigation, if undertaken, would have produced,” Slusher v.
State, 823 N.E.2d 1219, 1223 (Ind. Ct. App. 2005), because the prejudice prong
is satisfied only when there is a reasonable probability the outcome would have
been affected by the error. Id. However, when such a challenge is raised on
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direct appeal, we are limited to a review of the trial record. 6 Pontius, 930
N.E.2d at 1219.
[26] Further, it seems Lindsey’s trial counsel used the lack of physical evidence as a
strategy to attack the credibility of the State’s evidence, as trial counsel referred
to this lack of evidence in opening statements:
Because even though cars are equipment [sic] with video cameras
and audio cameras, we don’t get to have that in this case. You
don’t get to have that in this case. You don’t get to see how he
looked. You don’t get to know if it’s the officer being
unreasonable and exaggerating or if it’s the officer being truthful
and right on the mark. You don’t get to make that independent
determination which you should be able to do, because that
evidence and that ability that [sic] exist [sic] in our county to
have audio and video, but you don’t get that in this case, because
the officer’s car’s video and audio didn’t work.
(Tr. at 93-94.) Based on the limited evidence before us on appeal, we cannot
find trial counsel ineffective.
Conclusion
[27] The State presented sufficient evidence Lindsey committed Class D felony
driving while intoxicated and the statements made by the State during closing
6
Lindsey’s direct appeal of his claim of ineffective assistance of counsel precludes raising the issue again if
he pursues post-conviction relief. See Conner v. State, 711 N.E.2d 1238, 1244 (Ind. 1999) (“when this Court
decides an issue on direct appeal, the doctrine of res judicata applies, thereby precluding its review in post-
conviction proceedings”), reh’g denied, cert. denied.
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arguments were not prosecutorial misconduct. The trial court did not abuse its
discretion when it gave the instruction regarding endangerment. The trial court
showed good cause for rescheduling Lindsey’s sentencing. Finally, Lindsey has
not demonstrated his trial counsel was ineffective. Accordingly, we affirm.
[28] Affirmed.
Baker, J., and Brown, J., concur.
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