Eric A. Bail v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Apr 21 2016, 7:59 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Marielena Duerring Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Eric P. Babbs
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Eric A. Bail, April 21, 2016
Appellant-Defendant, Court of Appeals Case No.
20A05-1503-CR-94
v. Appeal from the Elkhart Circuit
Court
State of Indiana, The Honorable Terry C.
Appellee-Plaintiff. Shewmaker, Judge
Trial Court Cause No.
20C01-1307-CM-1109
Pyle, Judge.
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Statement of the Case
[1] Eric A. Bail (“Bail”) appeals, following a bench trial, his conviction for Class A
misdemeanor operating a vehicle while intoxicated (“OVWI”).1 Bail was also
charged with and found guilty of Class A misdemeanor operating a vehicle with
an alcohol concentration equivalent to at least 0.15 grams of alcohol per 210
liters of breath,2 but the trial court did not enter judgment of conviction on this
charge. Bail argues that: (1) the trial court abused its discretion by admitting
evidence that had been obtained following his arrest (including the results of his
field sobriety tests and chemical tests and an officer’s post-arrest observations of
him); and (2) the remaining evidence was insufficient to support his OVWI
conviction. We conclude that: (1) Bail’s first argument is waived because he
did not make a contemporaneous objection to the admission of the challenged
evidence and that, waiver notwithstanding, his argument is moot because the
trial court specified that it did not use this challenged evidence to support his
OVWI conviction; and (2) the evidence is sufficient to support his OVWI
conviction. Accordingly, we affirm.
[2] We affirm.
Issues
1. Whether the trial court abused its discretion by admitting
evidence that had been obtained following Bail’s arrest.
1
IND. CODE § 9-30-5-2(b).
2
I.C. § 9-30-5-1(b)(2).
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2. Whether sufficient evidence supports Bail’s OVWI conviction.
Facts
[3] On September 23, 2011, around 10:45 p.m., Elkhart City Police Department
officers—Sergeant Carl Miller (“Sergeant Miller”), Corporal Christopher Faigh
(“Corporal Faigh”), and Corporal Jim Wrathell (“Corporal Wrathell”)—were
dispatched to the Between the Buns restaurant in Elkhart County. These
officers, who were working in the anti-crime unit, were not wearing police
uniforms and were driving in unmarked cars. They did, however, have their
police badges hanging on lanyards outside their shirts. After arriving at the
restaurant, Sergeant Miller talked to an employee, who informed him that two
groups of people had been arguing in the restaurant and that she had asked one
of the groups to leave. This group, which included Bail, Eric Walker
(“Walker”), Nicole Smith (“Smith”), and Paige Johnson (“Johnson”), was
standing in the parking lot.
[4] When Sergeant Miller approached Bail, he noticed that Bail was talking “very
loudly” and that he had bloodshot, glassy eyes, an unsteady balance, and a
“strong odor of alcohol emitting from his breath.” (Tr. 154). The officers also
observed the three other individuals had these same or similar signs of
intoxication. Sergeant Miller felt that “none of the four were able to drive in a
safe manner[,]” and he instructed them to call a sober driver to pick them up.
(Tr. 155). Bail and the three others “agreed to that” and did not dispute the
officer’s determination that they were too intoxicated to drive. (Tr. 156). Bail
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and Johnson then went to wait in Bail’s car while Walker and Smith went to
wait in Walker’s truck.
[5] Meanwhile, Sergeant Miller and Corporal Faigh returned to their car and
parked in a nearby parking lot to make sure that Bail and Walker did not drive
away from the scene. Corporal Wrathell, who was in another vehicle, then saw
Walker’s truck, and what he believed to be Bail’s car, drive away from the
restaurant parking lot. Sergeant Miller began to follow Bail’s and Walker’s
vehicles and called dispatch to “advise[] them to send a marked squad car to
[his] location for a traffic stop.” (Tr. 160). Thereafter, Sergeant Miller observed
Bail strike the curb when making a turn, and he saw that Bail failed to signal
within 200 feet of making the turn. The sergeant also saw Walker make the
same turn and drive over the curb. Bail turned into a Red Lobster parking lot,
and Walker turned into the adjacent Texas Roadhouse parking lot.
[6] Bail stopped his car near one of the entrances of the Red Lobster parking lot,
and Sergeant Miller drove his car into that entrance and stopped his car by
Bail’s car. The sergeant then got out of his car, walked toward Bail’s car to talk
to him through his open window, and told Bail to turn off and exit his car.
Sergeant Miller then “placed [Bail] in handcuffs and advised him that he was
not supposed to be driving[.]” (Tr. 164). Around that time, Corporal Jason
Tripp (“Corporal Tripp”), who was responding to the dispatch for a uniformed
police officer, arrived at the scene. Sergeant Miller and Corporal Faigh waived
Corporal Tripp on to the adjacent Texas Roadhouse parking lot where Corporal
Wrathell had stopped with Walker. Thereafter, Sergeant Miller removed the
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handcuffs from Bail and administered several field sobriety tests, which Bail
failed. The sergeant then advised Bail of the Implied Consent Law, and Bail
agreed to take a chemical test. Corporal Tripp transported Bail to the police
station where Officer Greg Szabo (“Officer Szabo”) administered the chemical
test to Bail. The results of the chemical test revealed that Bail had a BAC of
0.16.
[7] The State charged Bail with Class A misdemeanor OVWI in the Elkhart City
Court (“City Court”). On April 18, 2013, the City Court held a trial, found Bail
guilty, entered judgment, and imposed a 365-day suspended sentence. Bail then
filed a request for a trial de novo, and the case was transferred to the Elkhart
Circuit Court (“Circuit Court”). Shortly thereafter, in August 2013, the State
filed a charging information in Circuit Court and charged Bail with: Count I,
Class A misdemeanor OVWI; and Count II, Class A misdemeanor operating a
vehicle with an alcohol concentration equivalent to at least 0.15 grams of
alcohol per 210 liters of breath.
[8] In October 2013, Bail filed a motion to suppress, apparently seeking to suppress
the results of his field sobriety tests and chemical test and arguing that his arrest
violated INDIANA CODE § 9-30-2-2 because Sergeant Miller had not been in
either a police uniform or a marked police vehicle when he arrested him.3
3
Bail did not include a copy of his motion to suppress in his Appellant’s Appendix.
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Following a hearing, the trial court issued a four-page written order and denied
Bail’s motion to suppress. The trial court reasoned, in part, that:
The police officers properly contacted defendant Bail in person
on police business minutes before he apparently committed an
offense of operating a vehicle while intoxicated. The officers
formed an opinion that Bail was intoxicated based on this initial
and permissible contact. The act of driving a short time later, by
the language of the statute and decided case law, brings the
limitation of IC [§] 9-30-2-2 into question. The action of [O]fficer
Miller in commanding Bail to shut of[f] his vehicle effected an
arrest of Bail . . . The only alleged offenses are defined under
Title 9. However, Officer Miller had clear evidence that Bail was
intoxicated, then personally observed Bail commit acts
presenting danger to himself, his passenger, and others on the
roadway. These acts may have been charged as public
intoxication and criminal recklessness, not governed by Title 9 of
the Indiana Code. The officers responded to a criminal call[] and
arrested Bail for criminal acts committed in their presence” and
that IC [§] 9-30-2-2 d[id] not prohibit the arrest[.]”
(App. 46-47).
[9] The trial court held a bench trial on December 11, 2014. During Sergeant
Miller’s direct examination, he testified that Bail had failed the various field
sobriety tests that he had administered. Thereafter, Bail objected to this
evidence, arguing that his arrest was not legal under INDIANA CODE § 9-30-2-2.4
The State responded that Bail had waived his objection because it was
4
Bail also generally argued that his “Indiana rights through the constitution were violated as well as the U.S.
Constitution[.]” (Tr. 178).
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untimely. The State also argued that the trial court’s ruling from the motion to
suppress was applicable. The trial court did not comment at that time on the
State’s waiver response and merely overruled the objection. Bail later cross-
examined Sergeant Miller about Bail’s field sobriety test results and the
reliability of such tests.
[10] When the State asked Sergeant Miller if he was aware of the results of Bail’s
chemical test, Bail objected based on hearsay and not based on INDIANA CODE
§ 9-30-2-2. The State withdrew the question and asked the sergeant what he did
after Bail had completed the chemical test. Sergeant Miller then testified that
he saw that the printed ticket from the Datamaster machine indicated that Bail
had a 0.16 BAC and that he then took Bail to the booking center. Bail did not
object to this testimony, nor did he move to strike it from the record.
[11] Next, during Corporal Faigh’s direct examination, he testified that when the
officers were in the Red Lobster parking lot with Bail, he was watching Bail’s
passenger and that he did not really observe anything about Bail. Nevertheless,
the State asked the corporal if he had made any observations of Bail after Bail
had completed his field sobriety tests. Bail objected to the corporal’s potential
testimony, asserting that it should be excluded because Bail’s arrest did not
comply with INDIANA CODE § 9-30-2-2. Before ruling on Bail’s objection to the
question posed to Corporal Faigh, the trial court “not[ed]” and discussed the
State’s previous argument about Bail waiving his objection to Sergeant Miller’s
testimony. Specifically, the trial court stated that “the State’s got a nice
procedural point on the waiver” because there were a “goodly handful of
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questions asked and answered prior to the objection being interposed[.]” (Tr.
240, 241). The trial court stated that the waiver argument was “correct” as to
the sergeant’s testimony that occurred before Bail’s objection. (Tr. 242). The
trial court then overruled Bail’s objection to the question posed to Corporal
Faigh, and the corporal testified that he did not make any observations of Bail
during the investigation in the Red Lobster parking lot.
[12] During Officer Szabo’s direct examination, he testified that Bail’s BAC was
0.16, and Bail did not object to this testimony. When the State moved to
introduce State’s Exhibit 5, the printout ticket from the chemical test, Bail
objected based on hearsay and the best evidence rule and not based on INDIANA
CODE § 9-30-2-2. The trial court overruled the objection and admitted the
evidence.
[13] The trial court found Bail guilty of both charges. The trial court entered the
following order, specifying what evidence it had used to find Bail guilty of each
offense:
The defendant is found guilty on operating a vehicle while
intoxicated in a manner that endangered a person. The finding is
based on all the evidence, but specifically is proven beyond a
reasonable doubt up to the point in the evidence where the
defendant had driven to the parking lot of Red Lobster, but
before the officer stepped out of his vehicle to continue the
transaction.
The defendant is found guilty on operating a vehicle with breath-
alcohol content of .15 percent or more. This evidence necessarily
includes evidence after the point of arrest at the Red Lobster
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parking lot. It remains the view of this court that the evidence
developed after the moment the defendant was told to turn off
the car and step out, should not be excluded pursuant to IC [§] 9-
30-2-2. The ruling on the motion to suppress is unchanged.
(App. 34). The trial court, however, did not enter a judgment of conviction on
Count II. For Bail’s Class A misdemeanor OVWI conviction, the trial court
imposed a 365 day sentence with 363 days suspended to probation. Bail now
appeals.
[14] After Bail filed his Appellant’s Brief, the State filed a motion to dismiss the
appeal. Specifically, the State argued that the only appellate error raised by Bail
pertained to the Count II charge that did not result in a judgment of conviction
and that, therefore, Bail’s claim of error was moot. The State’s motion was
held in abeyance for a decision by this writing panel. Because Bail’s appeal also
involves a challenge to his OVWI conviction in Count I, we deny the State’s
motion to dismiss and issue a separate order contemporaneously with this
opinion.
Decision
[15] Bail argues that: (1) the trial court abused its discretion by admitting evidence
that had been obtained after his arrest; and (2) the remaining evidence was
insufficient to support his OVWI conviction. We will address each argument in
turn.
1. Admission of Evidence
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[16] Before addressing Bail’s evidentiary argument, we note that the admission and
exclusion of evidence falls within the sound discretion of the trial court, and we
review the admission of evidence only for an abuse of discretion. Wilson v.
State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs when
the trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Conley v. State, 972 N.E.2d 864, 871 (Ind. 2012), reh’g
denied.
[17] Bail argues that the trial court abused its discretion by admitting evidence that
followed his arrest, including evidence of the results of his field sobriety tests
and chemical tests and Sergeant Miller’s post-arrest observations of him because
his arrest did not comply with INDIANA CODE § 9-30-2-2. The State, on the
other hand, renews its mootness argument raised in its prior motion to dismiss.
Specifically, the State asserts that “[b]ecause Bail’s claim of evidentiary error
does not relate to his conviction, but only affects an additionally charged count
for which there was no conviction or sentence, this appeal is moot.” (State’s
Br. 12). Alternatively, the State argues that the trial court’s evidentiary ruling
was not erroneous and that the admission of the challenged evidence was
harmless error.
[18] While the parties have presented specific arguments regarding whether or not
there was any error in the admission of the evidence based on the application of
INDIANA CODE § 9-30-2-2, we need not address these arguments because Bail
did not make a contemporaneous objection when the now-challenged evidence
was offered and admitted at trial.
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[19] The record reveals that Sergeant Miller testified that Bail had failed the field
sobriety tests, but Bail did not object to this specific testimony until after the
testimony had already been given. The State argued that he waived the
objection based on his untimely objection, and the trial court ultimately agreed
with that argument. Furthermore, in regard to Bail’s chemical test results, Bail
either did not object to the relevant evidence or did not object based on the
same basis of INDIANA CODE § 9-30-2-2 that he now attempts raises on appeal.
Specifically, he did not object when the State presented testimony from Officer
Szabo regarding his chemical test results, and he objected to State’s Exhibit 5
(the chemical test results ticket) based on hearsay and the best evidence rule.
Accordingly, Bail has waived review of this evidentiary issue on appeal. See
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (holding that a defendant’s
failure to lodge a contemporaneous objection at the time evidence is introduced
at trial results in waiver of the error on appeal), reh’g denied; Hart v. State, 578
N.E.2d 336, 337 (Ind. 1991) (holding that “a party may not object to the
admission of evidence on one basis at trial and for a different reason on appeal).
See also Stephenson v. State, 29 N.E.3d 111, 118 (Ind. 2015) (explaining that the
failure to timely object to the admission of evidence will “procedurally
foreclose” the error on appeal); Jackson v. State, 735 N.E.2d 1146, 1152 (Ind.
2000) (“The failure to make a contemporaneous objection to the admission of
evidence at trial results in waiver of the error on appeal.”); Tinnin v. State, 416
N.E.2d 116, 118 (Ind. 1981) (explaining that a defendant “must make his
objection to a question before the answer is given in order to preserve the issue
for appeal”).
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[20] Waiver notwithstanding, we agree with the State’s argument that Bail’s
evidentiary challenge is moot. “The long-standing rule in Indiana has been that
a case is deemed moot when no effective relief can be rendered to the parties
before the court.” Matter of Lawrance, 579 N.E.2d 32, 37 (Ind. 1991). When a
dispositive issue in a case has been resolved in such a way as to “‘render it
unnecessary to decide the question involved,’ the case will be dismissed.” Id.
(quoting Dunn v. State ex rel. Eakin, 163 Ind. 317, 321, 71 N.E. 890, 894 (1904)).
“The existence of an actual controversy is an essential requisite to appellate
jurisdiction.” DeSalle v. Gentry, 818 N.E.2d 40, 49 (Ind. Ct. App. 2004).
[21] Even if Bail had made a contemporaneous objection to the challenged evidence
that mirrored his appellate challenge and we were to consider his argument that
the trial court erred by admitting evidence that was obtained after he had been
arrested, such an argument would have been rendered moot by the trial court’s
order and specific finding that explained that it did not consider the challenged
evidence when finding Bail guilty of the OVWI charge in Count I. Because the
challenged evidence was considered only in regard to the Count II charge for
which no judgment of conviction was entered, his evidentiary challenge is
moot. Furthermore, because Bail’s argument does not meet the public interest
exception to mootness, we will not address his waived appellate claim.5
5
“[A]lthough moot cases are usually dismissed, Indiana courts have long recognized that a case may be
decided on its merits . . . when the case involves questions of ‘great public interest.’” Matter of Lawrance, 579
N.E.2d at 37. “Cases found to fall within the public interest exception typically contain issues likely to
recur.” Id. Additionally, we need not address Bail’s waived and moot evidentiary challenge because any
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2. Sufficiency of the Evidence
[22] Bail argues that the evidence was insufficient to support his Class A
misdemeanor OVWI conviction.
When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the [jury’s verdict].
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks and
citations omitted) (emphasis in original).
[23] To convict Bail of Class A misdemeanor OVWI as charged, the State was
required to prove beyond a reasonable doubt that Bail operated a vehicle while
intoxicated in a manner that endangered a person. See I.C. § 9-30-5-2(b).
error that may have possibly occurred in the admission of the challenged evidence would constitute harmless
error. See Ind. Appellate Rule 66(A) (addressing harmless error).
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“Intoxicated” means being “under the influence of . . . alcohol. . . so that there
is an impaired condition of thought and action and the loss of normal control of
a person’s faculties.” I.C. § 9-13-2-86(1). “‘Impairment can be established by
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.’” Matlock v. State, 944 N.E.2d 936, 941 (Ind. Ct. App.
2011) (quoting Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009),
trans. denied). “Proof of a person’s blood alcohol content is not required to
establish intoxication.” Id.
[24] Bail argues that the evidence was insufficient to show that he was “impaired”
when operating his vehicle. (Bail’s Br. 7). Bail does not argue that there was
insufficient evidence of endangerment caused by his intoxication.
[25] Here, there is no dispute that Bail was driving a vehicle. Indeed, Bail testified
on his own behalf and admitted that he drove that night. There was also
sufficient evidence that Bail was intoxicated when he drove his car. Sergeant
Miller and Corporal Faigh testified about their observations of Bail made at the
restaurant where they were dispatched and first encountered Bail. Specifically,
they testified that Bail had bloodshot eyes, unsteady balance, and an odor of
alcohol coming from his breath and that these signs were consistent with signs
of intoxication. Additionally, Bail’s passenger testified that Bail had consumed
at least one alcoholic drink that night. The officers also testified that, within
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minutes of observing Bail and instructing him to get a rider from a sober driver,
Bail drove car and struck a curb when trying to make a turn.
[26] Bail’s argument is nothing more than an invitation for this Court to reweigh the
evidence and judge the credibility of the witness, which we decline to do. See
Drane, 867 N.E.2d at 146. Because there is probative evidence from which the
trial court, as trier of fact, could have found Bail guilty beyond a reasonable
doubt of Class A misdemeanor OVWI, we affirm his conviction.
[27] Affirmed.
Baker, J., and Bradford, J., concur.
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