Daniel Mason v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Sep 14 2018, 10:20 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew B. Arnett Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana

Matthew B. Mackenzie Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Mason, September 14, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-240 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Peter D. Nugent, Appellee-Plaintiff Judge Trial Court Cause No. 41D02-1610-F6-483

May, Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018 Page 1 of 8 [1] Daniel Mason appeals his conviction of Level 6 felony operating a vehicle

while intoxicated. 1 Mason argues there is insufficient evidence to support his

conviction and his sentence is inappropriate. We affirm and remand.

Facts and Procedural History [2] On October 14, 2016, Deputy Jason Wienhorst responded to a call about a

suspicious driver. Deputy Wienhorst observed a truck cross over the center line

after a “burnout.” 2 (Tr. Vol. II at 40.) Deputy Wienhorst activated his

emergency lights and siren, and he pursued the truck, which did not

immediately pull over. After stopping the vehicle, Deputy Wienhorst ordered

the driver, Mason, out of the car. Mason staggered out of the vehicle and

swayed as he walked back to Deputy Wienhorst. Deputy Wienhorst smelled

alcohol on Mason and noticed Mason had glassy and bloodshot eyes. Deputy

Wienhorst attempted to conduct a field sobriety test, but Mason did not

cooperate. As Deputy Wienhorst conducted the test, Mason did not follow the

stimulus and instead stared at the Deputy. This occurred multiple times, even

though Deputy Wienhorst reviewed the instructions each time and Mason

1 Ind. Code § 9-30-5-2(a) (a person who operates a vehicle while intoxicated commits a Class C misdemeanor); Ind. Code § 9-30-5-3 (2014) (raising Class C misdemeanor to Level 6 felony for prior conviction of OWI within five years). 2 Deputy Wienhorst defined a “burnout” as “spun the tires, where you apply pressure on the brake, and the gas at the same time, breaks the tires loose, causes them to spin, and in return it makes the rear of the vehicle break loose from traction and cause it be somewhat out of control.” (Tr. Vol. II at 40.)

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confirmed he understood them. Deputy Weinhorst found a half empty case of

beer inside the truck and two open cans of beer in the cupholders. [3] Deputy Wienhorst placed Mason under arrest and obtained a warrant to draw

his blood. Mason’s blood-alcohol level was .257%. Mason was charged with

Level 6 felony operating a vehicle as a habitual traffic violator, 3 Level 6 felony

operating while intoxicated with a prior conviction, Class A misdemeanor

operating while intoxicated endangering a person, 4 and Class C misdemeanor

operating while intoxicated. 5 The State also filed an information alleging

Mason was a Habitual Vehicular Substance Offender, 6 because he had at least

two prior unrelated convictions of a “vehicular substance offense.”

(Appellant’s App. Vol. 2 at 120.) [4] At trial, a jury found Mason guilty of Class C misdemeanor operating while

intoxicated and Level 6 felony operating while intoxicated, and determined

Mason was a Habitual Vehicular Substance Offender. The trial court merged

the Class C misdemeanor into the Level 6 felony and imposed a 2.5-year

sentence for the felony conviction. The court then enhanced that sentence by 6

3 Ind. Code § 9-30-10-16(a)(1) (2015). 4 Ind. Code § 9-30-5-2 (2001). 5 Ind. Code § 9-30-5-2 (2001). 6 Ind. Code § 9-30-15.5-2 (2015).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018 Page 3 of 8

years because Mason is a Habitual Vehicular Substance Offender, such that

Mason’s sentence for the Level 6 felony was 8.5 years. 7

Discussion and Decision Sufficiency of Evidence [5] Mason argues the record contains insufficient evidence to support his

conviction. When considering the sufficiency of evidence, “a reviewing court

does not reweigh the evidence or judge the credibility of the witnesses.”

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We must affirm “if the

probative evidence and reasonable inferences drawn from the evidence could

have allowed a reasonable trier of fact to find the defendant guilty beyond a

reasonable doubt.” Id. at 126 (internal citation omitted). [6] Mason specifically challenges the admission of the State’s evidence to prove

intoxication. The testing revealed Mason’s blood alcohol level was .257%,

which is well above the legal limit. See Ind. Code § 9-30-5-1 (2001) (defining

legal limit as .08%). Mason believes the blood drawn from him was

mishandled and, therefore, did not accurately reveal his blood-alcohol level.

Mason claims the vial of blood was shaken and was not refrigerated, both of

7 The trial court’s Order and Abstract of Judgment do not indicate Mason was found to be a Habitual Vehicular Substance Offender. As that finding is needed to enhance his sentence it should be reflected in the orders, and we direct the trial court to amend those orders accordingly. Additionally, the Order contains language stating Mason waived his right to appeal; however, we find no support for that in the transcript and direct the trial court to remove that language in the amended order.

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which would alter the results of the blood test. However, Robert Ruhl, a

forensic scientist for the Indiana Department of Toxicology, testified as to the

effects of the mistreatment of the blood sample. Ruhl said that the tipping or

shaking of the blood would have no effect on the test and the lack of

refrigeration, if it were to have an effect, would lower the alcohol level in the

blood. Accordingly, Mason has not demonstrated the alleged mistreatment of

his blood sample rendered the test result invalid or prejudicial. [7] Furthermore, the State did not need to rely on a chemical test to prove

intoxication. “Impairment can be established by evidence of (1) the

consumption of 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; (7) slurred speech.” Fought v.

State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008). Deputy Wienhorst testified he

observed Mason drive his truck erratically, cross the center line and speed

away. Deputy Wienhorst watched Mason stagger and sway as he walked,

noticed Mason had bloodshot and glassy eyes, and smelled alcohol on Mason.

Mason failed to follow instructions to complete a field sobriety test. Open beer

cans and a half empty case of beer were found in the truck. Based on these

facts, the evidence was sufficient to prove intoxication. See, e.g., Fields v. State,

888 N.E.2d 304, 308 (Ind. Ct. App. 2008) (affirming conviction of operating

while intoxicated based on similar evidence proving intoxication).

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Inappropriate Sentence [8] Mason argues that, in light of his character and the nature of his offense, his

sentence was inappropriate.

We “may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Ind. Appellate Rule 7(B). “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.” Shouse v. State, 849 N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and quotation marks omitted). “[W]hether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). In addition to the “due consideration” we are required to give to the trial court’s sentencing decision, “we understand and recognize the unique perspective a trial court brings to its sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007).

Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

denied. The appellant bears the burden of demonstrating his sentence is

inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

trans. denied.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018 Page 6 of 8 [9] Regarding the nature of the offense, the trial court acknowledged Mason was

driving without a license. Mason also had a passenger in the vehicle, and

Mason put the passenger in danger. As a result of performing a burnout,

Mason also endangered other drivers when he crossed over the center line and

created a lot of dust, smoke and debris, making it difficult for other drivers to

see.

As for Mason’s character, the trial court noted Mason’s thirteen prior

misdemeanors and six prior felonies including his six prior convictions of

operating a vehicle while intoxicated. Mason argues the court did not

recognize several mitigating factors such as his two young children, his

financial support for his family, and his potential to receive treatment.

However, during the presentence investigation, Mason admitted he did not

have a job or any money and asserted he did not believe further treatment for

his substance abuse would do any good. Mason also expressed disinterest in

probation or any other community supervision. The trial court did

acknowledge Mason was respectful towards the jury and court staff. [10] The sentencing guideline for a Level 6 felony is 6 months to 2.5 years. Ind.

Code § 35-50-2-7(b) (2016). The sentencing guidelines allow for an

enhancement following an adjudication as a Habitual Vehicular Substance

Offender of one to eight years. Ind. Code § 9-30-15.5-2(d) (2015). Considering

Mason’s character and the nature of his offense, we do not believe his sentence

of eight and half years is inappropriate.

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Conclusion [11] The evidence demonstrates that Mason was intoxicated and, therefore, guilty of

Level 6 felony operating a vehicle while intoxicated. Also, in light of Mason’s

character and the nature of his offense, Mason’s eight-and-half-year sentence is

not inappropriate. Nevertheless, we remand for the trial court to fix the Order

and Abstract of Judgment as stated in footnote 7. [12] Affirmed and remanded.

Baker, J., and Robb, J., concur.

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