John E. Martin 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 Sep 08 2020, 8:51 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan L. Ciyou Curtis T. Hill, Jr. Alexander N. Moseley Attorney General of Indiana Ciyou and Dixon, P.C. Megan M. Smith Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

John E. Martin, September 8, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-228 v. Appeal from the Tippecanoe Circuit Court State of Indiana, The Honorable Sean M. Persin, Appellee-Plaintiff Judge The Honorable Daniel J. Moore, Magistrate Trial Court Cause No. 79C01-1702-F5-20

Baker, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 1 of 8 [1] John Martin appeals his conviction for Level 5 Felony Operating While

Intoxicated,1 arguing that blood draw evidence lacked a proper foundation and

was improperly admitted at trial. Finding no error, we affirm.

Facts [2] On February 10, 2017, John Martin’s car slid off the highway and into a ditch.

A deputy with the Mulberry Police Department learned of the accident from

someone at a nearby gas station. When he arrived at the scene, the car was

sitting next to the road, and Martin was walking away from the accident.

Martin told the deputy that he had been in an accident, but he was not hurt.

The deputy called for backup. [3] Lieutenant Randy Martin with the Tippecanoe County Sheriff’s Department

responded. He confirmed that no one else was in or near the car, which was

still hot. Lieutenant Martin smelled marijuana at the scene, smelled alcohol on

Martin, noticed that Martin’s speech was “very thick, slow, and slurred,” and

that Martin was having trouble balancing. Tr. Vol. II p. 81-82. The lieutenant

conducted a horizontal gaze nystagmus test; Martin failed. Id. at 85, 118-119.

Lieutenant Martin also administered a portable breath test to Martin, which

tested positive for alcohol. Id. at 119.

1 Ind. Code §§ 9-30-5-2, -3(b)(1)

Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 2 of 8 [4] Deputy Dustin Oliver also responded. He smelled alcohol on Martin. Id. at

165. He took Martin to the sheriff’s department hoping to administer more

sobriety tests, which Martin ultimately refused. Deputy Oliver obtained a

search warrant for Martin’s blood and took him to a hospital for a blood draw. [5] At the hospital, Deputy Oliver noticed that Martin’s eyes were glassy, his

balance was unsteady, and he was slurring his words. Tr. Vol. II p.173-174.

Maria Linenmeyer, a registered nurse, drew Martin’s blood. She gave Deputy

Oliver two of the samples she collected to send to the Indiana Department of

Toxicology and sent a third sample to the hospital’s lab. The state lab reported

that Martin’s blood contained 0.256 grams of alcohol per 100 milliliters. The

hospital lab reported that Martin’s blood contained 0.242 grams of alcohol per

100 milliliters. [6] The State charged Martin with Level 5 felony operating a vehicle while

intoxicated, Level 6 operating a vehicle while intoxicated, Class A

misdemeanor operating a vehicle with an alcohol concentration of 0.15 or

more, and Level 5 felony operating a vehicle with an ACE of 0.15 or more, and

alleged that he was an habitual vehicular substance offender. Appellant’s App.

Vol. II pp. 27-31.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 3 of 8 [7] The trial was bifurcated. The first phase was a jury trial on the underlying

charges.2 Nurse Linenmeyer testified that she had received specific training on

legal blood draws. Tr. Vol. II pp. 213-14. She said that the hospital had a

policy in place for these draws and that the policy was approved by a doctor.

Id. at 214. She said that she followed those policies in drawing Martin’s blood.

Id. at 214, 217-19. She described what that policy entails. Id. at 214-24. After

her testimony, the blood draw evidence was admitted over Martin’s objection.

Id. at 240, Tr. Vol. III p. 39-40. The jury found Martin guilty of Class C

Misdemeanor Operating a Vehicle While Intoxicated and Class A

Misdemeanor Operating a Vehicle with ACE of 0.15 or More. [8] The second phase was a bench trial on Martin’s criminal history; at the

conclusion of that phase, the trial court found Martin guilty as charged. Due

to double jeopardy concerns, however, the court entered judgment of

conviction only on Level 5 Felony operating a vehicle while intoxicated. Tr.

Vol. IV p. 173. The enhancement to a Level 5 felony was based on Martin’s

past conviction for operating a vehicle while intoxicated upon causing death.

Id.; App. Vol. II p. 23-24. The trial court also found that Martin was an

habitual vehicular substance offender. The court sentenced Martin to an

aggregate term of six years in the Indiana Department of Correction, two years

2 The underlying charge of operating while intoxicated is a Class C misdemeanor. Ind. Code § 9-30-5-2. That misdemeanor becomes a Level 5 or Level 6 felony if the defendant has certain previous convictions. Ind. Code § 9-30-5-3. Here, the first phase of the trial focused solely on whether Martin operated while intoxicated—the Class C misdemeanor—while the second phase focused on his criminal history and determined whether the Class C misdemeanor would be enhanced to a felony.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 4 of 8

in Tippecanoe County Community Corrections, and one year of probation.

App. Vol. II p. 24. Martin now appeals.

Discussion and Decision [9] Martin argues that the trial court erred in admitting the blood draw evidence

against him. In reviewing a trial court’s admissibility determination, we will

reverse only if it goes against the logic and effect of the facts, and the error

affects the defendant’s substantial rights. Guilmette v. State, 14 N.E.3d 38, 40

(Ind. 2014). In conducting our review, we consider conflicting evidence in the

light most favorable to the trial court’s ruling, and do not reweigh evidence or

re-evaluate witness credibility. Johnson v. State, 992 N.E.2d 955, 957 (Ind. Ct.

App. 2013). [10] Martin argues that the evidence was admitted in error because it lacked proper

foundation as required by Indiana Code Section 9-30-6-6(a). This statute

requires that blood samples be collected by:

A physician, a person trained in retrieving contraband or obtaining bodily substance samples and acting under the direction of or under a protocol prepared by a physician, or a licensed health care professional acting within the professional's scope of practice and under the direction of or under a protocol prepared by a physician.

Id. “The foundation for admission of laboratory blood drawing and testing

results, by statute, involves technical adherence to a physician’s directions or to

a protocol prepared by a physician.” Hopkins v. State, 579 N.E.2d 1297, 1303

Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 5 of 8

(Ind. 1991). “This is not a requirement that may be ignored.” Combs v. State,

895 N.E.2d 1252, 1256 (Ind. Ct. App. 2008). [11] Martin argues that because the State relied solely on Nurse Linenmeyer’s

testimony, the State failed to show that Linenmeyer conducted Martin’s blood

draw pursuant to “a protocol prepared by a physician.” Ind. Code § 9-30-6-

6(a). To support this argument, he relies heavily on Combs v. State, in which this

Court found that blood draw evidence supported only by a technician’s

testimony was improperly admitted because “the State failed to present

evidence that [the blood draw occurred] ‘under the direction of or under a

protocol prepared by a physician.’” 895 N.E.2d at 1258 (quoting Ind. Code § 9-

30-6-6(a)). In that case, there was “absolutely no evidence that [the technician]

acted under the direction of a physician . . . or that a physician approved the

protocol.” Id. [12] Martin’s reliance on Combs is misplaced. The record in Combs was "devoid" of

any evidence that the technician followed a physician-approved protocol or was

herself a physician. Id. That is not so in this case. Nurse Linenmeyer testified

that she was trained in legal blood draws, that her hospital had a protocol for

legal blood draws, that a physician approved that protocol, and that she

followed that protocol. Tr. Vol. II p. 213-14, 217-24. This showing was

sufficient for the trial court to find that the State laid the proper foundation for

the blood draw evidence.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 6 of 8 [13] In fact, the case before us is more in line with Pedigo v. State, 146 N.E. 3d 1002

(Ind. Ct. App. 2020), than Combs. In Pedigo, this Court distinguished Combs and

upheld the admission of blood draw evidence because the blood draw

technician’s testimony included attestations that she followed a protocol

approved by a physician. Id. at 1013-14. Martin argues that Combs applies

because Linenmeyer’s testimony is insufficiently detailed and reliable to support

the court’s decision. This argument is an invitation to reweigh the evidence,

which this Court cannot and will not do. The trial court did not err by finding

that Nurse Linenmeyer’s testimony laid a sufficient foundation for the

admission of the blood draw evidence. [14] Finally, we note briefly that even if the blood draw evidence was admitted in

error, the error was harmless. “The improper admission is harmless error if the

conviction is supported by substantial independent evidence of guilt satisfying

the reviewing court there is no substantial likelihood the challenged evidence

contributed to the conviction.” Turner v. State, 953 N.E.2d 1039, 1059 (Ind.

2011). [15] In the present case, there is substantial evidence of guilt independent of the

blood draw. The relevant conviction here is the jury verdict finding Martin

guilty of Class C misdemeanor operating a vehicle while intoxicated. This was

the charge for which the blood draw evidence was considered. [16] As for whether Martin was driving, the record reveals that the car that slid off

the highway is his, Lieutenant Martin testified that Martin told him he had been

Court of Appeals of Indiana | Memorandum Decision 20A-CR-228 | September 8, 2020 Page 7 of 8

driving when the accident occurred, and there was no one else at the scene who

could have been driving. Tr. Vol. II p. 65, 80-81. As for whether Martin was

intoxicated, the record reveals that Lieutenant Martin testified that Martin’s

speech was “thick, slow, slurred” and that “he was having a hard time with his

balance.” Tr. Vol. II p. 81-82. Deputy Oliver corroborated this testimony and

added that Martin had glassy eyes. Id. at 173-74. Lieutenant Martin also

testified that Martin’s car smelled like “burnt marijuana” and Martin smelled

faintly of alcohol. Id. Additionally, Martin failed a field sobriety test, and a

portable breath test at the scene showed that there was alcohol in his system.

Id. at 118-19. [17] The evidence in the record independent of the blood draw is more than

sufficient to support Martin’s conviction. Therefore, even if the trial court had

erred in admitting the blood draw evidence, the error was harmless. [18] The judgment of the trial court is affirmed.

Bailey, J., and Vaidik, J., concur.

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