      MEMORANDUM DECISION
                                                                      Jul 29 2015, 8:57 am
      Pursuant to Ind. Appellate Rule 65(D), this
      Memorandum Decision shall not be regarded as
      precedent or cited before any 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
      Leanna Weissmann                                          Gregory F. Zoeller
      Lawrensburg, Indiana                                      Attorney General of Indiana
                                                                Michael Gene Worden
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Connie Kidd,                                             July 29, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               16A01-1412-CR-522
              v.
                                                               Appeal from the Decatur Superior
      State of Indiana,                                        Court
                                                               The Honorable Matthew Bailey,
      Appellee-Plaintiff,                                      Judge
                                                               Cause No. 16D01-1307-FD-462




      Robb, Judge.



                                Case Summary and Issues
[1]   Following a jury trial, Connie Kidd was convicted of operating a vehicle while

      intoxicated as a Class D felony. She raises two issues for our review: (1)

      Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015      Page 1 of 7
      whether the trial court abused its discretion by admitting Kidd’s blood test

      results; and (2) whether the abstract of judgment must be amended to clarify

      that Kidd acquired only one conviction in this case. We conclude the trial

      court did not abuse its discretion by admitting Kidd’s blood test results.

      Therefore, we affirm her conviction for Class D felony operating a vehicle while

      intoxicated. However, we remand with instructions that the trial court amend

      Kidd’s abstract of judgment to clarify that only one conviction was entered

      against her.



                            Facts and Procedural History
[2]   On July 6, 2013, Officer David Henderson of the Decatur County Sheriff’s

      Department responded to a report of a possibly intoxicated person in a

      restaurant parking lot. Officer Henderson arrived at the restaurant and

      approached Kidd, who was sitting in the driver’s seat of her vehicle. Officer

      Henderson believed that Kidd was intoxicated and asked her to step out of the

      vehicle, but she stated that her vehicle was not running and that she did not

      wish to get out of the vehicle. The officer advised Kidd to contact a sober

      driver. Officer Henderson and two other officers left the parking lot but

      remained nearby.


[3]   Shortly after the officers left the parking lot, Kidd started her vehicle and

      attempted to drive away. The officers initiated a traffic stop. Kidd performed a

      field sobriety test—the horizontal gaze nystagmus test—during which she



      Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015   Page 2 of 7
      showed signs of intoxication. Kidd was advised of Indiana’s implied consent

      law, and she agreed to take a chemical test.


[4]   Kidd was transported to the Decatur County EMS building for a blood draw.

      After conducting the blood draw, the paramedic handed a vial of Kidd’s blood

      to Officer Henderson, who shook the vial for approximately one minute. The

      blood later tested positive for marijuana metabolites and a blood alcohol

      content of 0.17.


[5]   The State charged Kidd as follows: Count 1, operating a vehicle while

      intoxicated, a Class C misdemeanor; Count 2, operating a vehicle with an

      alcohol concentration of 0.15 or more, a Class A misdemeanor; Count 3,

      operating a vehicle with a controlled substance in the body, a Class C

      misdemeanor; and Count 4, operating a vehicle while intoxicated, a Class D

      felony.1 A jury found Kidd guilty of Counts 1, 2, and 3, and after Kidd

      stipulated to the existence of a prior conviction for operating a vehicle while

      intoxicated, the trial court found her guilty of Count 4. The trial court ordered

      the first three counts to be merged into Count 4, and entered a conviction on

      Count 4. Kidd was sentenced to a total of 540 days, which were to be split

      between imprisonment, community corrections, and supervised probation.

      Kidd now brings this appeal.




      1
        Count 4 was charged as a Class D felony because Kidd had a prior conviction for operating a vehicle while
      intoxicated. See Ind. Code § 9-30-5-3(a) (2013).

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                                 Discussion and Decision
                             I. Admission of BAC Evidence
[6]   Kidd contends that her blood test results were erroneously admitted at trial

      because Officer Henderson’s improper handling of the blood sample rendered

      the test results unreliable. A trial court’s decision to admit or exclude evidence

      is reviewed for an abuse of discretion. Remy v. State, 17 N.E.3d 396, 399 (Ind.

      Ct. App. 2014), trans. denied. The court abuses its discretion when its decision is

      clearly against the logic and effect of the facts and circumstances or when the

      trial court has misinterpreted the law. Id. The court’s decision concerning the

      reliability of scientific evidence is reviewed under an abuse of discretion

      standard. Hagerman Construction, Inc. v. Copeland, 697 N.E.2d 948, 957 (Ind. Ct.

      App. 1998), trans. denied. Relevant evidence is generally admissible at trial.

      Ind. Evidence Rule 402. However, relevant evidence may be excluded “if its

      probative value is substantially outweighed by a danger of . . . unfair prejudice,

      confusing the issues, misleading the jury, undue delay, or needlessly presenting

      cumulative evidence.” Ind. Evidence Rule 403.


[7]   Blood test results are generally admissible so long as they comply with the rules

      of evidence. State v. Bisard, 973 N.E.2d 1229, 1235 (Ind. Ct. App. 2012) (citing

      Ind. Code § 9-30-6-6(c)), trans. denied. Presumably, that is the case because

      “[b]lood samples are obtained and analyzed by medical professionals who are

      trained to produce reliable results.” Id. However, deviation from proper

      procedure concerning the blood draw and testing may warrant exclusion of


      Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015   Page 4 of 7
      blood test results in some circumstances. See Hagerman Construction, 697 N.E.2d

      at 956-57 (holding trial court did not abuse its discretion by excluding evidence

      of blood test results where the failure to freeze the sample and add preservatives

      rendered the results unreliable).


[8]   Kidd argues that a breach in proper procedure calls into question the reliability

      of the test results in this case. After a blood sample is taken, it is ordinarily

      mixed with an anticoagulant, which is achieved by gently inverting the sample

      several times. Here, rather than a few gentle inversions of the vial, Officer

      Henderson shook Kidd’s blood sample for approximately one minute. It is

      Kidd’s position that this shaking may have caused hemolysis—the breaking

      down of red blood cells—which, in turn, could impact certain blood test results.

      Kidd presented evidence of such a possibility through a Mayo Clinic report.

      The State countered with testimony from its expert witness, who stated that

      improper inversion of the blood sample created only a small chance of

      hemolysis. On appeal, the State also points out that Kidd presented only

      evidence that hemolysis was possible and that it could have an effect on a blood

      test; Kidd did not present evidence that hemolysis actually occurred in this case

      or that hemolysis affected the blood alcohol test.


[9]   The trial court was presented with evidence from the State that Officer

      Henderson’s handling of Kidd’s blood sample, albeit improper, was not likely

      to cause hemolysis or impact the blood test results. It was within the trial

      court’s discretion to credit that testimony. Under the circumstances of this case



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       and considering the evidence before the trial court, we cannot say that the trial

       court abused its discretion by admitting the blood test results.


                                   II. Abstract of Judgment
[10]   Next, Kidd complains of what she believes to be an ambiguity in the abstract of

       judgment. After Kidd was found guilty of the four counts against her, the trial

       court purported to merge the first three counts into Count 4 and enter a

       conviction only as to Count 4. Indeed, the trial court’s sentencing order is clear

       that only Count 4 was to be entered as a conviction: “for the purposes of

       sentencing, Counts One, Two, and Three merge into Count Four. The Court

       now enters judgment of conviction only as to Count Four . . . .” Appellant’s

       Appendix at 405. However, Kidd notes that the abstract of judgment lists the

       disposition of Counts 1, 2, and 3 as “Conviction Merged.” Id. at 414.

       Meanwhile, it lists the disposition of Count 4 as “Finding of Guilty.” Id. She

       expresses concern that someone reading the abstract of judgment might

       interpret it to mean that convictions were entered on all four counts and then

       merged.


[11]   We agree that it is possible to read the abstract of judgment as stating

       convictions were entered on all four of the counts against Kidd. Therefore, we

       remand with instructions that Kidd’s abstract of judgment be amended to

       clarify that Counts 1, 2, and 3 were not convictions.




       Court of Appeals of Indiana | Memorandum Decision 16A01-1412-CR-522| July 29, 2015   Page 6 of 7
                                               Conclusion
[12]   We conclude the trial court did not abuse its discretion by admitting Kidd’s

       blood test results and thus affirm her conviction for Class D felony operating a

       vehicle while intoxicated. Due to an ambiguity in Kidd’s abstract of judgment,

       we remand with instructions that the judgment be amended to clarify that no

       judgment of conviction was entered on Counts 1, 2, and 3.


[13]   Affirmed and remanded.


       May, J., and Mathias, J., concur.




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