Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                   Jul 31 2012, 8:47 am
court except for the purpose of
establishing the defense of res judicata,                          CLERK
                                                                 of the supreme court,
collateral estoppel, or the law of the case.                     court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DONALD R. SHULER                                 GREGORY F. ZOELLER
Barkes Kolbus Rife & Shuler                      Attorney General of Indiana
Goshen, Indiana
                                                 ELLEN H. MEILAENDER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                               IN THE
                    COURT OF APPEALS OF INDIANA

SAMUEL DAVIS, JR.,                               )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 57A03-1110-CR-499
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE NOBLE SUPERIOR COURT
                         The Honorable Robert E. Kirsch, Judge
                             Cause No. 57D01-1012-FB-4


                                       July 31, 2012

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Samuel Davis, Jr. (Davis), appeals his conviction for

operating while intoxicated causing death, a Class B felony, Ind. Code § 9-30-5-5(b)(1).

      We affirm.

                                        ISSUES

      Davis raises three issues on appeal, which we restate as the following four issues:

      (1) Whether the admission of Davis’ blood test constituted fundamental error;

      (2) Whether the State presented sufficient evidence beyond a reasonable doubt to

          support Davis’ conviction;

      (3) Whether the trial court properly refused to tender Davis’ proposed jury

          instruction on unpreserved evidence; and

      (4) Whether Davis’ sentence is inappropriate in light of his character and the

          nature of the crime.

                       FACTS AND PROCEDURAL HISTORY

      In March of 2010, thirty-four year old Davis and twenty-two year old Victoria

Anderson (Anderson) were dating. Around 4 a.m. on March 2, 2010, Davis was driving

home and Anderson was in the passenger seat. At some point, Davis’ car left the

roadway and ran into a tree, with the passenger side absorbing the brunt of the impact.

Anderson was pronounced dead on the scene, with the cause of death being blunt force

trauma from the accident.




                                            2
          Around 4:30 a.m., Kosciusko County Sheriff’s Deputy Travis Shively (Officer

Shively) arrived at the scene. He noticed an odor of alcohol emanating from the car and

observed that Davis’ eyes were bloodshot. Davis was conscious but disoriented and

confused; Officer Shively did not see any sign of life from Anderson. Upon being told

that he had struck a tree, Davis responded, “no, I didn’t.”            (Transcript p. 272).

Eventually, Davis was removed from the vehicle and transported by ambulance to a local

hospital.       When Sheriff’s Deputy Brandon Hepler (Officer Hepler) entered the

ambulance, he smelled a strong odor of alcohol and observed that Davis’ eyes were

bloodshot and watery. Certified paramedic Naomi Oleson also smelled the odor of

alcohol, as well as flight nurse Cindy McDonald who accompanied Davis when he was

airlifted to Parkview Hospital, in Fort Wayne, Indiana.

          Officer Hepler read the implied consent law to Davis three times in the ambulance,

but Davis never acknowledged that he heard advisement nor did he respond. Officer

Hepler requested an EMT to draw a blood sample from Davis, which was given to

Lieutenant Chris McKeand (Officer McKeand). When Officer McKeand learned of the

circumstances in which the blood draw had taken place, he became concerned about the

validity of the consent.1          He dispatched Sheriff’s Deputy Rick Shepherd (Officer

Shepherd) to the hospital to obtain another blood sample. When Officer Shepherd spoke

with Davis, he noticed the strong odor of alcohol, Davis’ bloodshot eyes, and his repeated

question about what had happened. Officer Shepherd read the implied consent law;

Davis did not respond but instead stared at the ceiling. Officer Shepherd informed

1
    The blood sample obtained by Officer Hepler was never tested.


                                                     3
Officer McKeand about the lack of response and the Officers decided to get a search

warrant.

      When Davis arrived at the Parkview Hospital, emergency room physician Dr.

Corbett Smith (Dr. Smith) ordered Davis’ blood to be tested for alcohol, among other

things, for the purpose of diagnosis and treatment. The hospital’s certified phlebotomist

drew Davis’ blood in accordance with the hospital’s protocols.           The blood was

transferred to the hospital’s laboratory for immediate testing. Testing by the hospital’s

certified medical technician revealed a blood alcohol content of between .20 to .27. After

the results of the test were released to law enforcement pursuant to an emergency release

form, the blood sample was frozen and not further tested.

      Officer Shepherd returned to the hospital with a search warrant to draw Davis’

blood. Hospital laboratory assistant, Shelli Hack (Hack), drew Davis’ blood following

the hospital’s protocols. After the blood draw, Hack handed the sample to Officer

Shepherd who completed the paperwork, packaged up the sample, and sealed it. Officer

Shepherd mailed the blood sample together with a urine sample that he had obtained, to

the State Toxicology lab by certified mail later that same morning.

      A week later, on March 9, 2010, the sample was received by the State’s

Toxicology lab and stored in the walk-in refrigerator. On April 29, 2010, an analyst

retrieved the sample for testing, which revealed a blood alcohol content of .25. On May

12 and 18, 2010, further testing was conducted which showed the presence of marijuana

and cocaine metabolites in Davis’ blood.




                                            4
       Meanwhile, members of the Fatal Alcohol Crash Team (FACT) conducted an

investigation at the scene of the accident and found that the road was dry in the early

morning of March 2, 2010. FACT did not find any evidence that Davis applied his

brakes on or off the roadway, nor did the team find any evidence of any other response by

Davis, such as steering to correct the course of the vehicle.         Following FACT’s

conclusions, Officer McKeand met with Davis. During the interview, Davis told the

Officer that on the morning of the accident, a car was coming towards him in his lane, he

applied his brakes and went off the road.        After hearing this explanation, Officer

McKeand returned to the place of the accident. He inspected the road but was unable to

find any brake marks. Also, after obtaining a search warrant for Davis’ vehicle, Officer

Shepherd was unable to find any patches on the tires which would be indicative of the

application of hard braking during a skid. However, it should be noted that Officer

Shepherd only looked at those sections of the tires that were readily visible; he did not

rotate the tires.

       On March 8, 2010, the State filed an Information charging Davis with operating

while intoxicated causing death, a Class B felony, I.C. § 9-30-5-5(b)(1). In May of 2010,

Davis entered into a plea agreement with the State to plead guilty to a lesser included

offense. This plea was rejected by the trial court for being deemed too lenient. In July of

2010, Davis again entered into a plea agreement but changed his mind at a subsequent

hearing and decided to plead not guilty. On August 6, 2010, the State filed an amended

Information charging Davis with Count I, causing the death of another person while

operating a motor vehicle with a blood alcohol content of at least .15, a Class B felony,


                                            5
I.C. § 9-30-5-5; Count II, causing the death of another person while operating a motor

vehicle with a controlled substance, namely cocaine, a Class B felony, I.C. § 9-30-5-5;

and Count III, causing the death of another person while operating a motor vehicle with a

controlled substance, namely marijuana, a Class B felony, I.C. § 9-30-5-5. In December

2010, Davis entered into a third plea agreement but withdrew from that agreement as

well. On September 16, 2011, the State filed a second amendment to its Information and

added Count IV, operating while intoxicated, a Class C felony, I.C. § 9-30-5-5.

      On October 4 through October 7, 2011 a jury trial was conducted. Prior to

handing the case to the jury, Davis tendered a handwritten proposed jury instruction

relating to unpreserved evidence, which the trial court declined to give. At the close of

the evidence, the jury found Davis guilty on all four Counts. On October 26, 2011, a

sentencing hearing was held. During the hearing, the trial court vacated the guilty verdict

on Counts II through IV based on double jeopardy grounds and sentenced Davis to

eighteen years incarcerated with three years suspended on Count I.

      Davis now appeals. Additional facts will be provided as necessary.

                            DISCUSSION AND DECISION

                               I. Admission of Blood Test

      Davis contends that the trial court erroneously admitted the blood test taken by

Officer Shepherd at Parkview Hospital after he had obtained a search warrant. Because

Davis failed to object to its admission during trial, he waived the argument. See Lewis v.

State, 755 N.E.2d 1116, 1122 (Ind. Ct. App. 2001) (failure to make a contemporaneous

objection to the admission of evidence at trial results in waiver of the error on appeal).


                                            6
Davis now attempts to avoid waiver by claiming that the admission of the evidence

constituted fundamental error. The fundamental error exception is very narrow and is

defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered

impossible. Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans. denied. To

be considered fundamental, an error “must constitute a blatant violation of basic

principles, the harm, or potential for harm must be substantial, and the resulting error

must deny the defendant fundamental due process.” Id.

       Davis’ main contention on the admissibility of the blood test relates to the chain of

custody. Specifically, Davis argues that while Officer Shepherd obtained a blood and

urine sample at the hospital pursuant to a search warrant, no witness was present when

Officer Shepherd sealed the samples, and thus, it is doubtful that the State attained a

proper chain of custody.

       The State bears a higher burden to establish the chain of custody of fungible

evidence, such as blood and hair samples, whose appearance is indistinguishable to the

naked eye. Troxell v. State, 778 N.E.2d 811, 814 (Ind. 2002). To establish a proper

chain of custody, the State must give reasonable assurances that the evidence remained in

an undisturbed condition. Id. However, the State need not establish a perfect chain of

custody and once the State “strongly suggests” the exact whereabouts of the evidence,

any gaps go to the weight of the evidence and not to admissibility. Id. Moreover, there is

a presumption of regularity in the handling of evidence by officers and there is a

presumption officers exercise due care in handling their duties.          Id.   To mount a




                                             7
successful challenge to the chain of custody one must present evidence that does more

than raise a mere possibility that the evidence may have been tampered with. Id.

       Here, the evidence establishes that Hack drew Davis’ blood upon receipt of the

search warrant; Officer Shepherd videotaped the blood draw. When Hack was finished,

she handed the vials to Officer Shepherd. At trial, Hack explained that the blood tubes

were vacuum sealed and automatically resealed when the needle was withdrawn from the

vials so nothing could come out. Officer Shepherd then completed the paperwork,

packaged up the samples, and sealed them. No witness was present during this process.

Officer Shepherd took the samples to the post office and mailed them to the State’s

toxicology lab by certified mail. While Officer Shepherd testified that he shipped the

samples immediately around 8 a.m., the post office time stamp for the certified mailing

shows a mailing time of 9:49 a.m.

       Approximately a week later, on March 9, 2010, the samples were received by the

State’s toxicology lab and placed in the refrigerator. Evidence reflects that when the lab

received the blood sample, it was sealed, not coagulated, and no irregularities were noted.

Trial testimony explained that the week long delay in refrigeration did not affect the

quality of the blood sample as it did not need to be refrigerated, nor did the leaking urine

vial pose any contamination problem for the blood sample.           Further documentation

identified the technicians who handled the sample, the testing they performed, and the

results thereof.

       While we have previously held that “it is incumbent upon the State to present

evidence of the physician, nurse or someone in authority who was present at the taking of


                                             8
the blood establishing a chain of custody of the specimen to the laboratory where the

testing is conducted,” we have never imposed a similar burden with respect to sealing the

package containing the blood sample. Culver v. State, 727 N.E.2d 1062, 1068 (Ind.

2000) (emphasis added). Nor will we impose this requirement today. As the sealing of

evidentiary material falls squarely within an officer’s duty of handling evidence, we

conclude that there is a presumption that Officer Shepherd exercised due care when

sealing the package. The mere fact that the mail certification indicated 9:49 a.m. rather

than the 8 a.m. as testified to by Officer Shepherd only goes to the weight of the

evidence, not its admissibility. We conclude that the State presented a proper chain of

custody and therefore the trial court did not err, let alone make a fundamental error, in the

admission of the blood sample.

                              III. Sufficiency of the Evidence

       Next, Davis contends that the State presented insufficient evidence establishing

beyond a reasonable doubt that he was guilty of operating a vehicle while intoxicated

causing death, a Class B felony.

       Our standard of review with regard to sufficiency claims is well settled. In

reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or

judge the credibility of the witnesses. Perez, 872 N.E.2d at 212-213. We will consider

only the evidence most favorable to the verdict and the reasonable inferences drawn

therefrom and will affirm if the evidence and those inferences constitute substantial

evidence of probative value to support the judgment. Id. at 213. A conviction may be

based upon circumstantial evidence alone.        Id.   Reversal is appropriate only when


                                             9
reasonable persons would not be able to form inferences as to each material element of

the offense. Id.

       To convict Davis of operating while intoxicated causing death, a Class B felony,

the State was required to prove that Davis, at least twenty-one years of age, caused the

death of Anderson when operating a motor vehicle with an alcohol concentration

equivalent to at least fifteen-hundredths (0.15) gram of alcohol per one hundred

milliliters of Davis’ blood. See I.C. § 9-30-5-5(b)(1). Davis focuses his argument on the

claim that the State failed to establish the requisite blood alcohol concentration.

Specifically, he contends that the facts and circumstances regarding his blood sample and

testing are too unreliable to be reasonably relied upon by the jury to support his

convictions.

       First, we already determined above that the blood sample taken by Officer

Shepherd pursuant to a search warrant was properly obtained, sealed, and preserved

within the chain of custody guidelines. The testing of this blood sample indicated that

Davis had a blood alcohol content of .25, well above the statutory requirement of .15.

Moreover, the State presented evidence that several Officers smelled the odor of alcohol

on Davis, they noticed that his eyes were bloodshot, his speech was slurred, and he was

confused. Based on this evidence, the fact finder could reasonably find that the State

established the statutory blood alcohol concentration beyond a reasonable doubt.

Therefore, we affirm Davis’ conviction.

                                  IV. Jury Instruction




                                           10
       Davis argues that the trial court abused its discretion when it rejected his proposed

handwritten jury instruction on destruction of evidence. It is well established by our

court that instructing the jury is within the discretion of the trial court. Perez, 872 N.E.2d

at 210. Jury instructions are to be considered as a whole and in reference to each other;

error in a particular instruction will not result in reversal unless the entire jury charge

misleads the jury as to the law in the case. Id. In reviewing a challenge to a jury

instruction, this court considers whether the instruction correctly states the law, whether

there was evidence in the record to support the giving of the instruction, and whether the

substance of the tendered instruction is covered by other instructions. Hubbard v. State,

742 N.E.2d 919, 921 (Ind. 2001).

       Davis’ proposed jury instruction read as follows:

       If you determine that the State has lost, destroyed or failed to preserve
       evidence whose contents or quality are important to the issues in this case,
       and that the explanation for the loss, destruction or failure to preserve is
       inadequate, then you should assume that the evidence was unfavorable to
       the State. This fact alone may leave you with a reasonable doubt about the
       accused’s guilt.

(Appellant’s App. p. 375). Referencing the blood sample ordered by Dr. Smith and

tested by Parkview Hospital, Davis asserts that once the test results were released to law

enforcement officers, the blood sample became evidence. He maintains that because this

sample was subsequently destroyed by the hospital, its destruction amounted to the

spoliation of evidence and warranted the tender of the proposed instruction.

       Our review of the record indicates that no evidence was presented that this

particular sample was actually destroyed. The hospital’s certified medical technician,



                                             11
Leslie Robertson (Robertson), who tested the blood sample after it was drawn, testified

that if alcohol is detected in a specific specimen, the specimen is frozen for up to three

months in the event re-testing is necessary. Pursuant to hospital protocol, the hospital

disposes of samples after three months; however, she did not know whether the

destruction actually happened.     The hospital’s chemistry lead technologist, Richard

Brown (Brown), confirmed the hospital’s protocol to freeze a positive blood alcohol

sample for up to three months “in case there would be a request for a recheck from a

different laboratory to confirm the alcohol result.” (Tr. pp. 637-38). Brown added that

pursuant to general protocol the samples would be destroyed at the end of three months

but the hospital has the ability to hold samples as long as they want. However, no

evidence was presented that the sample of Davis’ blood was actually destroyed in

accordance with the hospital’s general procedure or could no longer be found in the

hospital’s storage unit. Because this evidence was lacking, there was no evidence in the

record that supported the giving of the instruction.

       Even if we were to assume, arguendo, that the sample was destroyed pursuant to

hospital protocol, the presented evidence would still not support the tender of the

instruction. Although the proposed instruction clearly states that “the State has lost,

destroyed, or failed to preserve evidence,” there is no evidence that the State ever had

possession of the sample that was ordered by Dr. Smith and stored in accordance with

Parkview Hospital guidelines.      Brown testified that the hospital retains the sample,

freezes it, and at the end of the three month period the samples are incinerated by the

hospital.   Any test results emanating from the sample can be obtained by law


                                             12
enforcement, but the sample itself is kept by the hospital. No evidence was presented to

contradict Brown’s testimony or to establish that the State ever had this particular sample

in its possession. As there was no evidence supporting the giving of the proposed

instruction, the trial court did not abuse its discretion when it rejected the instruction.

                                        V. Sentencing

       Lastly, Davis contends that the trial court abused its discretion when it imposed an

eighteen year sentence with three years suspended for his conviction for operating while

intoxicated causing death, a Class B felony. A person who commits a Class B felony

shall be imprisoned for a fixed term of between six and twenty years, with the advisory

sentence being ten years. I.C. § 35-50-2-5.

       As long as the sentence is within the statutory range, it is subject to review only

for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), aff’d on

reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion occurs if the decision is

clearly against the logic and effect of the facts and circumstances before the court, or the

reasonable, probable, and actual deductions to be drawn therefrom. Id. Although a trial

court may have acted within its lawful discretion in determining a sentence, Appellate

Rule 7(B) provides that the appellate court may revise a sentence authorized by statute if

the appellate court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender. Id. On appeal, it is the defendant’s burden to

persuade us that the sentence imposed by the trial court is inappropriate. Childress v.

State, 848 N.E.2d 1073, 1080 (Ind. 2006).




                                              13
       With respect to the nature of his crime, Davis claims that “[t]here is nothing

regarding the circumstances of the offense that are remarkable.” (Appellant’s Br. p. 29).

While we agree that the nature of Davis’ crime is not remarkable, it is nevertheless very

serious. Davis’ blood alcohol content was .25, well above the statutory limit of .15.

Additionally, traces of marijuana and cocaine were found in Davis’ blood.

       Turning to his character, we note that Davis has an extensive criminal record

dating back to 1994. His record includes two felony convictions: a Class D felony theft

in 1995 and a Class D felony resisting law enforcement in 2004.             He has prior

misdemeanor convictions for public intoxication, possession of marijuana, and operating

while intoxicated in 2000. Davis’ record includes prior crimes of violence with battery

misdemeanor convictions in 1998, 2003, 2005, and 2006 as well as other misdemeanor

convictions for trespass in 1995, 1996, and 2003, conversion in 1999, and check

deception in 2005. He has previously violated his terms of probation. Davis’ record

clearly speaks of repeated criminal activity that has continued to the present day with no

significant period of law-abiding behavior.             Furthermore, Davis’ pre-sentence

investigation report indicates that he is at a high risk to re-offend.

       Moreover, it is telling that even though Davis had a blood alcohol content of .25 as

well as previous convictions involving drugs and alcohol, he continues to insist that his

alcohol use has never been a problem. Despite the clear evidence of guilt and his three

attempts to execute a guilty plea, Davis refused to accept any responsibility for his

actions.




                                              14
       Based on the evidence before us, we conclude that the sentence is not

inappropriate and affirm the trial court’s imposition of Davis’ sentence.

                                        CONCLUSION

       Based on the foregoing, we conclude that: (1) the trial court did not abuse its

discretion by admitting Davis’ blood test; (2) the State presented sufficient evidence

beyond a reasonable doubt to support Davis’ conviction; (3) the trial court properly

refused to tender Davis’ proposed jury instruction on unpreserved evidence; and (4) the

trial court properly sentenced Davis.

       Affirmed.

NAJAM, J. and DARDEN, S. J. concur




                                            15
