MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                            FILED
regarded as precedent or cited before any                   Apr 25 2017, 8:15 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
John R. Watkins                                          Curtis T. Hill, Jr.
Arata Law Firm                                           Attorney General of Indiana
Fort Wayne, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

John D. Anders,                                          April 25, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         17A05-1611-CR-2634
        v.                                               Appeal from the DeKalb Superior
                                                         Court
State of Indiana,                                        The Honorable George E. Brown,
Appellee-Plaintiff.                                      Senior Judge
                                                         Trial Court Cause No.
                                                         17D01-1604-CM-271



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 1 of 11
                                Case Summary and Issue
[1]   Following a jury trial, John Anders was convicted of operating a vehicle with

      an alcohol concentration equivalent (“ACE”) greater than .08, a Class C

      misdemeanor. Anders appeals his conviction, raising three issues for our

      review, which we consolidate and restate as: 1) whether the trial court abused

      its discretion in admitting and excluding certain evidence, and 2) whether the

      trial court abused its discretion in instructing the jury. Concluding the trial

      court neither abused its discretion in admitting and excluding evidence nor in

      instructing the jury, we affirm.



                            Facts and Procedural History
[2]   In the early afternoon of April 15, 2016, Dekalb County Sheriff Deputy

      Courtney Fuller approached Anders after he parked in a school parking lot.

      Deputy Fuller observed an open beer container in the middle console of

      Anders’ vehicle and a case of beer in the passenger seat. Deputy Fuller also

      recognized an odor of alcohol coming from Anders’ breath. Anders admitted

      to having a few drinks and claimed he only stopped at the school to urinate.

      Deputy Fuller then transported Anders to the county jail for a breath test.


[3]   Deputy Rick Short administered the breath test to Anders. Anders did not blow

      hard enough during the first test. Deputy Short then instructed Anders to

      “blow like a motherf***er” and twice re-administered the test. Transcript at 91.




      Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 2 of 11
      The results of the two subsequent tests indicate Anders’ ACE was

      approximately .11.


[4]   On April 21, 2016, the State charged Anders with operating a vehicle with an

      ACE greater than .08, a Class C misdemeanor. During trial, the trial court

      admitted evidence of Anders’ breath test results over his objection. In addition,

      Anders sought to introduce evidence showing he was not impaired. The State

      objected on relevancy grounds, which the trial court sustained. A jury found

      Anders guilty as charged. This appeal ensued. Additional facts will be added

      as necessary.



                                 Discussion and Decision
                     I. Admission and Exclusion of Evidence
                                      A. Standard of Review
[5]   The admission or exclusion of evidence falls within the sound discretion of the

      trial court and we therefore review a trial court’s determination as to the

      admissibility of evidence for an abuse of discretion. Swingley v. State, 739

      N.E.2d 132, 133 (Ind. 2000). A trial court abuses its discretion if its decision is

      clearly against the logic and effect of the facts and circumstance before the

      court. Johnson v. State, 70 N.E.3d 890, 895-96 (Ind. Ct. App. 2017), trans.

      pending.




      Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 3 of 11
                                       B. Breath Test Results
[6]   Anders contends the trial court abused its discretion in admitting evidence of

      his breath test results. Specifically, he claims Deputy Short did not follow

      approved techniques for administering the tests when explaining he needed to

      “blow like a motherf***er[,]” tr. at 91, and therefore the State failed to meet its

      burden of establishing a proper foundation to admit the results of the test into

      evidence. We disagree.

[7]           Results of chemical breath tests are not admissible if the test
              operator, test equipment, chemicals used in the test, or
              techniques used in the test have not been approved in accordance
              with the rules adopted by the Department of Toxicology. Ind.
              Code § 9-30-6-5(d). The admission of chemical breath test results
              is left to the sound discretion of the trial court and will be
              reviewed for an abuse of discretion. Because the State is the
              party offering the results of the breath test, it has the burden of
              establishing the foundation for admitting the results. Therefore,
              the State must set forth the proper procedure for administering a
              chemical breath test and show that the operator followed that
              procedure.


      Fields v. State, 807 N.E.2d 106, 109 (Ind. Ct. App. 2004) (internal citations

      omitted), trans. denied. The procedure for administering a chemical breath test,

      as promulgated by the Department of Toxicology in the Indiana Administrative

      Code, provides in relevant part, “STEP TEN: When ‘Please blow’ appears on

      the instrument display, place a new mouthpiece in the breath tube. Instruct the

      subject to deliver a breath sample. Remove mouthpiece when prompted by the




      Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 4 of 11
       instrument display and discard.” 260 Ind. Admin. Code 2-4-2(a) (emphasis

       added).


[8]    Here, Deputy Short explained the testing procedures to Anders, and when

       Anders did not blow sufficiently, Deputy Short further instructed him to “blow

       like a motherf***er.” Tr. at 91. Thus, although this may have been a rather

       vulgar way of instructing Anders, Deputy Short’s explanation satisfied the

       procedures promulgated by the Department of Toxicology by instructing

       Anders to deliver a breath sample.1 We conclude the trial court did not abuse

       its discretion in admitting evidence of Anders’ breath test results.


                                        C. Impairment Evidence
[9]    Anders also challenges the trial court’s decision to exclude evidence he claims

       shows he was not impaired. Specifically, he claims such evidence is relevant,

       and in the alternative, the State opened the door for the admission of such

       evidence. We disagree.


[10]   Evidence is relevant if it has a tendency to make a fact more or less probable

       than it would be without the evidence and the fact is of consequence in

       determining the action. Ind. Evidence Rule 401. Here, the State charged




       1
        Anders’ argument relies heavily on the Indiana State Department of Toxicology Manual, which instructs
       police officers to explain to individuals taking a breath test to take a deep breath, tightly purse their lips
       around the test tube, and blow long and steady until the officer stops them. However, this specific instruction
       contained within the manual does not appear to be promulgated into any rules of law. This claim fails.

       Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017             Page 5 of 11
Anders with operating a motor vehicle with an ACE greater than .08 pursuant

to Indiana Code section 9-30-5-1(a), which provides,


         A person who operates a vehicle with an alcohol concentration
         equivalent to at least eight-hundredths (.08) gram of alcohol but
         less than fifteen-hundredths (0.15) gram of alcohol per:
         (1) one hundred (100) milliliters of the person’s blood; or
         (2) two hundred (210) liters of the person’s breath;
         commits a Class C misdemeanor.


Despite there being no requirement the State prove Anders was impaired in

order to secure a conviction under this section, Anders contends evidence

pertaining to his impairment is relevant. First, he cites to multiple cases where

we addressed convictions for driving with an illegal ACE and noted evidence

showing the defendant was impaired. See Fields, 807 N.E.2d at 113-14; Disbro v.

State, 791 N.E.2d 774, 776 (Ind. Ct. App. 2003), trans. denied; Kopas v. State, 699

N.E.2d 1193, 1194-95 (Ind. Ct. App. 1998). However, contrary to Anders’

assertion, we did not hold in any of the cases cited by him that evidence of

impairment, or lack thereof, is relevant to the offense of driving with an illegal

ACE as a matter of law. In addition, we agree with the State that Anders was

only charged and convicted of driving with an illegal ACE, not driving while

intoxicated.2 Thus, the issue of Anders’ impairment was not of consequence in




2
 We further note Anders also argues evidence of his lack of impairment was relevant to the proceedings
because such evidence would have the effect of diminishing the probative value of his breath test results.
Stated differently, Anders alleges the introduction of this evidence would allow him to attack the credibility
of the breath test. In support, he cites a 1983 Arizona Supreme Court Case holding evidence of a defendant’s
sobriety may be relevant to the jury’s determination of whether the breath test results were an accurate
measure of the defendant’s ACE at the time of the offense. Fuenning v. Superior Court, 680 P.2d 121, 132

Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017             Page 6 of 11
       determining the action. See Evid. R. 401. We conclude the trial court’s

       decision to exclude the evidence on relevancy grounds was not clearly against

       the logic and effect of the facts and circumstances of the case. 3


[11]   Nonetheless, we further observe,


                Indiana courts have long recognized that otherwise inadmissible
                evidence may become admissible if a party opens the door to
                questioning on that evidence in order to correct a deceptively
                incomplete disclosure. In order for this to occur, the party
                opening the door must leave the trier of fact with a false or
                misleading impression of the facts related.


       Valdez v. State, 56 N.E.3d 1244, 1249 (Ind. Ct. App. 2016) (citations omitted),

       trans. denied. Anders contends the State opened the door to evidence of his lack

       of impairment when it elicited testimony from Deputy Fuller showing Anders

       was in possession of an open beer and a case of beer, Anders smelled of alcohol,

       and Anders admitted to having a couple drinks. We disagree, however, the

       State’s evidence left the jury with a false or misleading impression of the facts

       related. Rather, the State’s evidence of impairment was not at issue and such

       evidence merely established a timeline of events leading up to Deputy Short

       administering multiple breath tests to Anders, tests which ultimately provided




       (Ariz. 1983). In addition, he cites to a 2015 California Supreme Court Case holding evidence of impairment
       may be relevant and circumstantial evidence used to bolster the results of a breath test. See Coffey v. Shiomoto,
       345 P.3d 896, 907 (Cal. 2015). However, Anders does not cite to any Indiana authority holding the same
       and we decline Anders’ invitation for us to do so today.
       3
         For this reason, Anders’ claim that the trial court’s decision abridged his right to provide a complete defense
       also fails. See Evid. R. 402 (“Irrelevant evidence is not admissible.”).

       Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017                Page 7 of 11
       the evidence sufficient to establish Anders operated a vehicle with an ACE

       greater than .08. We conclude the trial court did not abuse its discretion in

       excluding evidence of Anders’ lack of impairment. 4


                                          II. Jury Instructions
[12]   Anders contends the trial court abused its discretion in instructing the jury.

       Again, we disagree.


                The purpose of a jury instruction is to inform the jury of the law
                applicable to the facts without misleading the jury and to enable
                it to comprehend the case clearly and arrive at a just, fair, and
                correct verdict. We review a trial court’s instructions to the jury
                for an abuse of discretion. An abuse of discretion arises when
                the instruction is erroneous and the instructions taken as a whole
                misstate the law or otherwise mislead the jury. When evaluating
                the jury instructions on appeal this Court looks to whether the
                tendered instructions correctly state the law, whether there is
                evidence in the record to support giving the instruction, and
                whether the substance of the proffered instruction is covered by
                other instructions.


       Isom v. State, 31 N.E.3d 469, 484-85 (Ind. 2015) (citations and internal

       quotation marks omitted), cert. denied, 136 S.Ct. 1161 (2016).


[13]   Here, the State charged and Anders was convicted pursuant to Indiana Code

       section 9-30-5-1(a), which provides a person who drives with an ACE greater




       4
         Although we see no error, we take this opportunity to note any error in the exclusion of Anders’ evidence
       was harmless. As noted above, the State need only prove Anders drove with an ACE greater than .08 and
       the admission of Anders’ breath test results was sufficient to convict him.

       Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017            Page 8 of 11
       than .08 commits a Class C misdemeanor. In addition, Indiana Code section 9-

       30-6-15(b) states,


               If, in a prosecution for an offense under IC 9-30-5, evidence
               establishes that:
                       (1) a chemical test was performed on a test sample taken
                       from the person charged with the offense within the period
                       of time allowed for testing under section 2 of this chapter;
                       and
                       (2) the person charged with the offense had an alcohol
                       concentration equivalent to at least eight-hundredths (0.08)
                       gram of alcohol. . .
               the trier of fact shall presume that the person charged with the
               offense had an alcohol concentration equivalent to at least eight-
               hundredths (0.08) . . . at the time the person operated the vehicle.
               However, this presumption is rebuttable.


[14]   During trial, the State submitted evidence that Deputy Short administered a

       breath test to Anders within the time allowed, see Ind. Code § 9-30-6-2(c), and

       Anders’ ACE was greater than .08. The trial court then instructed the jury as

       follows:

               Before you may convict the Defendant, the State must have
               proved each of the following elements beyond a reasonable
               doubt:
                       1. The Defendant, John D. Anders,
                       2. operated a vehicle
                       3. with an alcohol concentration equivalent to at least
               eight-hundredths (0.08) . . . .
               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               Operating a Vehicle With an Unlawful Alcohol Concentration in
               Blood or Breath, a Class C Misdemeanor.


       Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 9 of 11
                        (a) If you make the following three findings:
                               (1) a chemical test was performed on a test sample
                               taken from the Defendant; and
                               (2) the chemical test was performed within three
                               hours of the Defendant’s alleged operation of a
                               motor vehicle; and
                               (3) the test results indicated that the Defendant had
                               an alcohol concentration of at least eight-
                               hundredths (0.08) . . .
               then
                      (b) you may infer that the Defendant had an alcohol
                      concentration of at least eight-hundredths (0.08) . . . at the
                      time the Defendant is alleged to have operated the motor
                      vehicle.
               If you do make the findings (1) though (3) listed above under
               subpart (a), however, the law does not require you to make the
               inference of an alcohol concentration of at least eight-hundredths
               (0.08) . . . at the time the Defendant is alleged to have operated
               the motor vehicle. You are free to accept the inference or reject
               it.


       Appendix to Brief of Appellant, Volume 2 at 79-80 (emphasis added).


[15]   On appeal, Anders takes issue with the portion of the instruction emphasized

       above. Specifically, he claims this portion departs from Indiana Code sections

       9-30-5-1(a) and (b) and had the effect of “reliev[ing] the State of its burden to

       prove unlawful [ACE] at the time of testing.” Reply Brief of Appellant at 7. He

       further explains,

               The trial court’s instruction states that if ‘results indicate’ an
               unlawful [ACE] at the time of testing, then the jury may presume
               an unlawful [ACE] at the time of operation. On the other hand,
               the statute says that if the person charged with the offense ‘had’


       Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 10 of 11
               an unlawful [ACE] at the time of testing, then unlawful [ACE] at
               the time of operation shall be presumed.


       Amended Brief of Appellant at 20. However, the final instructions plainly

       provide the jury, upon finding a breath test occurred within three hours of

       Anders’ operation of the vehicle and test results show Anders’ ACE was greater

       than 0.08, the right to “infer that the Defendant had an alcohol concentration of

       at least eight-hundredths (.08) . . . of his breath at the time the Defendant is alleged

       to have operated the motor vehicle.” App., Vol. 2 at 80 (emphasis added). Thus,

       we cannot accept Anders’ assertion that the instructions relieve the State of the

       obligation to meet its burden of proving he drove with an ACE greater than .08.

       The trial court did not abuse its discretion in instructing the jury.



                                               Conclusion
[16]   The trial court did not abuse its discretion in admitting evidence of Anders’

       breath results, excluding evidence of his lack of impairment, or in instructing

       the jury. Accordingly, we affirm.


[17]   Affirmed.


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




       Court of Appeals of Indiana | Memorandum Decision 17A05-1611-CR-2634 | April 25, 2017   Page 11 of 11
