MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                              FILED
this Memorandum Decision shall not be
                                                               Dec 20 2016, 9:33 am
regarded as precedent or cited before any
court except for the purpose of establishing                        CLERK
                                                                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
Mark K. Phillips                                        Gregory F. Zoeller
Boonville, Indiana                                      Attorney General of Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Byron Early,                                            December 20, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        87A01-1604-CR-992
        v.                                              Appeal from the Warrick Superior
                                                        Court
State of Indiana,                                       The Honorable Amy Steinkamp
Appellee-Plaintiff.                                     Miskimen, Magistrate
                                                        Trial Court Cause No.
                                                        87D01-1508-CM-558



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016   Page 1 of 10
[1]   Byron Early appeals his conviction for operating a vehicle with an ACE of .08

      as a class C misdemeanor. Early raises three issues which we consolidate and

      restate as:


              I.      Whether the trial court abused its discretion in admitting
                      certain evidence; and

              II.     Whether the evidence is sufficient to sustain his conviction.


      We affirm.


                                      Facts and Procedural History

[2]   On August 5, 2015, Warrick County Sheriff’s Deputy Daniel Boyd Bullock

      received a dispatch regarding a possible intoxicated driver in a particular vehicle

      on Libbert Road. Deputy Bullock observed a vehicle matching the description

      traveling east on High Pointe, followed the vehicle, confirmed the license plate,

      “saw him actually run a red light going east across Bell Road,” activated his

      emergency lights, and conducted a traffic stop around midnight. Transcript at

      17. Deputy Bullock approached the passenger side of the vehicle, smelled the

      odor of alcoholic beverages coming from Early, and observed that his eyes were

      bloodshot and glassy.


[3]   Deputy Bullock asked Early to step out of the vehicle and saw a cooler full of

      beer in between the two seats and an open container in the driver’s side door.

      Deputy Bullock asked him whether he would take a field sobriety test, and

      Early responded affirmatively. Early failed the horizontal gaze nystagmus test.

      Deputy Bullock then explained the walk and turn test, and Early lost his

      Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016   Page 2 of 10
      balance while the instructions were given and was swaying. Early attempted

      the test on dry level ground, stopped walking to help balance himself, stepped

      off the line, and raised his arms more than six inches. He also failed the one leg

      stand test.


[4]   Deputy Bullock then read Early an implied consent advisement and asked him

      if he would be willing to take a chemical test, and he agreed to do so. Deputy

      Bullock placed him in handcuffs, patted him down for weapons, placed him in

      his patrol vehicle, and transported him to the Warrick County Jail. Deputy

      Bullock checked to see if Early had anything to eat or drink or had any

      substances in his mouth, waited at least fifteen minutes, and then collected two

      samples from Early. The result of the test revealed “0.129 g/210L,” and the

      printout indicated that Deputy Bullock began observing Early at 12:41 a.m. and

      showed a result time of 1:03 a.m. State’s Exhibit 7.


[5]   On August 6, 2015, the State charged Early with Count I, operating a vehicle

      with an ACE of .08 as a class C misdemeanor, and Count II, operating a

      vehicle while intoxicated as a class C misdemeanor. On March 2, 2016, the

      court held a bench trial. Deputy Bullock testified that he was certified to

      operate the EC/IR II instrument which analyzes the alcohol content in a

      sample. Without objection, Deputy Bullock testified that he asked Early if he

      had been drinking after approaching his car and that he said he “had a couple.”

      Transcript at 17. After the testimony regarding the field sobriety tests, the

      prosecutor asked Deputy Bullock if Early volunteered any statements. Early’s

      counsel objected to testimony regarding Early’s statements based upon the lack

      Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016   Page 3 of 10
      of a Miranda warning, and the court overruled the objection. Deputy Bullock

      testified that Early volunteered that he was at Piston’s and that he needs to

      learn to say no because his friends were buying him drinks.


[6]   Deputy Bullock testified that he was in the room with Early prior to his

      delivering a sample into the EC/IR II instrument for a minimum of fifteen

      minutes. On cross-examination, Deputy Bullock testified that a printout

      indicated that he moved his car out of the sally port at 12:34 a.m. and that the

      breath test started at 12:42 a.m. On redirect examination, he testified that he

      observed Early for at least fifteen minutes prior to Early’s delivery of a sample

      into the EC/IR II instrument and that he had control of Early. Early testified

      that he operated a vehicle on August 5, 2015, and that he did not run a red light

      that evening.


[7]   On March 4, 2016, the court found Early guilty as charged and issued a Verdict

      which contained Findings of Fact and Conclusions of Law and entered

      judgment of conviction on both counts. On March 31, 2016, the court held a

      sentencing hearing, merged Counts I and II and sentenced Early to sixty days at

      the Warrick County Security Center suspended to six months of reporting

      probation. 1




      1
        We note that in his statement of case, Early discusses only the charge of operating a vehicle with an ACE of
      .08 or more in violation of Ind. Code § 9-30-5-1(a), which provides that “[a] person who operates a vehicle
      with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than
      fifteen-hundredths (0.15) gram of alcohol per . . . two hundred ten (210) liters of the person’s breath; commits
      a Class C misdemeanor.” Early does not mention Count II, operating a vehicle while intoxicated as a class C
      misdemeanor. We also note that Early did not request a copy of the transcript from the March 31, 2016

      Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016            Page 4 of 10
                                                     Discussion

                                                            I.


[8]   The first issue is whether the trial court abused its discretion in admitting the

      breath test. Generally, we review the trial court’s ruling on the admission or

      exclusion of evidence for an abuse of discretion. Roche v. State, 690 N.E.2d

      1115, 1134 (Ind. 1997), reh’g denied. We reverse only when the decision is

      clearly against the logic and effect of the facts and circumstances. Joyner v.

      State, 678 N.E.2d 386, 390 (Ind. 1997), reh’g denied. We may affirm a trial

      court’s decision regarding the admission of evidence if it is sustainable on any

      basis in the record. Barker v. State, 695 N.E.2d 925, 930 (Ind. 1998), reh’g denied.

      Even if the trial court’s decision was an abuse of discretion, we will not reverse

      if the admission constituted harmless error. Fox v. State, 717 N.E.2d 957, 966

      (Ind. Ct. App. 1999), reh’g denied, trans. denied.


[9]   Early argues that Deputy Bullock did not have reasonable suspicion to initiate a

      traffic stop. He argues that the stop was improper because Deputy Bullock did

      not observe him swerving and, while he testified that he observed Early run a

      red light, he agreed that there was no red light between Libbert Road and Bell

      Road on High Pointe. The State argues that, while Early cites to Deputy

      Bullock’s testimony acknowledging the lack of a traffic light to suggest that he




      sentencing hearing or include a copy of any sentencing order or abstract of judgment. Based upon Early’s
      brief, which refers to only Count I, operating a vehicle with an ACE of .08 or more, we limit our discussion
      to his arguments on that charge.

      Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016          Page 5 of 10
       recanted his claim of seeing Early drive through a red light, Deputy Bullock

       testified that Early drove through a red light “across Bell Road,” not after Bell

       Road. Appellee’s Brief at 13 (quoting Transcript at 17). The State also points

       to Deputy Bullock’s testimony on redirect.


[10]   To the extent Early suggests that the trial court abused its discretion by

       admitting evidence obtained as a result of the stop, we note that Deputy Bullock

       testified that he observed Early run a red light going east across Bell Road and

       that there was a red light at Bell Road. Based upon the record, we cannot say

       that the stop was improper. See Meredith v. State, 906 N.E.2d 867, 870 (Ind.

       2009) (“An officer’s decision to stop a vehicle is valid so long as his on-the-spot

       evaluation reasonably suggests that lawbreaking occurred.”).


[11]   Early appears to argue that the trial court abused its discretion by considering

       the breath test because, while Deputy Bullock testified that a suspect must be

       watched for a period of fifteen minutes before administering a breath test and

       that he initially testified that he did so, he later testified on cross-examination

       that the printout from the breath test indicated that the test began at 12:42 a.m.,

       and that, if he was moving his car out of the sally port at 12:34 a.m., there were

       only eight minutes between 12:34 a.m. and 12:42 a.m. He concedes that he

       was restrained and most likely unable to place a foreign object in his mouth at

       this point in time, but asserts that “it is just another example of Deputy

       Bullock’s biased and unreliable testimony.” Appellant’s Brief at 17.


[12]   The Indiana Administrative Code provides:


       Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016   Page 6 of 10
               The approved method that shall be followed in making an
               analysis of breath for ethanol using the Intox EC/IR II breath
               test instrument is as follows:


               STEP ONE: The person to be tested must:


                       (A) have had nothing to eat or drink;


                       (B) not have put any foreign substance into his or her
                       mouth or respiratory tract; and


                       (C) not smoke;


               within fifteen (15) minutes before the time the first breath sample
               is taken or at any time from the taking of the first breath sample
               until after the taking of the final breath sample.


       260 IAC 2-4-2.


[13]   On direct examination, Deputy Bullock testified that he checked to see if Early

       had anything to eat or drink or had any substances in his mouth, waited at least

       fifteen minutes, and then collected two samples from Early. He testified that he

       was in the room with Early prior to him delivering a sample into the EC/IR II

       instrument for a minimum of fifteen minutes. On cross-examination, he

       testified that the time of eight minutes was not contradictory to his earlier

       testimony that he was in the room with Early for fifteen minutes before he

       began the test. He then clarified that he begins observing when the test begins.

       On redirect examination, Deputy Bullock testified that he observed Early for at

       least fifteen minutes prior to him delivering a sample into the EC/IR II

       Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016   Page 7 of 10
       instrument and that he had control of him. While the printout from the EC/IR

       II instrument indicated a “Test Time” of 12:42 a.m., it also indicated that

       Deputy Bullock began observing Early at 12:41 a.m., that Early provided breath

       samples at 1:00 a.m. and 1:03 a.m., and a result of “0.129 g/210L” with a result

       time of 1:03 a.m. State’s Exhibit 7. Based on the record, we cannot say the

       trial court abused its discretion by admitting the results of the breath test.2


                                                              II.


[14]   The next issue is whether the evidence is sufficient to sustain Early’s conviction

       for operating a vehicle with an ACE of .08 as a class C misdemeanor. Early

       argues that the State failed to support its case with relevant evidence.


[15]   We observe that the trial court entered findings of fact and conclusions thereon.

       “[I]n a criminal case the trial court is not required to make either findings of

       fact or conclusions of law.” Dozier v. State, 709 N.E.2d 27, 30 (Ind. Ct. App.

       1999) (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)). Thus, the focus

       of our inquiry is not upon the remarks the trial court makes in a bench trial after

       having reached the conclusion that a defendant is guilty. Id. Rather the

       question is whether the evidence presented to the trial court as fact-finder was

       sufficient to sustain the conviction. Id. We neither reweigh the evidence nor




       2
         To the extent Early argues that Deputy Bullock’s testimony regarding any statements made by him should have
       been excluded because Deputy Bullock was required to read Early his Miranda rights, we conclude that any error in
       admitting such evidence was harmless error with respect to his conviction for operating a vehicle with an ACE of
       .08.



       Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016             Page 8 of 10
       judge the credibility of witnesses. Id. (citing Johnson v. State, 671 N.E.2d 1203,

       1209 (Ind. Ct. App. 1996), trans. denied). Rather, we examine only the evidence

       most favorable to the State along with all reasonable inferences to be drawn

       therefrom. Id. If there is substantial evidence of probative value to sustain the

       conviction, then it will not be set aside. Id.


[16]   The offense of operating a vehicle with an ACE of .08 as a class C

       misdemeanor is governed by Ind. Code § 9-30-5-1, which provides that “[a]

       person who operates a vehicle with an alcohol concentration equivalent to at

       least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths

       (0.15) gram of alcohol per . . . two hundred ten (210) liters of the person’s

       breath; commits a Class C misdemeanor.”


[17]   The record reveals that Early operated a vehicle and that Deputy Bullock

       observed Early run a red light, conducted a traffic stop, smelled the odor of

       alcoholic beverages coming from Early, observed that his eyes were bloodshot

       and glassy, conducted field sobriety tests upon Early which he failed, and

       conducted a breath test on Early which revealed a result of “0.129 g/210L.”

       State’s Exhibit 7. We conclude that the State presented evidence of a probative

       nature from which a reasonable trier of fact could have determined beyond a

       reasonable doubt that Early committed operating a vehicle with an ACE of .08

       as a class C misdemeanor. 3




       3
         Early also argues that Deputy Bullock changed his testimony numerous times, that his demeanor in the
       courtroom demonstrated hostility towards Early’s counsel, and that allowing Deputy Bullock to repeatedly resist

       Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016              Page 9 of 10
                                                          Conclusion

[18]   For the foregoing reasons, we affirm Early’s conviction.


[19]   Affirmed.


       Mathias, J., concurs.


       Robb, J., concurs in result without opinion.




       providing a conclusive and/or responsive answer to a leading question and allowing him to repeatedly impeach his
       own testimony without an admonishment from the trial court is reversible error and tantamount to limiting his
       efforts to receive a fair and impartial trial. Early’s counsel referred to a history with Deputy Bullock, and the trial
       court found that none of the history was relevant, and the court at one point stated: “This is about this case, this
       case only and this trial only. Now, let’s keep our questions simple. Let’s keep our answers directly to the questions
       . . . .” Transcript at 57. We cannot say that reversible error occurred.



       Court of Appeals of Indiana | Memorandum Decision 87A01-1604-CR-992 | December 20, 2016                 Page 10 of 10
