MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                       Mar 07 2019, 8:45 am

regarded as precedent or cited before any                                           CLERK
court except for the purpose of establishing                                    Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy P. Broden                                        Curtis T. Hill, Jr.
Lafayette, Indiana                                       Attorney General of Indiana

                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Robin W. Walker,                                         March 7, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1909
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Steven P. Meyer,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Thomas H. Busch,
                                                         Senior Judge
                                                         Trial Court Cause No.
                                                         79D02-1708-F5-107



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019                           Page 1 of 8
[1]   Following a two-phase trial, Robin Walker was convicted of operating a vehicle
                                                                               1
      while intoxicated with prior conviction, a Level 6 felony, and was adjudicated
                                                                2
      a habitual vehicular substance offender. The sole issue he raises for our review

      is whether the trial court erred in admitting into evidence toxicology results for

      blood drawn at the time of his arrest. We affirm.


[2]   The facts most favorable to the judgment reveal that on August 11, 2017,

      around 11:30 p.m., Lafayette Police Officer David Chapman was parked in a

      convenience store parking lot and observed a person on a three-wheeled moped

      heading south on 14th Street. The driver of the moped, later determined to be

      Walker, disregarded a red traffic light and turned right at the intersection,

      without stopping and without using his indicator. Officer Chapman followed

      Walker and saw Walker drive his moped onto a sidewalk and proceed down

      the sidewalk for about half a block before returning to the road. Once back on

      the road, Walker weaved in and out of traffic without signaling and cut off

      several cars, causing the cars to suddenly brake. Officer Chapman initiated a

      traffic stop, and Walker pulled the moped to the side of the road.


[3]   Officer Chapman approached Walker and smelled the odor of an alcoholic

      beverage on his breath. He noticed that Walker had poor balance. Officer

      Chapman administered the horizontal gaze nystagmus test, which Walker




      1
          Ind. Code § 9-30-5-1(c) (2001); I.C. § 9-30-5-3(a)(1) (2014).
      2
          Ind. Code § 9-30-15.5-2 (2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019   Page 2 of 8
      failed. Officer Chapman then asked if Walker would perform additional field

      sobriety tests. Walker agreed. Walker failed both the one leg stand test and the

      walk and turn test.


[4]   Officer Chapman submitted a probable cause affidavit and obtained a search

      warrant for samples of Walker’s blood and urine. Test results of the samples

      revealed the presence of marijuana and indicated that Walker’s blood alcohol

      content was .056.


[5]   On August 16, 2017, the State charged Walker with Count I, Level 5 felony

      operating a vehicle after forfeiture of license for life; Count II, Level 6 felony

      operating a vehicle while intoxicated with prior conviction; Count III, Class A

      misdemeanor operating a vehicle while intoxicated endangering a person;

      Count IV, Class C misdemeanor operating a vehicle with a Schedule I or II

      controlled substance or its metabolite in the body; and also alleged that Walker

      was a habitual vehicular substance offender.


[6]   Before trial, Walker filed a motion to suppress the toxicology results, and, on

      May 3, 2018, the trial court held a hearing on the matter. During the hearing,

      Officer Chapman’s probable cause affidavit for the search warrant was offered

      into evidence. Officer Chapman testified and acknowledged that there was an

      inaccuracy in the affidavit. Specifically, he had incorrectly marked a box on the

      affidavit indicating that alcoholic beverage containers were in view at the time

      Walker was arrested.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019   Page 3 of 8
[7]   At the conclusion of the hearing, the trial court denied Walker’s motion to

      suppress, finding as follows:


                  It appears that it was a clerical error and [Officer Chapman]
                  made a mistake, [sic] it was an honest mistake but it wasn’t done
                  willfully or intentionally. . . . So, all in all, uh, I think that uh –
                  that based upon this officer’s testimony that [the officer] did
                  provide sufficient observations [of Walker’s behavior]. In
                  addition to that the flunking – the failure of the three (3) field
                  tests. So, I – even if you didn’t have – even if you didn’t have
                  some of these observations, I think that not passing the field tests
                  and the driving behavior in and of itself probably would support
                  the probable cause affidavit for the blood draw, but we had these
                  other observations made by the officer and so uh, it appears that
                  enough sufficient evidence was given . . . that was reliable to
                  support the signing and the granting of the search warrant for the
                  blood and urine test.


      Tr. Vol. 2, pp. 34, 36. When the toxicology results were offered at trial, Walker

      objected. The trial court overruled his objection and admitted the results into

      evidence.


[8]   In a bifurcated proceeding, Walker first was tried by jury on July 12 and 13,
              3
      2018. At the conclusion of the trial, Walker was found guilty of Class C

      misdemeanor operating a vehicle while intoxicated, Class A misdemeanor



      3
        Prior to trial, Count I, Level 5 felony operating a vehicle after forfeiture of license for life, was dismissed by
      the State, and the remaining counts were renumbered. The record indicates that Walker was tried on two
      counts in phase one of his trial: Count I, operating a vehicle while intoxicated endangering a person; and
      Count II, operating a vehicle with a Schedule I or II controlled substance or its metabolite in the body.
      When the trial court gave its final instructions, the jury was instructed that it could also find Walker guilty of
      the lesser included offense of operating a vehicle while intoxicated as a Class C misdemeanor. See Tr. Vol. 3,
      pp. 17-18.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019                           Page 4 of 8
       operating a vehicle while intoxicated endangering a person, and Class C

       misdemeanor operating a vehicle with a Schedule I or II controlled substance or

       its metabolite in the body. The trial court entered judgment on two of the

       counts: operating a vehicle while intoxicated endangering a person and

       operating a vehicle with a Schedule I or II controlled substance or its metabolite

       in the body.


[9]    The second phase of the trial began immediately following the conclusion of

       phase one – to resolve the Level 6 felony charge of operating a vehicle while

       intoxicated with prior conviction and to determine Walker’s habitual offender

       status. Walker waived his right to a jury trial, and the trial court found him

       guilty of the Level 6 felony and also found him to be a habitual vehicular

       substance offender.


[10]   On July 27, 2018, the trial court sentenced Walker to four years with sixty days

       ordered served in the Tippecanoe County Jail and the remainder of the sentence

       suspended to probation. Walker now appeals.


[11]   The issue is whether the court abused its discretion in admitting into evidence

       the results of Walker’s toxicology test of the blood sample that was drawn at the

       time of his arrest. Generally, we review the trial court’s ruling on the admission

       or exclusion of evidence for an abuse of discretion. Joyner v. State, 678 N.E.2d

       386 (Ind. 1997). We reverse only where the decision is clearly against the logic

       and effect of the facts and circumstances. Id.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019   Page 5 of 8
[12]   Walker challenges the probable cause affidavit that supported the issuance of

       the search warrant for the blood draw. The Fourth Amendment to the United

       States Constitution and article I, section 11 of the Indiana Constitution both

       require probable cause for the issuance of a search warrant. See Query v. State,

       745 N.E.2d 769 (Ind. 2001). The task of the trial court when deciding whether

       to issue a search warrant is “simply to make a practical, commonsense decision

       whether, given all the circumstances set forth in the affidavit . . . there is a fair

       probability that contraband or evidence of a crime will be found in a particular

       place.” Id. at 771 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,

       2332, 76 L. Ed. 2d 527 (1983)). On appeal, this Court’s duty is to determine

       whether the issuing court had a “substantial basis” for concluding that probable

       cause existed. Id. We examine whether “reasonable inferences drawn from the

       totality of the evidence support the determination of probable cause.” Id.

       “[T]he amount of evidence needed to supply probable cause of operating while

       intoxicated is minimal[.]” Hannoy v. State, 789 N.E.2d 977, 989 (Ind. Ct. App.

       2003), trans. denied.


[13]   The request for a search warrant is necessarily made ex parte. Stephenson v.

       State, 796 N.E.2d 811 (Ind. Ct. App. 2003), trans. denied. Thus, to preserve the

       basic notions of due process, a defendant can defeat the validity of a search

       warrant if he can establish by a preponderance of the evidence that “a false

       statement knowingly and intentionally, or with a reckless disregard for

       the truth, was included by the affiant in the warrant affidavit, . . . and, . . . the

       affidavit’s remaining content is insufficient to establish probable cause” for the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019   Page 6 of 8
       search. Id. at 815 (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct.

       2674, 2776, 57 L. Ed. 2d 667 (1978)). If the defendant meets this burden, the

       search warrant must be voided, and the fruits of the search must be excluded to

       the same extent as if the probable cause was lacking on the face of

       the affidavit. Id. Mistakes and inaccuracies in a search warrant affidavit will

       not defeat the reliability of the affidavit so long as such mistakes were

       innocently made. Utley v. State, 589 N.E.2d 232 (Ind. 1992).


[14]   Walker argues that the probable cause affidavit contained false statements,

       specifically: “alcoholic beverage containers in view,” “Walker’s eyes were

       watery and bloodshot,” and “his balance was poor.” Appellant’s Br. p. 6. He

       maintains that the affidavit submitted by Officer Chapman was done so with

       knowing, intentional, or reckless disregard for the truth. Walker contends that,

       “excising these inaccuracies, the affidavit d[oes] not support a finding of

       probable cause for issuance of a warrant for the blood draw.” Id. We disagree.


[15]   There is no dispute that Officer Chapman erred when he indicated in the

       affidavit that alcoholic beverage containers were in view when Walker was

       arrested. We, however, can find no indication in the record that this single

       piece of misinformation in the affidavit was made with reckless disregard for

       the truth or that the mistake was anything more than innocently made.


[16]   As for the officer’s other observations, Walker argues that the footage from

       Officer Chapman’s body camera contradicted them. To the contrary, the

       footage indicates that Walker exhibited poor balance. Walker swayed while the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019   Page 7 of 8
       officer administered field sobriety tests, and he needed to brace himself against

       a retaining wall. While the body camera footage did not confirm the officer’s

       observations that Walker’s eyes were watery, glassy, and bloodshot, the officer

       testified under oath to these observations.


[17]   Furthermore, additional evidence supported a finding of probable cause to issue

       the search warrant. The officer testified that he observed Walker proceed

       through a red traffic signal, fail to use his turn signal, drive onto a sidewalk, and

       drive erratically through traffic. Also, Walker failed to follow the officer’s

       instructions when the horizontal gaze nystagmus test was administered, and

       Walker failed two additional field sobriety tests.


[18]   Based upon the foregoing, we find that the trial court had a substantial basis for

       concluding that probable cause existed to issue the search warrant. The court

       did not abuse its discretion when it admitted into evidence Walker’s toxicology

       results from the blood draw.


[19]   Judgment affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1909 | March 7, 2019   Page 8 of 8
