                                                                     Dec 04 2015, 8:47 am




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Jerry T. Drook                                            Gregory F. Zoeller
Marion, Indiana                                           Attorney General of Indiana

                                                          Larry D. Allen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                            IN THE
    COURT OF APPEALS OF INDIANA

Dannie Carl Pattison,                                     December 4, 2015

Appellant-Defendant,                                      Court of Appeals Case No.
                                                          27A05-1411-CR-517
        v.                                                Appeal from the Grant Superior
                                                          Court

State of Indiana,                                         The Honorable Warren Haas, Judge
                                                          Trial Court Cause No.
Appellee-Plaintiff.
                                                          27D03-1303-FD-110




May, Judge.




Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015                  Page 1 of 12
[1]   Dannie Carl Pattison appeals his conviction of Class D felony operating a vehicle

      with an alcohol concentration equivalent (ACE) of .08% or more with a prior

      conviction within the last five years. 1 Pattison asserts a jury instruction included a

      constitutionally impermissible evidentiary presumption that shifted the burden of

      proof to him on an element of the offense.


[2]   We reverse.


                                        Facts and Procedural History
[3]   On March 3, 2013, around 1:30 a.m., Jonesboro Police Officer Justin Chambers

      stopped Pattison’s car because the taillights were not working. Officer Chambers

      activated his lights in order to pull Pattison over. Pattison did not stop until he

      pulled into his own driveway, approximately five hundred feet later. Officer

      Chambers pulled into the driveway behind Pattison.


[4]   Pattison pulled himself out of the car as Officer Chambers approached. Pattison

      did not provide his driver’s license when requested. Officer Chambers noticed

      Pattison had “watery eyes and slurred speech and . . . a strong odor of . . . an

      alcoholic beverage.” (Tr. at 11.) Pattison “stated that he had had a couple of beers

      earlier that night.” (Id. at 12.) Officer Chambers decided to conduct field sobriety

      tests.




         1
             Ind. Code § 9-30-5-1(a) (2001) & Ind. Code § 9-30-5-3(a)(1) (2008).


         Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015   Page 2 of 12
[5]   Pattison claimed that, due to prior injuries, he could perform only the horizontal

      gaze nystagmus (“HGN”) test. Pattison failed that test and a portable breathalyzer

      test. After being advised of Indiana’s implied consent law, Pattison agreed to a

      certified chemical test. That test indicated his alcohol concentration equivalent

      (“ACE”) was .10%. Pattison was arrested and charged with operating a vehicle

      with an ACE of .08% or more.


[6]   The jury first found Pattison guilty of Class C misdemeanor operating a vehicle

      with an ACE of .08% or more. Then the State presented evidence of Pattison’s

      prior convictions, which Pattison did not contest. The jury found Pattison guilty of

      Class D felony operating a vehicle with an ACE of 0.08% or more, with a prior

      conviction within five (5) years. The trial court pronounced a three-year sentence.


                                         Discussion and Decision
[7]   Pattison challenges a jury instruction. “The manner of instructing a jury is left to

      the sound discretion of the trial court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct.

      App. 2013), trans. denied. We reverse only if the instructions are an abuse of

      discretion, Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010), which occurs

      when an instruction is erroneous and the instructions, taken as a whole, misstate

      the law or mislead the jury. Id.


[8]   Pattison did not object at trial to the jury instruction now challenged. An issue is

      waived for appellate review unless a party objected to the alleged error at trial.

      Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015). Despite waiver, relief remains

      available under a narrow exception for fundamental error. Id. A fundamental

         Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015   Page 3 of 12
      error is one that “constitutes a blatant violation of basic principles, the harm or

      potential for harm is substantial, and the resulting error denies the defendant

      fundamental due process.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind.

      2006)).


[9]   Pattison asserts the challenged instruction resulted in fundamental error because it

      contained a constitutionally impermissible evidentiary presumption. An

      evidentiary presumption is an “assumption that a fact exists because of the known

      or proven existence of some other fact or group of facts.” Black’s Law Dictionary

      1376 (10th ed. 2014). When the law requires one fact to be assumed based on

      another fact or other facts, the presumption created is mandatory. 2 Sturgeon v.

      State, 575 N.E.2d 679, 680 n.4 (Ind. Ct. App. 1991). Mandatory presumptions can

      be conclusive or rebuttable. Id. “A conclusive presumption removes the presumed

      element from the case once the State has proved the predicate facts.” Id. A

      rebuttable presumption “does not remove the presumed element from the case” but

      requires the jury to presume it to be true unless the defendant persuades them

      otherwise. Id.


[10] As   Black’s further explains:

                  Most presumptions are rules of evidence calling for a certain result in a
                  given case unless the adversely affected party overcomes it with other
                  evidence. A presumption shifts the burden of production or




          2
           When the law permits, but does not require, a factual conclusion to be drawn based on other facts known or
          proven, a permissive inference has been created. Sturgeon v. State, 575 N.E.2d 679, 680 n.4 (Ind. Ct. App.
          1991).

          Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015                     Page 4 of 12
                persuasion to the opposing party, who can then attempt to overcome
                the presumption.
[11] Black’s   Law Dictionary 1376. Both conclusive and rebuttable mandatory

   presumptions “violate the Due Process Clause if they relieve the State of the

   burden of persuasion on an element of a criminal offense.” Sturgeon, 575 N.E.2d at

   680. See also Collins v. State, 567 N.E.2d 798, 801 (Ind. 1991) (Regarding

   instruction that informed jury evidence of letter being mailed was prima facie proof

   that it was received, the court held: “Even though the instruction made the

   presumption rebuttable, a mandatory rebuttable presumption is no less

   unconstitutional.”).


[12] With   this background in mind, we turn to the instruction Pattison challenges. To

   prove Pattison guilty as charged, the State had to present evidence he “operate[d] a

   vehicle with an alcohol concentration equivalent [ACE] to at least eight-

   hundredths (0.08) gram of alcohol . . . per . . . two hundred ten (210) liters of the

   person’s breath.” Ind. Code § 9-30-5-1. At a trial for such charge, evidence of the

   driver’s ACE at the time of driving or within three hours thereof is admissible.

   Ind. Code § 9-30-6-15(a) (certain ACE evidence is admissible) & Ind. Code § 9-30-

   6-2 (if tested within three hours).


[13] Furthermore,    our legislature has provided:

                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


       Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015       Page 5 of 12
                (2) the person charged with the offense had an alcohol concentration
                equivalent to at least eight-hundredths (0.08) gram of alcohol per:
                        (A) one hundred (100) milliliters of the person’s blood at the
                        time the test sample was taken; or
                        (B) two hundred ten (210) liters of the person’s breath;
                the trier of fact shall presume that the person charged with the offense
                had an alcohol concentration equivalent [ACE] to at least eight-
                hundredths (0.08) gram of alcohol per one hundred (100) milliliters of
                the person’s blood or per two hundred ten (210) liters of the person’s
                breath at the time the person operated the vehicle. However, this
                presumption is rebuttable.
      Ind. Code § 9-30-6-15(b). 3


[14] Because   Pattison’s test was administered within the permissible time frame and his

   BAC was .10%, the trial court gave the following jury instruction:

                Rebuttable Presumption
                If in a prosecution for operating a vehicle with at least eight-
                hundredths (0.08) gram of alcohol in 210 liters of the breath, if
                evidence establishes that:
                    •   a chemical test was performed within three (3) hours after the
                        law enforcement officer had probable cause to believe the
                        person committed the crime; and
                    •   the person charged with the offense had an alcohol
                        concentration equivalent to at least eight-hundredths (0.08)
                        gram of alcohol per two hundred ten (210) liters of the person’s
                        breath;




      3
        Our Legislature enacted the first version of this statute shortly after our court held ACE results from a test
      taken after an arrest were sufficiently relevant to be admissible as to the question of ACE at the time of
      driving, but that such results could not prove ACE at the time of driving. See Hall v. State, 560 N.E.2d 561,
      563 (Ind. Ct. App. 1990) (“Shortly after the Smith [v. State, 502 N.E.2d 122, 123 (Ind. Ct. App. 1986), trans.
      denied, superseded by statute] case, the legislature added” the subsection.).

      Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015                           Page 6 of 12
                  the jury shall presume that the person charged with the offense had an
                  alcohol concentration equivalent to at least eight-hundredths (0.08)
                  gram of alcohol per two hundred ten (210) liters of the person’s breath
                  at the time the person operated the vehicle. However, the presumption
                  is rebuttable.
[15] (App.    at 33.) Pattison argues the presumption created in that instruction

    unconstitutionally shifted the burden of proof to him.


[16] In   1989, we first addressed the constitutionality of the statutory presumption that

    underlies the instruction given to Pattison’s jury. Chilcutt v. State, 544 N.E.2d 856,

    857-58 (Ind. Ct. App. 1989), trans. denied. Chilcutt argued the statute

    “unconstitutionally shifted the burden of proof away from the State, effectively

    requiring him to prove his innocence.” Id. at 857. We held

                  the State did prove each element of the offense beyond a reasonable
                  doubt. The defendant admitted operating the vehicle and the State
                  proved that a proper and reliable blood alcohol test was given to him.
                  The test results, showing that defendant had a .17% blood alcohol
                  content, were entered into evidence. In addition, the State also had
                  the following testimony of Officer Jolley: “[Chilcutt] stated that he had
                  not had anything to drink since the accident.”
                  In 22A C.J.S. Criminal Law § 579, pp. 331-332, it is stated:
                           “The legislature may enact laws declaring that, on proof of one
                           fact, another fact may be inferred or presumed, and such
                           enactments are constitutional, provided no constitutional right
                           of accused is destroyed thereby, the presumption is subject to
                           rebuttal, and there is some rational connection between the fact
                           proved and the ultimate fact presumed.”
                  22A C.J.S. Criminal Law § 579.
                  There is a rational connection in IND.CODE § 9-11-4-15 [now
                  codified at Ind. Code § 9-30-6-15] between the fact proved and the
                  ultimate fact presumed. The fact proved is the person had a blood
                  alcohol content of at least .10% at the time the test sample was taken,
                  which was within the specified period of time. This leads to the
          Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015        Page 7 of 12
                ultimate fact presumed that within this time period when the
                defendant had been operating his vehicle he had at least a blood
                alcohol content of .10%.
                Presumptions in criminal statutes are not considered conclusive and do
                not affect the burden of proof, but shift the burden of going forward
                with evidence to the defendant. 22A C.J.S. Criminal Law § 579 (1988
                Supp.). The State remains responsible for proving the necessary
                elements of the offense beyond a reasonable doubt. The defendant’s
                constitutional rights have not been destroyed. The presumption is
                rebuttable and the defendant may produce evidence to overcome the
                presumption.
                [Chilcutt] argues that he is having to prove his innocence by producing
                evidence of post-accident consumption of alcohol. While the State
                must establish all the elements of the crime, it does not have the
                burden of negating all affirmative defenses which excuse or exempt the
                defendant. . . . .
                Post-accident consumption of alcohol is regarded as an affirmative
                defense. . . . Thus, defendant had the burden of establishing this
                defense and none of his constitutional rights were destroyed thereby.
       Chilcutt, 544 N.E.2d at 858.


[17] Then,   a year later, in Hall, we held that, although Chilcutt properly determined the

   statute creating the presumption was constitutional, a jury instruction that tracked

   the language of the statute was erroneous because it ran the risk of misleading a

   jury into thinking the presumption was mandatory, rather than permissive:

                We agree with our Third District that the language contained in the
                instruction does not create a conclusive presumption nor shift the
                burden of proof to defendant.
                This is not to say, however, that the mandatory language of the statute
                and instruction compels the trier of fact to accept the presumption
                when the defendant falls somewhat short of rebutting it. The statute
                and instruction do not create and implement a conclusive
                presumption. They do however appear to contemplate a mandatory
                presumption.

       Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015       Page 8 of 12
               The instruction does not advise that the presumption is permissive in
               the sense that the jury may accept or reject it and is not compelled to
               find the presumed fact even if the defendant does not come forward
               with evidence to rebut the presumption. To the contrary, the
               instruction tracks the statute. The statute appears to create a
               mandatory presumption and states that the jury “shall presume” unless
               the presumption has been rebutted.
               Chilcutt v. State held that the statute does not excuse the State from
               proving each and every element of the offense beyond a reasonable
               doubt and that it does not shift the burden of proof as to any such
               element to the defendant. In light of this holding we are constrained to
               state that notwithstanding the phrase “shall presume,” the statute does
               not create a mandatory presumption. We hold therefore that even in a
               case in which the defendant does not rebut or attempt to rebut the
               presumption, the trier of fact is not compelled to find the presumed
               fact of blood alcohol content at the time of vehicle operation from the
               proved fact of blood alcohol content at the time of later testing. The
               jury is free to accept the presumption or not, just as it is free to do with
               other evidence.
               Accordingly, the instruction although faithfully tracking the language
               of the statute, was subject to a mandatory interpretation which could
               have misled the jury with regard to its duty and prerogatives.
               In its brief the State acknowledges that the Unites States Supreme
               Court has repudiated mandatory presumptions and mandatory
               rebuttable presumptions. It also recognizes that the words “shall be
               presumed” have been held in other jurisdictions to create only a
               permissive presumption.
               We now hold likewise. Furthermore, we hold that an instruction
               which embraces the statute must clearly advise the jury that the
               presumption is only permissive. The instruction given in this case did
               not do so.
               Accordingly, we reverse the judgment and remand for a new trial.
      Hall, 560 N.E.2d at 563-64 (internal citations omitted).


[18] We   have reaffirmed the reasoning of Chilcutt and Hall on a number of occasions.

   See Disbro v. State, 791 N.E.2d 774, 778 (Ind. Ct. App. 2003) (finding no error in

      Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015         Page 9 of 12
   jury instruction that included statutory language but also informed jury the

   presumption could be rejected even if not rebutted by other evidence), trans. denied;

   Finney v. State, 686 N.E.2d 133, 135 (Ind. Ct. App. 1997) (statute creating

   presumption, Ind. Code § 9-30-6-15, is constitutional); Thompson v. State, 646

   N.E.2d 687, passim (Ind. Ct. App. 1995) (no error when jury instructed the

   presumption created by Ind. Code § 9-30-6-15 was both rebuttable and permissive,

   such that jury could reject the presumption), trans. denied; Regan v. State, 950

   N.E.2d 640, 645 (Ind. Ct. App. 1992) (Ind. Code § 9-11-4-15 is constitutional, and

   jury instructions as a whole created no error when language of Ind. Code § 9-11-4-

   15 supplemented with language informing jury that BAC alone was insufficient to

   prove the element of ‘intoxication’ and that defendant had no burden to present

   evidence to rebut the BAC evidence); Sturgeon, 575 N.E.2d at 681 (jury instruction

   that tracked language of Ind. Code § 9-11-4-15 was constitutional error).


[19] As   the instruction given to Pattison’s jury is essentially the same instruction given

   in Hall, that instruction was erroneous. 4 See Sturgeon, 575 N.E.2d at 681

   (instruction tracking statutory language created constitutional error); Hall, 560




          4
            The trial court indicated “we have, in the pattern instructions, things that are helpful, but I don’t think that
          they’re really, um, simple to follow.” (Tr. at 80.) Unlike the constitutionally infirm instruction that was
          given to the jury, the pattern jury instruction on this point of law at the time of Pattison’s trial explained: “It
          creates an inference that the Defendant was sufficiently under the influence of alcohol to lessen Defendant’s
          driving ability so as to be intoxicated within the meaning of the law. This inference is not conclusive. You
          may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.117. In 2014, the instruction was updated to
          read: “[Y]ou may infer that the Defendant was sufficiently under the influence of alcohol to lessen
          Defendant’s driving ability so as to be intoxicated within the meaning of the law. You are not required to
          make this inference. You may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.4240. As such,
          the Pattern Jury Instruction was, and is, a more constitutionally appropriate statement of the inference
          allowed.

          Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015                           Page 10 of 12
   N.E.2d at 564 (“instruction which embraces the statute must clearly advise the jury

   that the presumption is only permissive”).


[20] A   single erroneous instruction, however, need not render the trial court’s entire

   charge to the jury an abuse of discretion if other instructions correct the error

   created by the erroneous instruction. See, e.g., Regan, 950 N.E.2d at 645 (no error

   when statutory language supplemented with other language). The State points out

   that the jury received a “Presumption of Innocence” instruction that explained the

   State was responsible to prove “each element of the crime charged . . . [and] Mr.

   Pattison was not required to present any evidence to prove his innocence or to

   prove or explain anything.” (Appellee’s Br. at 11.) However, that instruction

   about the presumption of innocence does not correct the improper presumption

   created by the statute-based instruction at issue. See Sturgeon, 575 N.E.2d 682

   (“General instructions on the State’s burden of persuasion and the defendant’s

   presumption of innocence are not inconsistent with the burden-shifting

   presumption and therefore do nothing to lessen the harm.”). Accordingly the

   challenged instruction created constitutional error. See id. (holding instruction

   created error).


[21] Nevertheless,     as the State contends, an instruction that impermissibly shifts the

   burden of proof “does not . . . automatically require the reversal of an otherwise

   valid conviction” because even instructions that improperly shift the burden of

   proof can be harmless. Id. Instructional error does “not require reversal of a

   conviction where, after review of the entire record, the reviewing court concludes

   the error was harmless beyond a reasonable doubt.” Collins, 567 N.E.2d at 801.

         Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015   Page 11 of 12
[22] Unlike   Regan, 950 N.E.2d 640, in which the defendant was charged with a version

   of driving while intoxicated that permitted the jury to find the defendant guilty

   based on his physical characteristics and behavior, Pattison was charged only with

   driving while intoxicated with an ACE over .08%. As Pattison did not challenge

   that he was driving, the presumption created by the erroneous instruction shifted

   the burden of proof to Pattison on the only contested element in the case. In this

   situation, we cannot say the instructional error was harmless. See, e.g., Sturgeon,

   575 N.E.2d at 683 (unable to hold error harmless where evidence of Sturgeon’s

   “appearance of intoxication” was inconclusive and conflicting). Accordingly, we

   must reverse.


                                                  Conclusion
[23] Because   the error caused by the court’s constitutionally infirm jury instruction was

   neither corrected by the court’s other instructions nor harmless based on the other

   evidence presented, we must reverse Pattison’s conviction.


[24] Reversed.




   Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015   Page 12 of 12
