MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                             Oct 20 2016, 9:05 am

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


ATTORNEYS FOR APPELLANT
Gregory F. Zoeller
Attorney General of Indiana

George P. Sherman
Deputy Attorney General
Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

State of Indiana,                                        October 20, 2016
Appellant-Plaintiff,                                     Court of Appeals Case No.
                                                         10A05-1604-CR-820
        v.                                               Appeal from the Clark Circuit
                                                         Court
Kevin Ford,                                              The Honorable Joseph P. Weber,
Appellee-Defendant.                                      Judge
                                                         Trial Court Cause No.
                                                         10C03-1602-F6-209



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 10A05-1604-CR-820 | October 20, 2016         Page 1 of 6
                                             Case Summary
[1]   The State appeals the trial court’s dismissal of its charging information against

      Kevin Ford for Level 6 felony operating a vehicle as an habitual traffic violator

      (“HTV”). We reverse and remand.


                                                     Issue
[2]   The sole issue before us is whether the trial court erred in dismissing the

      information based on a purported lack of probable cause.


                                                     Facts
[3]   The probable cause affidavit in this case, submitted by Officer Joe Baker of the

      Charlestown Police Department, stated that on January 28, 2016, Officer Baker

      was conducting traffic control when he noticed a red Chevrolet HHR with a

      partially obscured license plate drive past. Officer Baker noted that the vehicle

      was being driven by a white male; he did not see any other occupants at that

      time. Officer Baker followed the vehicle to a gas station so that he could get a

      better look at the license plate. After arriving at the gas station, Officer Baker

      saw a white male with a tattoo on the left side of his neck exit the driver’s side

      door. Officer Baker obtained the license plate information, then left the gas

      station to set up a radar traffic control area.


[4]   Minutes later, Officer Baker saw the same red Chevrolet HHR drive past, and

      he decided to follow it. When he observed the vehicle switch lanes without

      signaling, he initiated a traffic stop. Stephanie Littrell was driving the vehicle at

      this time and Ford, whom Officer Baker recognized from having seen him
      Court of Appeals of Indiana | Memorandum Decision 10A05-1604-CR-820 | October 20, 2016   Page 2 of 6
      driving earlier and at the gas station, was in the front passenger seat. Officer

      Baker then ran Ford’s driver’s license information, learned that Ford was an

      HTV, took him into custody, and drove him to the police station. At the

      station, Ford admitted that he had been driving earlier and had been trying to

      get to a methadone clinic before it closed.


[5]   The State charged Ford with Level 6 felony operating a vehicle as an HTV.

      Ford filed a “Motion for Probable Cause Hearing,” asserting that Officer Baker

      did not have probable cause to arrest him. App. p. 16. The trial court

      conducted a hearing on this motion, at which Officer Baker and Littrell

      testified. Officer Baker described the events leading up to and after Ford’s

      arrest, providing additional detail that was not in the probable cause affidavit.

      Officer Baker also testified that during “open conversation” at the police

      station, Ford said, “I f’d up . . . I screwed up, I shouldn’t have been driving . . .

      .” Tr. p. 46. After the trial court asked whether Ford had been Mirandized at

      that time and Officer Baker said he had not, the trial court stated, “Well I don’t

      care what he said then. It’s not going to be able to come in.” Id. at 47. Littrell

      testified that she was Ford’s girlfriend and had been driving the entire time on

      January 28, 2016. After the hearing, the trial court entered an order finding

      there was no probable cause for Ford’s arrest or the charge against him and

      dismissing the case without prejudice. The State now appeals.


                                                  Analysis
[6]   We first note that Ford has not filed an appellee’s brief in this case. It was

      Ford’s obligation as appellee to controvert arguments presented by the State.
      Court of Appeals of Indiana | Memorandum Decision 10A05-1604-CR-820 | October 20, 2016   Page 3 of 6
      See Mateyko v. State, 901 N.E.2d 554, 557 (Ind. Ct. App. 2009), trans. denied.

      When an appellee does not submit a brief, we may reverse if the appellant

      presents a prima facie case of error, which is error at first sight or appearance.

      Id. “We are nevertheless obligated to correctly apply the law to the facts of the

      record to determine if reversal is required.” Id.


[7]   We review a trial court’s dismissal of a charging information for an abuse of

      discretion. State v. Isaacs, 794 N.E.2d 1120, 1122 (Ind. Ct. App. 2003). A trial

      court abuses its discretion in a ruling if it is clearly against the logic and effect of

      the facts and circumstances before it, or if it misinterprets or misapplies the law.

      Gil v. State, 988 N.E.2d 1231, 1234 (Ind. Ct. App. 2013).


[8]   Indiana Code Section 35-34-1-4 lists eleven possible grounds for dismissing a

      charging information. A lack of probable cause is not one of those grounds.

      Flowers v. State, 738 N.E.2d 1051, 1055 (Ind. 2000). Rather, it is axiomatic that,

      “[a] pretrial motion to dismiss directed to the insufficiency of the evidence is

      improper, and a trial court errs when it grants such a motion.” State v. Helton,

      837 N.E.2d 1040, 1041 (Ind. Ct. App. 2005). The sufficiency of a charging

      information generally is tested by taking the facts alleged in the information as

      true. Isaacs, 794 N.E.2d at 1122. “Questions of fact to be decided at trial or

      facts constituting a defense are not properly raised by a motion to dismiss.” Id.

      If, indeed, probable cause is found to be lacking for an arrest, it is relevant only

      to the defendant’s pretrial detention or the admissibility of evidence recovered

      incident to the arrest. Flowers, 738 N.E.2d at 1055.



      Court of Appeals of Indiana | Memorandum Decision 10A05-1604-CR-820 | October 20, 2016   Page 4 of 6
[9]    Here, the trial court essentially granted Ford a pretrial mini-trial and ruled that

       there was insufficient evidence to charge Ford. That was improper, and it was

       an abuse of discretion to dismiss the case for this reason. Clearly, the trial court

       was required to weigh evidence and judge witness credibility in order to rule in

       Ford’s favor. Those were matters to be decided at trial. See Isaacs, 794 N.E.2d

       at 1122-23 (holding defendant’s alleged statutory defense to charge was a matter

       to be decided at trial).


[10]   We further note that the trial court seems to have sua sponte suppressed Ford’s

       admission to Officer Baker that he had been driving because he had not yet

       been Mirandized. We conclude the trial court jumped the gun in doing so.

       Miranda only requires suppression of unwarned statements that are made in

       custody in response to “interrogation,” which includes express questioning or

       words or actions on the part of police that the police know are reasonably likely

       to elicit an incriminating response. White v. State, 772 N.E.2d 408, 412 (Ind.

       2002). “Volunteered statements do not amount to interrogation.” Id. Officer

       Baker’s testimony that Ford made his admissions during “open conversation” is

       far from conclusive proof that the admissions were made in response to

       interrogation as opposed to being volunteered. Tr. p. 46.


                                                 Conclusion
[11]   The trial court abused its discretion in dismissing the State’s case against Ford

       for an alleged lack of probable cause. It also acted prematurely in deciding that

       Ford’s admissions to Officer Baker should be suppressed. We reverse the


       Court of Appeals of Indiana | Memorandum Decision 10A05-1604-CR-820 | October 20, 2016   Page 5 of 6
dismissal of the charging information and remand for further proceedings

consistent with this opinion.


Reversed and remanded.


Riley, J., and Bailey, concur.




Court of Appeals of Indiana | Memorandum Decision 10A05-1604-CR-820 | October 20, 2016   Page 6 of 6
