                                                                                 FILED
                                                                           Jul 09 2020, 8:44 am

                                                                                 CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      M. Slaimon Ayoubi                                           Curtis T. Hill, Jr.
      Indianapolis, Indiana                                       Attorney General of Indiana
                                                                  Courtney Staton
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      James W. Combs,                                             July 9, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-1991
              v.                                                  Appeal from the Boone Superior
                                                                  Court
      State of Indiana,                                           The Honorable Bruce E. Petit,
      Appellee-Plaintiff.                                         Judge
                                                                  Trial Court Cause No.
                                                                  06D02-1702-F3-134



      Tavitas, Judge.


                                                 Case Summary

[1]   James Combs appeals his convictions for Counts I, II, and III, possession of

      narcotic drugs, Level 3 felonies; Count V, operating a vehicle while intoxicated

      Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                              Page 1 of 26
      endangering a person, a Class A misdemeanor; Count VI, operating a vehicle

      while intoxicated, a Class C misdemeanor; Count VII, operating a vehicle with

      a schedule I or II controlled substance or its metabolite in the body, a Class C

      misdemeanor; Count VIII, leaving the scene of an accident, a Class B

      misdemeanor; and Count IX, public intoxication, a Class B misdemeanor. We

      affirm in part, reverse in part, and remand.


                                                       Issues

[2]   Combs raises six issues on appeal; however, we consolidate and restate the

      issues as follows:


              I.       Whether the trial court erred in admitting certain evidence.


              II.      Whether the trial court abused its discretion in failing to
                       replace a juror with an alternate juror.


              III.     Whether the prosecutor committed misconduct.


              IV.      Whether the evidence is sufficient to sustain Combs’
                       convictions.


                                                        Facts

[3]   On February 11, 2017, Combs was driving his gold van when he swerved to

      avoid another vehicle and struck an electrical box in Lebanon. After the

      accident, Combs exited his vehicle and took photographs of the damage.

      Witnesses described Combs as “lethargic” and “quiet” at the scene of the

      accident. Tr. Vol. III p. 11. Witnesses also reported to law enforcement that

      Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020               Page 2 of 26
      Combs looked for something under the driver’s seat of the vehicle, was

      “rummaging around,” and trying to “push things around.” Id. at 13. Shortly

      thereafter, Combs left the scene.


[4]   Officer James Koontz, a patrol officer with the Lebanon Police Department,

      responded to a dispatch call regarding the accident and arrived approximately

      two minutes later. Combs was not at the scene when Officer Koontz arrived.

      Witnesses directed Officer Koontz to a nearby neighborhood, to which Combs

      reportedly drove after the accident. Officer Koontz traveled to the

      neighborhood, where he observed a fluid trail and a damaged van.


[5]   The van was parked in Combs’ driveway and had a flat driver-side front tire;

      Officer Koontz observed that the fluid trail continued up the driveway to the

      van. Officer Koontz arrived as Combs stepped from the driver’s seat of the van.

      Officer Koontz advised Combs to remove his hands from his pockets and asked

      if Combs had any weapons. Combs advised Officer Koontz he had three guns

      on his person, which Officer Koontz removed. Combs also stated that he

      intended to call the police about the accident.


[6]   Officer Koontz requested Combs’ identification. As Combs retrieved his

      identification from the van, Officer Koontz observed a knife in “the area

      between the two front seats.” Tr. Vol. II p. 11. Officer Koontz asked Combs to

      step away from the van. As Officer Koontz questioned Combs about the

      accident, witnesses to the accident arrived at Combs’ house. Officer Koontz




      Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020         Page 3 of 26
      asked Combs for permission to search the van; however, Combs refused, unless

      Combs could hand Officer Koontz the items in the vehicle.


[7]   During the conversation, Officer Koontz observed that Combs’ eyes were

      glassy, Combs had pinpoint pupils, and Combs’ speech was slowed. Officer

      Koontz did not detect any odors from Combs’ breath; however, Officer Koontz

      became suspicious that Combs may be under the influence of medication or

      drugs. Accordingly, Officer Koontz proceeded with an investigation for

      operating while intoxicated. Several other officers arrived at the scene,

      including Lieutenant Rich Mount, with the Lebanon Police Department.


[8]   Combs failed two of the field sobriety tests; however, a portable breath test was

      negative for alcohol. Officer Koontz asked if Combs took any prescription

      medication that day, and Combs advised that he took his prescribed Adderall

      medication. Officer Koontz read Combs the Indiana Implied Consent Law,

      and Combs agreed to submit to a chemical test.


[9]   At some point after Combs was handcuffed to be transported for the chemical

      test,1 but before Combs was taken to the hospital, Officer Koontz asked Combs

      if Officer Koontz could look under the front seat of his van. Combs initially

      consented to the officers looking under the front passenger seat of the van. The

      officers looked under the seat and found a black bag. Combs, however, told the




      1
       At the hearing on the motion to suppress, Officer Koontz testified that he had detained Combs at this point;
      however, Combs was not under arrest.

      Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                 Page 4 of 26
       officers that they could not look inside the bag. The officers then ended their

       search.


[10]   As Officer Koontz transported Combs to the hospital for the chemical test,

       Lieutenant Mount telephoned the prosecutor’s office from his vehicle.

       Lieutenant Mount remained with Combs’ van to “figure out . . . what [officers]

       were gonna [sic] do with the [van].” Id. at 52. The officers learned that the van

       contained valuable items related to Combs’ business.


[11]   The officers called for the van to be towed, and an inventory search of the van

       was conducted while the van was still in the driveway. The inventory search

       yielded several personal items, including white pills in a clear bag, 2 and a

       prescription bottle belonging to Combs. The white pills were identified as

       Alprazolam, Hydrocodone, Oxycodone—all controlled substances. Some

       personal items collected from the van were turned over to Combs’ wife at the

       scene. Two days later, Combs’ van was also returned to his wife.


[12]   Combs’ urine drug screen revealed the presence of amphetamine, A-

       Hydroxyalprazolam, “which is a metabolite for Xanax,” hydrocodone,

       oxycodone, and T.H.C. Tr. Vol. IV p. 66. The blood screen detected the

       presence of alprazolam and amphetamine.




       2
           The white pills were found in the small black bag under the driver’s seat.


       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                 Page 5 of 26
[13]   On February 13, 2017, the State charged Combs with Counts I, II, and III,

       possession of narcotic drugs, 3 Level 3 felonies; Count IV, possession of a

       controlled substance, a Level 6 felony; Count V, operating a vehicle while

       intoxicated endangering a person, a Class A misdemeanor; Count VI, operating

       a vehicle while intoxicated, a Class C misdemeanor; Count VII, operating a

       vehicle with a schedule I or II controlled substance or its metabolite in the

       body, a Class C misdemeanor; Count VIII, leaving the scene of an accident, a

       Class B misdemeanor; and Count IX, public intoxication, a Class B

       misdemeanor.


[14]   On May 10, 2017, Combs filed a motion to suppress all evidence obtained from

       the search of Combs’ van, which he claimed violated his rights pursuant to the

       Fourth and Fifth Amendments of the United States Constitution and Article 1,

       Section 11 of the Indiana Constitution. On July 7, 2017, the trial court held a

       hearing on Combs’ motion to suppress.


[15]   At the hearing on the motion to suppress, Lieutenant Mount testified that he

       “was leaning towards towing [the van] as evidence because it was involved in

       the leaving the scene of a property damage accident,” and police department

       policy allows impoundment when the vehicle is evidence of a crime. 4 Tr. Vol.



       3
        These charges were based on the white pills found in Combs’ van: Count I was for possession of
       hydrocodone; Count II was for possession of 10 milligrams of oxycodone pills; and Count III was for
       possession of 7.5 milligrams of oxycodone pills. Count IV was for possession of Alprazolam; however,
       Combs was found not guilty of Count IV.
       4
        The Lebanon Police Department’s written policy for impound and inventory of vehicles was admitted as an
       exhibit at the motion to suppress hearing.

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                              Page 6 of 26
       II p. 53. Lieutenant Mount then testified that officers were “definitely” going to

       arrest Combs for leaving the scene of a property damage accident after his

       blood draw at the hospital; therefore, officers began the process of impounding

       and inventorying the van. Id. at 67. When he was asked whether a less

       intrusive method was available to obtain the needed evidence, Lieutenant

       Mount testified that this procedure was “just [the department’s] policy.” Id. at

       70.


[16]   In closing arguments at the hearing on the motion to suppress, the State argued

       that the decision to impound Combs’ van was “discretionary.” Id. at 85. On

       August 9, 2017, the trial court issued an order denying Combs’ motion to

       suppress. The trial court found that the officers had probable cause to believe

       the van was connected to criminal activity, and thus, could seize the van

       without a warrant.


[17]   Combs filed a motion to reconsider on August 27, 2018. The trial court entered

       an order again denying Combs’ motion to suppress and found as follows:


               This Court finds that in this case under consideration, the State
               did not rely on the automobile exception to enter onto
               Defendant’s property and seize evidence as was prohibited in
               Collins v. Virginia[, __ U.S. __, 138 S. Ct. 1663 (2018)]. The
               officer first to arrive at Defendant’s residence was in fresh pursuit
               of the Defendant and his arrival at Defendant’s residence
               occurred at the same time the alleged crime was unfolding.
               These exigent circumstances allowed the officer to enter onto
               Defendant’s property. Additionally, the officer had probable
               cause to believe the Defendant had violated I.C. 9-26-1-1.1[ ] and
               further, had the authority to arrest the Defendant on his property

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020            Page 7 of 26
               as a result. The obvious nature of Defendant’s van as evidence of
               Leaving the Scene of an Accident allowed its seizure pursuant to
               the plain view doctrine. . . .


       Appellant’s App. Vol. II p. 115. Combs moved to certify the order for

       interlocutory appeal on September 26, 2018, which the trial court granted on

       September 28, 2018. Our Court denied jurisdiction over Combs’ interlocutory

       appeal.


[18]   At Combs’ jury trial from May 14 to May 16, 2019, witnesses testified to the

       foregoing facts. Combs lodged a continuing objection to the evidence recovered

       from the van. At the trial, Lieutenant Mount again testified that law

       enforcement towed Combs’ van as evidence of a crime. Lieutenant Mount

       testified that he did not obtain a warrant to search the van because obtaining a

       search warrant was “a pain in the a**.” Tr. Vol. III p. 169. Also during his

       testimony, Lieutenant Mount acknowledged that Combs admitted his

       involvement in the accident; however, when pressed about why the van would

       need to be seized given Combs’ admission, Lieutenant Mount testified that he

       was unsure and that Combs may have initially denied any involvement in the

       accident. The jury found Combs not guilty of Count IV, but guilty of the

       remaining counts. Combs now appeals.


                                                      Analysis

                                           I.       Admission of Evidence

[19]   “The general admission of evidence at trial is a matter we leave to the discretion

       of the trial court.” See Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). “We

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020        Page 8 of 26
       review these determinations for abuse of that discretion and reverse only when

       admission is clearly against the logic and effect of the facts and circumstances

       and the error affects a party’s substantial rights.” Id. at 260.


                                            A. Search of Combs’ Vehicle

[20]   Combs argues that his Fourth Amendment rights were violated when police

       searched his vehicle without a warrant. 5 Because Combs appeals from a

       completed jury trial rather than the denial of his motion to suppress, the issue is

       more appropriately framed as whether the trial court properly admitted the

       evidence at trial. See Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). We review

       the trial court’s conclusions on the admission of evidence for an abuse of

       discretion. See id. at 260. “However, when a challenge to an evidentiary ruling

       is predicated on the constitutionality of a search or seizure of evidence, it raises

       a question of law that is reviewed de novo.” Curry v. State, 90 N.E.3d 677, 683

       (Ind. Ct. App. 2017), trans. denied (citations omitted). “The State has the burden

       to demonstrate that the measures it used to seize information or evidence were

       constitutional.” Id.


[21]   The Fourth Amendment to the United States Constitution protects citizens

       against unreasonable searches and seizures by prohibiting them without a



       5
         Combs also argued in his motion to suppress that the search was improper under Article 1, Section 11 of the
       Indiana Constitution. Combs, however, does not articulate an Indiana Constitution argument in his brief as
       required. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (“Because Abel presents no authority or
       independent analysis supporting a separate standard under the state constitution, any state constitutional
       claim is waived.”). Accordingly, we agree with the State that this argument is waived. See Ind. Appellate
       Rule 46(A).

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                Page 9 of 26
       warrant supported by probable cause. U.S. Const. amend. IV. “The

       fundamental purpose of the Fourth Amendment to the United States

       Constitution is to protect the legitimate expectations of privacy that citizens

       possess in their persons, their homes, and their belongings.” Taylor v. State, 842

       N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states

       through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999

       (Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this

       rule is generally not admissible in a prosecution against the victim of the

       unlawful search or seizure absent evidence of a recognized exception.” Clark,

       994 N.E.2d at 260.


[22]   The State argues that the officers lawfully viewed Combs’ van without

       conducting a search under the Fourth Amendment and, therefore, the seizure of

       Combs’ van was valid under the open view doctrine as evidence of a crime. 6

       This argument diverges from the trial court’s order, 7 which allowed seizure of

       the vehicle under the plain view doctrine rather than the open view doctrine.




       6
         The State also argues that Combs waived this argument by failure to raise a cogent argument in his briefs.
       Combs’ substantive analysis on this issue spans one sentence. We, however, will address the issue because,
       although appellant’s brief was severely lacking, the arguments made at trial and in the motion to suppress on
       this issue are sufficient for us to conduct a meaningful review. Although we address this issue, we again
       instruct counsel to review Indiana Appellate Rule 46, specifically, the requirement for cogent arguments.
       7
         We note that the State has advanced several theories for the search of the vehicle, and the trial court denied
       the suppression of the evidence on varying theories. Specifically, Lieutenant Mount initially testified that “he
       was leaning toward towing [the van] as evidence of a crime and that the subsequent inventory search was
       done pursuant to policy, tr. vol. II p. 53; however, Lieutenant Mount also testified that the officers decided
       what they were going to do with the vehicle once they arrested Combs, which implies that the search was
       incident to arrest. At the hearing on the motion to suppress, the State argued the seizure was a discretionary


       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                  Page 10 of 26
                Often confused with the plain view doctrine is the concept of
                ‘open view,’ which is used in situations in which a law
                enforcement officer sees contraband from an area that is not
                constitutionally protected, but rather is in a place where the
                officer is lawfully entitled to be. In such situations, anything that
                is within ‘open view’ may be observed without having to obtain a
                search warrant because making such ‘open view’ observations
                does not constitute a search in the constitutional sense.
                Nonetheless, in order to lawfully seize items in ‘open view,’ it
                may be necessary to obtain a search warrant or be able to justify a
                warrantless seizure under an exception to the warrant
                requirement.


       McAnalley v. State, 134 N.E.3d 488, 501 (Ind. Ct. App. 2019), trans. denied.


[23]   In Houser v. State, 678 N.E.2d 95, 101 (Ind. 1997), our Supreme Court held that

       a warrant is not required to seize incriminating evidence under the plain view

       doctrine


                if the following conditions are met: (1) police have a legal right to
                be at the place from which the evidence can be plainly viewed;
                (2) the incriminating character of the evidence is immediately
                apparent; and (3) police have a lawful right of access to the object
                itself.


       Houser, 678 N.E.2d at 101. “The immediately apparent prong of the doctrine

       requires that the officer have probable cause to believe the evidence will prove

       useful in solving a crime.” Wilkinson v. State, 70 N.E.3d 392, 402 (Ind. Ct. App.




       impound. The trial court denied Combs’ motion to suppress, then denied Combs’ motion to reconsider and
       found the State did not rely on the automobile exception, but instead, the plain view doctrine. On appeal, the
       State argues only that the open view doctrine applies.

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                Page 11 of 26
       2017) (quotations omitted). “Probable cause requires only that the information

       available to the officer would lead a person of reasonable caution to believe the

       items could be useful as evidence of a crime. A practical, nontechnical

       probability that incriminating evidence is involved is all that is required.” 8

       Taylor v. State, 659 N.E.2d 535, 539 (Ind. 1995) (quotations and citations

       omitted).


[24]   We do not find the open view or plain view doctrines to be operable here. It is

       clear from the record that the towing and impound search of the vehicle were

       merely pretextual means by which officers could search the vehicle to find

       incriminating evidence.


[25]   Witnesses reported to officers that Combs looked for something under his seat,

       and Officer Koontz asked to search the vehicle early in his investigation.

       Combs declined to consent. The vehicle was parked in Combs’ driveway, and

       officers had time to procure a warrant before searching the vehicle, but they

       declined to do so due to the inconvenience. At the hearing on the motion to

       suppress, Lieutenant Mount initially testified that the officers seized the vehicle

       as evidence of a crime. Photographs of the vehicle, however, were not admitted

       into evidence at trial, and the record reveals that the vehicle was returned to

       Combs’ wife two days after it was towed from Combs’ driveway.




       8
         We observe that the State’s argument and the cases the State cites discuss probable cause in the context of
       the open view doctrine and not the automobile exception. Accordingly, we will focus on this area of
       probable cause in our opinion as well.

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                 Page 12 of 26
[26]   Combs admitted that he was going to contact law enforcement regarding the

       accident; therefore, it is not clear why the officers needed the van to solve the

       crime. The State presented no evidence that the van would “prove useful in

       solving” the investigations into the charges of leaving the scene of an accident

       or driving while intoxicated. Wilkinson, 70 N.E.3d at 402. The damage was on

       the outside of the vehicle and photographs of the vehicle could have preserved

       the evidence. Nothing in the record indicates that the officers had probable

       cause to believe the van contained evidence that was related to the offenses

       being investigated.


[27]   The record supports the finding that the officers’ inventory search was a pretext

       for searching Combs’ van. 9 See Fair, 627 N.E.2d at 436 (finding the inventory

       search at issue “presents several indicia of pretext which raise a question about

       whether it was conducted in good faith”); see also Sams v. State, 71 N.E.3d 372,

       382 (Ind. Ct. App. 2017) (finding that a search is “pretextual and therefore

       unreasonable” when “any administrative benefits of the officers’ inventory

       search were incidental to the investigative benefits when the law required the

       opposite”); see cf. Widduck v. State, 861 N.E.2d 1267, 1271 (Ind. Ct. App. 2007)

       (finding that the inventory search was reasonable under the Fourth

       Amendment, in part, because “the record before [the court was] devoid of any

       indicia of pretext or subterfuge for general rummaging”). Here, we find indicia



       9
         The fact that the State admitted as an exhibit at the motion to suppress hearing the police department policy
       regarding impoundment of vehicles and the subsequent inventory searches does not overcome the pretextual
       facts we observe in this record.

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                 Page 13 of 26
       of pretext to search Combs’ vehicle for incriminating evidence; accordingly, the

       search was unreasonable. We conclude that the search of Combs’ vehicle was

       impermissible under the open view and plain view doctrines and the Fourth

       Amendment.


[28]   In considering the admissibility of evidence obtained from an illegal search, we

       must consider the fruit of the poisonous tree doctrine.


               The fruit of the poisonous tree doctrine bars the admission of
               evidence “directly obtained by [an] illegal search or seizure as
               well as evidence derivatively gained as a result of information
               learned or leads obtained during that same search or seizure.”
               To invoke the doctrine, a defendant must first prove a Fourth
               Amendment violation and then must show the evidence was a
               “fruit” of the illegal search. But the exclusion of evidence is not
               the result of a simple “but for” test. The doctrine has no
               application where (1) “evidence [is] initially discovered during,
               or as a consequence of, an unlawful search, but [is] later obtained
               independently from activities untainted by the initial illegality,” .
               . . ; (2) “the information ultimately or inevitably would have been
               discovered by lawful means,” . . . or (3) “the connection between
               the lawless conduct of the police and the discovery of the
               challenged evidence has ‘become so attenuated as to dissipate the
               taint,’ . . . The burden is on the State to prove one of these
               exceptions applies.


       Ogburn v. State, 53 N.E.3d 464, 475 (Ind. Ct. App. 2016) (quotations and

       citations omitted), trans. denied.


[29]   Here, the discovery of the evidence obtained from the vehicle was a direct result

       of the pretextual and illegal search of Combs’ van. There is also no indication

       that the evidence from the van could have been obtained in another way.
       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020           Page 14 of 26
       Moreover, the connection between the search and the evidence is not

       attenuated to such a point that we could conclude it is no longer tainted. See

       also Wright v. State, 108 N.E.3d 307, 315 (Ind. 2018) (holding that the Fourth

       Amendment requires that “the objected-to-evidence will be excluded as fruit of

       the poisonous tree if police obtained it by exploiting the primary illegality”). 10


[30]   The officers violated Combs’ Fourth Amendment rights by searching his vehicle

       without a warrant, and the evidence obtained from the search was fruit of the

       poisonous tree. Specifically, the pills found in Combs’ vehicle should not have

       been admitted at trial. Those pills formed the basis for Combs’ convictions for

       Counts I, II, and III. Accordingly, we reverse Combs’ convictions for Counts I,

       II, and III, and we remand for proceedings consistent with our opinion.




       10
          For the reasons discussed above, we also conclude that impoundment of the vehicle would have been
       invalid. Law enforcement may have authority to impound a vehicle either through statute or law
       enforcement’s community caretaking function. Wilford v. State, 50 N.E.3d 371, 375 (Ind. 2016). Our
       Supreme Court:

               [has] set forth a strict two-prong standard for proving that the decision to impound a
               person’s vehicle without a warrant was reasonable:

                        (1) Consistent with objective standards of sound policing, an officer must believe
                        the vehicle poses a threat of harm to the community or is itself imperiled; and

                        (2) The officer’s decision to impound adhered to established departmental
                        routine or regulation.

       Id. at 375-76 (quoting Fair v. State, 627 N.E.2d 427, 433 (Ind. 1993)). Combs’ vehicle, parked in
       his driveway, would not have posed a threat of harm to the community; nor was the vehicle itself
       imperiled. See Fair, 627 N.E.2d at 435 (concluding that impounding the defendant’s vehicle was
       improper even when the vehicle was not parked at the defendant’s home, but “the permissibility of
       it remaining at the complex was in the hands of his acquaintances”).



       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                                 Page 15 of 26
                                              B. Chemical Test Results

[31]   Next, Combs argues that the trial court abused its discretion in admitting the

       certified chemical results pursuant to Indiana Code Section 9-30-6-6(a) because

       the State was unable to prove that the person who drew blood from Combs

       acted under the direction of or under a protocol prepared by a physician.

       Indiana Code Section 9-30-6-6(a) states:


               (a) A physician, a person trained in retrieving contraband or
               obtaining bodily substance samples and acting under the
               direction of or under a protocol prepared by a physician, or a
               licensed health care professional acting within the professional’s
               scope of practice and under the direction of or under a protocol
               prepared by a physician, who:


                        (1) obtains a blood, urine, or other bodily substance
                        sample from a person, regardless of whether the sample is
                        taken for diagnostic purposes or at the request of a law
                        enforcement officer under this section;


                        (2) performs a chemical test on blood, urine, or other
                        bodily substance obtained from a person; or


                        (3) searches for or retrieves contraband from the body
                        cavity of an individual;


               shall deliver the sample or contraband or disclose the results of
               the test to a law enforcement officer who requests the sample,
               contraband, or results as a part of a criminal investigation.
               Samples, contraband, and test results shall be provided to a law
               enforcement officer even if the person has not consented to or
               otherwise authorized their release.


       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020            Page 16 of 26
[32]   First, we agree with the State that Combs has waived this issue because he did

       not raise non-compliance with Indiana Code Section 9-30-6-6(a) below. See

       Shorter v. State, 144 N.E.3d 829, 841 (Ind. Ct. App. 2020) (quoting Washington v.

       State, 808 N.E.2d 617, 625 (Ind. 2004)) (concluding that failure to raise an

       argument in the trial court constituted waiver on appeal because “‘a trial court

       cannot be found to have erred as to an issue or argument that it never had an

       opportunity to consider’”). Waiver notwithstanding, Tiffany Long, a lab

       phlebotomist at Witham Health Services, who conducted Combs’ blood draw,

       testified that she followed a specific protocol required for blood draws, and that

       the procedure, therefore, was approved by a physician. 11 Long then testified in

       detail about the process, which included inverting the tubes of blood, labeling

       the samples, placing the samples in a biohazard bag, taping the bags shut, and

       placing them in a lock box. The trial court did not abuse its discretion in

       admitting the evidence of the chemical blood draw.


                                            II.      Request to replace juror

[33]   Combs next argues the trial court erred in refusing his request to replace a juror

       after the juror disclosed, after the trial began, that he knew one of the State’s

       witnesses. “Trial courts have broad discretion in deciding whether to remove

       and replace a juror before deliberations have begun and, in such circumstances,




       11
            The name of the physician who approved the procedure was not given at trial.


       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                    Page 17 of 26
       we reverse only for an abuse of discretion.” Durden v. State, 99 N.E.3d 645, 650

       (Ind. 2018) (citations omitted).


[34]   During the State’s case-in-chief, the trial court was advised that a juror formerly

       worked at a pharmacy that Lieutenant Mount frequented. The juror did not

       initially recognize Lieutenant Mount’s name on the witness list during voir dire.

       When questioned about the nature of the juror’s relationship to Lieutenant

       Mount, the juror stated that: (1) he and Lieutenant Mount did not have a social

       relationship; (2) the juror was no longer in contact with Lieutenant Mount; but

       (3) the juror thought positively of Lieutenant Mount. The juror told the trial

       court that the juror could consider the “big picture” of all the evidence in

       reaching a result in the case. Tr. Vol. III p. 68. Combs requested that the juror

       be replaced by an alternate juror, which the trial court denied.


[35]   We cannot say the trial court abused its discretion. The juror advised the trial

       court his familiarity with Lieutenant Mount would not prevent him from

       considering and weighing the evidence independently. Moreover, the juror

       knew Lieutenant Mount professionally, not socially, and the two were no

       longer in contact. Accordingly, the trial court did not abuse its discretion in

       declining to replace the juror with an alternate juror.




       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020         Page 18 of 26
                                         III.     Prosecutorial Misconduct

[36]   Combs argues the prosecutor committed misconduct by improperly shifting the

       State’s burden of proof at trial to Combs regarding certain evidence. 12 During

       the defense’s case-in-chief, Vicki Combs (“Vicki”), Combs’ wife, testified that

       the pills belonged to Vicki’s family members and that Vicki’s family members

       had prescriptions for the pills. During Vicki’s testimony, the following colloquy

       occurred on cross-examination:


               [DEPUTY PROSECUTOR]: And of course this happened about
               two and a half (2-1/2) years ago, right?


               [VICKI]: Correct.


               [DEPUTY PROSECUTOR]: Alright. And it is your testimony
               today that the pills found in the bag belonged to your, and I
               apologize, grandmother?


               [VICKI]: My mother, grandmother, father, they were a
               culmination of, of all that she [sic] was finding at the house.


               [DEPUTY PROSECUTOR]: So you [have] had two and a half
               (2-1/2) years to perhaps get some prescription records for your
               mother, grandmother, is that right?


               [COMBS’ COUNSEL]: Objection Judge. May we approach?




       12
         We observe that this issue is likely a moot point on remand as we have decided that admission of items in
       the van, which includes the pills, was improper.

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                               Page 19 of 26
       Tr. Vol. IV p. 174. Combs objected on the grounds that this question left the

       jury with the belief “that the defense had a duty to produce exculpatory

       evidence, instead of the true requirement that the jury must find that the State

       themselves produced sufficient evidence” to support Combs’ convictions.

       Appellant’s Br. p. 27. The trial court sustained Combs’ objection insofar as

       how the State asked the question, i.e., why Vicki did or did not produce any

       documentation to support her claim that the pills belonged to her family

       members; however, the trial court allowed the State to ask Vicki whether she

       produced such documentation.


[37]   When reviewing a claim of prosecutorial misconduct, we must determine

       whether the prosecutor: (1) engaged in misconduct that, (2) under all of the

       circumstances, placed the defendant in a position of grave peril to which he or

       she would not have been otherwise subjected. Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014); see also Nichols v. State, 974 N.E.2d 531, 535 (Ind. Ct. App.

       2012). “‘Whether a prosecutor’s argument constitutes misconduct is measured

       by reference to case law and the Rules of Professional Conduct.’” Nichols, 974

       N.E.2d at 535 (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We

       measure the weight of the peril by the probable persuasive effect of the

       misconduct on the jury rather than the degree of impropriety of the

       conduct. Id.


[38]   We are not persuaded that the State’s question resulted in improper burden-

       shifting. As the State articulates in its brief, the deputy prosecutor’s question

       was “aimed at illuminating the suspicious timing of [Vicki’s] claims of

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020             Page 20 of 26
       Defendant’s innocence and was relevant to the jury’s assessment of her

       credibility.” Appellee’s Br. p. 42. Moreover, as the State also argues, the final

       jury instructions explained the State’s burden to prove each element of the

       crime beyond a reasonable doubt. Based on the record before us, Combs has

       failed to demonstrate that the deputy prosecutor committed misconduct.


                                          IV.      Insufficiency of Evidence

[39]   Combs argues the evidence is insufficient to support his convictions for

       operating while intoxicated and leaving the scene of a property damage

       accident. When a challenge to the sufficiency of the evidence is raised, “[w]e

       neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51

       N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind.

       1985), cert. denied), cert. denied. Instead, “we ‘consider only that evidence most

       favorable to the judgment together with all reasonable inferences drawn

       therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the

       judgment if it is supported by ‘substantial evidence of probative value even if

       there is some conflict in that evidence.’” Id.; see also McCallister v. State, 91

       N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting

       evidence, it was “beside the point” because that argument “misapprehend[s]

       our limited role as a reviewing court”). “We will affirm the conviction unless

       no reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007)).



       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020             Page 21 of 26
                                         A. Operating While Intoxicated

[40]   Pursuant to Indiana Code Section 9-30-5-2(b), “a person who operates a vehicle

       while intoxicated,” commits operating a vehicle while intoxicated. If the

       operation is done “in a manner that endangers a person,” the offense is a Class

       A misdemeanor. Ind. Code § 9-30-5-2(b). Combs argues the evidence was

       insufficient that: (1) Combs was the driver of the vehicle; and (2) intoxication

       occurred contemporaneously with his operation of the vehicle.


[41]   Regarding Combs’ first argument, the State provided sufficient evidence that

       Combs operated the vehicle. One of the witnesses to the accident testified that

       the driver who left the scene of the accident was the same person she later

       observed speaking with the police in Combs’ driveway. See Tr. Vol. III p. 12. 13

       Moreover, moments after the accident was reported, Officer Koontz observed

       Combs exit the driver’s side of the vehicle. According to the officers, Combs

       claimed he intended to call the police to report the accident, which supports the

       inference that Combs was the driver. The evidence was sufficient to prove that

       Combs operated the van.


[42]   In addition, the evidence also supported the finding that Combs operated the

       van while intoxicated. Officer Koontz identified Combs’ pinpoint pupils, slow

       speech, and glassy eyes. Combs failed two field sobriety tests. The blood and

       urine tests administered shortly after Combs drove the vehicle revealed positive



       13
         The witness did not identify Combs in the courtroom; however, the witness was clear that the person she
       saw at the scene of the accident was the same person she saw speaking with the police in Combs’ driveway.

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020                              Page 22 of 26
       results for controlled substances. Dr. Sheila Arnold, a forensic toxicologist with

       the Indiana State Department of Toxicology, testified that the concentrations of

       substances found in Combs’ system “were consistent with the impairment

       observed by the officer.” Tr. Vol. IV p. 113. Specifically, Dr. Arnold testified

       that pinpoint pupils are a “classic indicator” of opioids in an individual’s

       system. Id. at 120.


[43]   Combs’ arguments that: (1) we cannot determine the precise time of

       intoxication; and (2) Combs could not have been intoxicated because he was

       able to avoid an accident with another vehicle, are merely requests for us to

       reweigh evidence, which we cannot do. See Gibson, 51 N.E.3d at 210. The

       evidence was sufficient to find Combs guilty of operating while intoxicated.


                                      B. Leaving the Scene of an Accident

[44]   Combs next argues that the evidence was insufficient to support Combs’

       conviction for leaving the scene of an accident. Combs was charged under

       Indiana Code Sections 9-26-1-1.1(a)(4) and (b).


               (a) The operator of a motor vehicle involved in an accident shall
               do the following:


                        (1) Except as provided in section 1.2 of this chapter, the
                        operator shall immediately stop the operator’s motor
                        vehicle:


                                 (A) at the scene of the accident; or


                                 (B) as close to the accident as possible;

       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020              Page 23 of 26
                 in a manner that does not obstruct traffic more than is
                 necessary.


                 (2) Remain at the scene of the accident until the operator
                 does the following:


                          (A) Gives the operator’s name and address and the
                          registration number of the motor vehicle the
                          operator was driving to any person involved in the
                          accident.


                          (B) Exhibits the operator's driver's license to any
                          person involved in the accident or occupant of or
                          any person attending to any vehicle involved in the
                          accident.


                                                *****


                 (4) If the accident involves a collision with an unattended
                 vehicle or damage to property other than a vehicle, the
                 operator shall, in addition to the requirements of
                 subdivisions (1) and (2):


                          (A) take reasonable steps to locate and notify the
                          owner or person in charge of the damaged vehicle
                          or property of the damage; and


                          (B) if after reasonable inquiry the operator cannot
                          find the owner or person in charge of the damaged
                          vehicle or property, the operator must contact a law
                          enforcement officer or agency and provide the
                          information required by this section.




Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020               Page 24 of 26
               (b) An operator of a motor vehicle who knowingly or
               intentionally fails to comply with subsection (a) commits leaving
               the scene of an accident, a Class B misdemeanor.


       Ind. Code § 9-26-1-1.1. Combs argues that the statute did not require Combs to

       stay at the scene of the accident to determine the owner of the property and/or

       contact law enforcement.


[45]   “When interpreting a statute, our primary goal is to fulfill the legislature’s

       intent.” Day v. State, 57 N.E.3d 809, 813 (Ind. 2016). The best evidence of the

       legislature’s intent is the statute’s language. See id. “If that language is clear

       and unambiguous, we simply apply its plain and ordinary meaning, heeding

       both what it does say and what it does not say.” Id. (quotations omitted).


[46]   Here, the statute contemplates what a person must do, under Indiana Code

       Section 9-26-1-1.1(a)(4), when a driver is in an accident that results in property

       damage. That subsection of the statute specifically states the requirements are

       in addition to the mandate of Indiana Code Section 9-26-1-1.1(a)(2), under

       which a driver must remain at the scene of an accident. The statute does not

       provide that, in the event of property damage, a person may drive away and call

       law enforcement at a later, more convenient time. Accordingly, the statute

       required Combs to determine the owner of the property or contact law

       enforcement at the scene of the accident.


[47]   Sufficient evidence supports Combs’ conviction for leaving the scene of an

       accident. Witness testimony revealed that Combs hit the electrical box, got out


       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020           Page 25 of 26
       of his vehicle, took photographs with his phone, drove away from the scene,

       and went home. Accordingly, the evidence was sufficient to convict Combs of

       leaving the scene of an accident, a Class B misdemeanor.


                                                    Conclusion

[48]   The warrantless search of Combs’ vehicle violated his Fourth Amendment

       rights; therefore, evidence found as a result of the illegal search should have

       been excluded. Accordingly, we reverse Combs’ convictions for Counts I, II,

       and III, and remand for proceedings consistent with this opinion. The trial

       court, however, did not abuse its discretion in admitting the results of Combs’

       chemical blood test or in failing to replace a juror with the alternate juror. The

       deputy prosecutor did not commit misconduct, and the evidence was sufficient

       to convict Combs of leaving the scene of an accident and operating a vehicle

       while intoxicated. Accordingly, we affirm in part, reverse in part, and remand

       for proceedings consistent with our opinion.


[49]   Affirmed in part, reversed in part, and remanded.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020         Page 26 of 26
