MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Dec 22 2017, 6:53 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Suzy St. John                                           Curtis T. Hill, Jr.
Marion County Public Defender                           Attorney General of Indiana
Indianapolis, Indiana
                                                        Jesse R. Drum
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jorge Giron,                                            December 22, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1706-CR-1246
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Steven Rubick,
Appellee-Plaintiff                                      Magistrate
                                                        Trial Court Cause No.
                                                        49G01-1607-F5-26654



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017      Page 1 of 5
[1]   Jorge Giron appeals his convictions for Level 5 Felony Operating a Vehicle

      After a Lifetime Suspension1 and Class A Misdemeanor Operating a Vehicle

      While Intoxicated.2 He argues that the trial court misapplied the burden of

      proof. Finding no error, we affirm.


                                                    Facts
[2]   On the evening of July 10, 2016, Giron, a habitual traffic violator with a

      lifetime driver’s license suspension, was driving alone in his truck near an

      intersection in Indianapolis. He ran a stop sign and struck a truck driven by

      Jonathan Mills. After the collision, Mills called 911 and parked his truck in

      front of Giron’s truck to prevent him from driving away. Mills testified that

      when Giron exited his vehicle, he was stumbling and slurring his speech.


[3]   Indianapolis Metropolitan Police Officer John Dicicco responded to the scene.

      After determining that Giron had a lifetime suspension, Officer Dicicco

      observed that Giron struggled to keep his balance, had red, watery eyes, slurred

      his speech, and smelled like alcohol. Suspecting that Giron was intoxicated,

      Officer Dicicco arrested him and obtained a warrant for a blood draw, which

      revealed Giron’s blood alcohol concentration was .15.


[4]   On July 12, 2016, the State charged Giron with Level 5 felony operating a

      vehicle after a lifetime suspension and Class A misdemeanor operating a



      1
          Ind. Code § 9-30-10-17(a)(1).
      2
          I.C. § 9-30-5-2.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017   Page 2 of 5
      vehicle while intoxicated. Giron waived his right to a jury trial and on April 18,

      2017, the trial court conducted a bench trial. At trial, Giron testified that he

      had been drinking but that he had not been driving the truck and that the driver

      had left the scene. After closing statements, the trial court found Giron guilty

      as charged and stated that “[Giron’s] uncorroborated story would have been

      helped had this heretofore unidentified driver appeared today, but he didn’t.”

      Tr. Vol. II p. 39. Giron did not object to this statement.


[5]   At a May 12, 2017, sentencing hearing, the trial court sentenced Giron to

      concurrent terms of three years for operating a vehicle after a lifetime

      suspension and one year for operating a vehicle while intoxicated. After giving

      him credit for time served, the trial court ordered Giron to serve the balance of

      his sentence on home detention. He now appeals.


                                   Discussion and Decision
[6]   Giron’s sole argument on appeal is that the trial court misapplied the burden of

      proof. There is “a strong presumption on appeal” that the trial court has

      applied the correct burden of proof. Moran v. State, 622 N.E.2d 157, 159 (Ind.

      Ct. App. 1993). To rebut this presumption, the record must establish with

      “clarity and certainty” that the trial court used an erroneous standard. Id.

      Further, a failure to object at trial waives an issue for review unless fundamental

      error has occurred. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012). “In

      order to be fundamental, the error must represent a blatant violation of




      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017   Page 3 of 5
      principles rendering the trial unfair to the defendant and thereby depriving the

      defendant of due process.” Id.


[7]   Giron argues that the trial court’s statement regarding his failure to call the

      alleged driver improperly implied that he bore the burden of proof and that the

      trial court drew an adverse inference from his failure to call that witness. We

      disagree.


[8]   While it would have been better for the trial court to address the State’s

      evidence first, the statement was made in the context of weighing conflicting

      testimony and is immediately followed by a summary of the evidence presented

      by the State. The trial court ended its explanation by stating that the “State has

      met its burden as to both counts” and, beyond this lone statement, nothing in the

      record suggests that the trial court placed the burden of proof on Giron or that it

      drew an adverse inference from his failure to call the alleged driver. Tr. Vol. II

      p. 39 (emphasis added). As such, we cannot say with clarity and certainty that

      the trial court applied the incorrect standard, let alone that he received an unfair

      trial because of the statement.3 Therefore, we find no error, fundamental or

      otherwise.




      3
        Giron devotes a substantial portion of his brief to discussing State v. Brewer, 505 A.2d 774 (Me. 1985), which
      is not controlling precedent and is factually distinguishable from the case before us.

      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017            Page 4 of 5
[9]   The judgment of the trial court is affirmed.


      Riley, J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1706-CR-1246 | December 22, 2017   Page 5 of 5
