MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any
                                                                        Nov 07 2017, 6:26 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
Ann M. Sutton                                           Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Indianapolis, Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew Williams,                                       November 7, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1703-CR-620
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable James B. Osborn,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G19-1604-CM-14406



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017          Page 1 of 10
                                          Case Summary
[1]   Matthew Williams (“Williams”) appeals his conviction for Operating a Vehicle

      While Intoxicated, Endangering a Person, a Class A misdemeanor.1 We affirm.



                                                   Issues
[2]   Williams presents three issues for review:


                 I.       Whether the trial court abused its discretion in the
                          admission of evidence;


                 II.      Whether the State presented sufficient evidence of
                          endangerment to support the elevation of his offense to a
                          Class A misdemeanor; and


                 III.     Whether the trial court erred in ordering the payment of
                          probation fees.


                                Facts and Procedural History
[3]   At around 2:30 a.m. on April 17, 2016, Marion County Deputy Sheriffs

      Landon Walker and Cynthia Milan, who had just completed a work shift, were

      traveling in separate vehicles on 38th Street near Central Avenue in

      Indianapolis. A vehicle passed at a high rate of speed, and the officers observed




      1
          Ind. Code § 9-30-5-2(b).


      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 2 of 10
      that it was being driven erratically. After the driver ran a red light, Deputy

      Walker initiated a traffic stop.


[4]   The driver, Williams, stopped his vehicle. Deputy Walker requested that

      Williams produce a driver’s license and a vehicle registration. Williams was

      initially cooperative but he could not remember where he had placed his wallet

      and he stated that the vehicle lacked registration because it was newly

      purchased. The license plates belonged to another vehicle. Deputy Walker

      observed that Williams’ eyes were glossy and blood shot. His speech was

      slurred and he smelled strongly of alcohol.


[5]   Deputy Walker administered three field sobriety tests to Williams. The tests

      were observed by Deputy Milan and a third officer who had stopped to assist,

      Deputy Charles McClain. The deputies determined that Williams had failed

      each of the field sobriety tests and placed him under arrest. Upon his arrest,

      Williams became verbally hostile, cursing and name-calling. He refused the

      offer of a chemical test.


[6]   On April 17, 2016, the State charged Williams with driving while intoxicated.

      On February 17, 2017, a jury found Williams guilty as charged. He was

      sentenced to 365 days imprisonment, with 364 days suspended to probation.

      Williams now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 3 of 10
                                Discussion and Decision
                       Exclusion of Video Pre-trial Statement
[7]   Williams asserts that he was denied a fair trial because the trial court excluded

      from evidence Deputy Walker’s videotaped pre-trial statement. The admission

      and exclusion of evidence are matters that rest within the sound discretion of

      the trial court. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). Such decisions

      are reviewed on appeal only for an abuse of discretion, which occurs when the

      trial court’s decision is clearly against the logic and effect of the facts and

      circumstances before the court, or if the court has misinterpreted the law.

      Hastings v. State, 58 N.E.3d 919, 922 (Ind. Ct. App. 2016).


[8]   Deputy Walker testified that he had administered three field sobriety tests to

      Williams. These were a horizontal gaze nystagmus (“HGN”) test, a walk-and-

      turn test, and a one-leg stand test. During his direct examination and cross-

      examination, Deputy Walker was asked to explain specifically the steps

      involved in each test, describe the “clues” for intoxication that he was looking

      for, and testify to exactly how many “clues” he observed during each of

      Williams’ tests. (Tr. Vol. II, pg. 91.) During cross-examination, Deputy

      Walker testified that he did not believe he could remember all the “clues” in all

      three tests and the trial court commented that some of the deputy’s testimony

      describing steps in the testing seemed inconsistent. (Tr. Vol. II, pg. 118.) The

      jury was excused and a bench conference ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 4 of 10
[9]    Defense counsel proposed the introduction into evidence of Deputy Walker’s

       videotaped pre-trial statement, in its entirety. The State pointed out that,

       without redaction, the statement would reference at least one prior driving-

       while-intoxicated conviction to which Williams had admitted and the State

       feared invoking a mistrial. The trial court informed defense counsel that prior

       inconsistent statements, but not prior consistent statements, would be

       admissible and counsel conceded that he did not propose to redact the

       statement in any manner. The trial court excluded the videotaped statement

       from evidence, reasoning that Williams had “accomplished” impeachment by

       eliciting the deputy’s cross-examination responses, (Tr. Vol. II, pg. 126), and

       further reasoning that judicial economy would be served by declining to

       interrupt the trial to permit redaction. Williams asked to make an “offer of

       proof;” that is, the entire unredacted statement would serve as his offer of proof.

       (Tr. Vol. II, pg. 138.)


[10]   On appeal, Williams argues that the trial court excluded relevant evidence and

       that its exclusion was prejudicial to him:


               The defense was prejudiced by not being allowed to play the tape
               and then argue to the jury that perhaps this Officer, due to his
               confusion over the field sobriety testing in general, should not
               have relied solely on his inherently subjective testing, and instead
               should have secured a warrant for a blood test. There was a
               more detailed discussion of the failure to secure a warrant for a
               blood test during the taped statement. Mr. Williams deserves a
               full and fair trial, with the admission of evidence relevant to his
               defense. The Court erred in failing to admit the taped statement,
               based on an incorrect conclusion that only inconsistent

       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 5 of 10
               statements were admissible, and that judicial economy regarding
               the remaining parts of the tape trumped Mr. Williams’ right to a
               defense.


       Appellant’s Brief at 10.


[11]   In essence, Williams urges that the videotaped statement would have had such

       great impeachment value that the jury could conclude that the results of the

       field sobriety tests were unreliable and, Williams could not be convicted of a

       charge requiring proof of intoxication absent a blood test.


[12]   Deputy Walker had demonstrated varying recollection of how many clues he

       had observed in conducting the field sobriety tests. He admitted as much in

       cross-examination. Importantly, however, the deputy never wavered in his

       assessment that Williams had failed each test or that he was intoxicated.

       Indeed, all three deputies observed visible signs of Williams’ intoxication and

       formed the opinion that he was intoxicated. Admitting the videotaped

       statement in its entirety and bringing attention to the discrepancy in the number

       of clues would have had minimal, if any, impeachment value. Williams has

       shown no reversible error. See Ind. Trial Rule 61 (appellate courts “must

       disregard any error or defect in the proceeding which does not affect the

       substantial rights of the parties”).


                                  Sufficiency of the Evidence
[13]   To convict Williams of Operating a Vehicle While Intoxicated, Endangering a

       Person, as charged, the State was required to establish beyond a reasonable


       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 6 of 10
       doubt that Williams operated his vehicle, while intoxicated, in a manner that

       endangered a person. I.C. § 9-30-5-2(b). A person is intoxicated when he or

       she is under the influence of alcohol such that there is an impaired condition of

       thought and action and the loss of normal control of a person’s faculties. I.C. §

       9-13-2-86.


[14]   Williams does not claim that the evidence of his intoxication or operation of a

       vehicle was deficient. He challenges only the element elevating the offense

       from a Class C misdemeanor to a Class A misdemeanor, that is, endangering a

       person. Evidence of intoxication does not, without more, prove

       “endangerment.” Outlaw v. State, 929 N.E.2d 196, 196 (Ind. 2010). However, it

       is sufficient that the defendant’s intoxication resulted in unsafe driving practices

       such that the public, police, or the defendant could have been endangered.

       Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011), trans. denied.


[15]   For a sufficiency of the evidence claim, we look only to the probative evidence

       and reasonable inferences therefrom which support the verdict. Love v. State, 73

       N.E.3d 693, 696 (Ind. 2017). We do not assess the credibility of witnesses and

       we do not reweigh the evidence. Id. We will affirm the conviction unless no

       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt. Id.


[16]   Deputy Walker testified that Williams’ vehicle passed him, traveling at a “high

       rate of speed.” (Tr. Vol. II, pg. 73.) He and Deputy Milan each characterized

       Williams’ driving as erratic. Williams had intermittently hit his brakes, without


       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 7 of 10
       apparent reason, and crossed over the white line dividing lanes. Finally, the

       deputies had observed Williams run a red light. From this evidence of unsafe

       driving practices, a reasonable fact-finder could conclude beyond a reasonable

       doubt that Williams had endangered a person.


                                Sliding Scale Probation Fees
[17]   At the sentencing hearing, Williams requested that he be placed on probation

       and be subject to a sliding scale for probation fees. The trial court found

       Williams indigent for purposes of appointment of appellate counsel, and stated

       that “fines and costs are waived based upon your indigency.” (Tr. Vol. III, pg.

       12.)


[18]   On appeal, Williams challenges the written sentencing order that requires him

       to pay “Monetary Obligations” in the amount of $790.00, specifically:


               Adult Probation Administrative Fee                           50.00
               Adult Probation Monthly and Initial Fee                     281.30
               Alcohol and Drug Counter Fee- County                        150.00
               Alcohol and Drug Countermeasure Fee                          50.00
                  State
               Alcohol/Drug Program User Fee                               250.00
               Probation User Fee – Clerk’s 3% - CR                          8.70


[19]   Williams argues that the finding of indigence relieves him of any monetary

       obligation and that the imposition of probation fees on a sliding scale may not

       be delegated to the probation department. He asks that we remand the

       sentencing order for correction to reflect that he owes no monetary obligation.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 8 of 10
[20]   When a defendant is convicted of a misdemeanor, our legislature has given to

       the trial court, and not the probation department, discretionary authority to

       impose certain probation fees. Burnett v. State, 74 N.E.3d 1221, 1227 (Ind. Ct.

       App. 2017). Indiana Code Section 35-38-2-1(e) provides:


               In addition to any other conditions of probation, the court may
               order each person convicted of a misdemeanor to pay:


               (1) not more than a fifty dollar ($50) initial probation user’s fee;


               (2) a monthly probation user’s fee of not less than ten dollars
                   ($10) nor more than twenty dollars ($20) for each month that
                   the person remains on probation;


               (3) the costs of the laboratory test or series of tests to detect
                   …HIV … and


               (4) an administrative fee of fifty dollars ($50);


               to either the probation department or the clerk.


[21]   Indiana Code Section 33-37-5-10(a)(1)(A) provides for collection of an alcohol

       and drug countermeasures fee of $200.00 when a person is found to have

       “committed an offense under IC 9-30-5.” Indiana Code Section 33-37-5-8

       provides for an alcohol and drug services program fee “set by the court under

       IC 12-23-14-16.” Indiana Code Section 12-23-14-16 provides in relevant part:

       “The court may require an eligible individual to pay a fee for a service of a

       program … [which] may not exceed $400.00.”


       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 9 of 10
[22]   The foregoing-described fees are those imposed by the trial court. Its oral

       sentencing order did not purport to waive probation fees, only fines and costs;

       thus, there is no inconsistency. Moreover, the written sentencing order

       comports with Williams’ express requests for probation, community service,

       and sliding scale fees. To the extent that Williams now suggests that the

       probation department should not be involved in calculating sliding scale

       payments, Williams invited the alleged error and may not seek revision of the

       sentencing order on this basis. See Kelnhofer v. State, 857 N.E.2d 1022, 1024

       (Ind. Ct. App. 2006) (an appellant “cannot invite error and then request relief

       on appeal based upon that ground.”) Williams has demonstrated no sentencing

       error.



                                              Conclusion
[23]   Williams did not demonstrate an abuse of discretion in the trial court’s

       evidentiary rulings or sentencing order. His conviction is supported by

       sufficient evidence.


[24]   Affirmed.


       Baker, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1703-CR-620 | November 7, 2017   Page 10 of 10
