Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of                     Sep 11 2014, 9:02 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

MATTHEW D. ANGLEMEYER                              GREGORY F. ZOELLER
Marion County Public Defender                      Attorney General of Indiana
Indianapolis, Indiana
                                                   CYNTHIA L. PLOUGHE
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ALBERTO VILLALVA,                                  )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 49A02-1401-CR-26
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                            The Honorable Amy Jones, Judge
                            Cause No. 49F08-0406-CM-96205


                                       September 11, 2014
                MEMORANDUM DECISION - NOT FOR PUBLICATION


SHARPNACK, Senior Judge
                               STATEMENT OF THE CASE

       Alberto Villalva appeals his conviction of operating a vehicle while intoxicated, a

Class A misdemeanor. Ind. Code § 9-30-5-2 (2001).

       We affirm.

                                           ISSUES

       Villalva presents two issues for our review, which we restate as:

       I.     Whether the trial court abused its discretion by admitting into evidence
              testimony concerning the results of Villalva’s field sobriety tests.

       II.    Whether the trial court abused its discretion by admitting into evidence
              testimony concerning the results of Villalva’s portable breath test.

                         FACTS AND PROCEDURAL HISTORY

       In May 2004, Villalva drove a vehicle through a red light at an intersection, narrowly

avoiding a collision with a police car that was traveling through the intersection. The police

officer turned his car around, followed Villalva, and initiated a traffic stop. When the

officer made contact with Villalva, he smelled a strong odor of alcohol emanating from the

car and noticed other signs indicative of Villalva’s intoxication. The officer administered

three field sobriety tests, all of which Villalva failed. In addition, the officer administered

a portable breath test (PBT) which resulted in a “bad blow” but indicated the presence of

alcohol. Tr. p. 139. Subsequently, the officer administered a breath test on Villalva using

a BAC DataMaster. Villalva’s test printout, which was introduced into evidence at trial,

showed he had a BAC of .20.

       Based upon this incident, Villalva was charged with Count I operating a vehicle

while intoxicated, a Class A misdemeanor, Indiana Code section 9-30-5-2(b); Count II

                                              2
operating a vehicle while intoxicated, a Class A misdemeanor, Indiana Code section 9-30-

5-1(b) (2001); and Count III operating a vehicle without ever having been licensed, a Class

C misdemeanor, Indiana Code section 9-24-18-1 (1991). Prior to trial, Villalva pleaded

guilty to Count III, and a jury then found him guilty of Count I. The jury was hung on

Count II, which the State later dismissed. This appeal ensued.

                             DISCUSSION AND DECISION

       Both of Villalva’s claims address the trial court’s admission of evidence at trial.

The trial court is afforded wide discretion in ruling on the admissibility and relevancy of

evidence. Nicholson v. State, 963 N.E.2d 1096, 1099 (Ind. 2012). On appeal, evidentiary

decisions are reviewed for abuse of discretion and are reversed only when the decision is

clearly against the logic and effect of the facts and circumstances. Id.

        I. ADMISSION OF EVIDENCE - FIELD SOBRIETY TEST RESULTS

       Villalva first contends that the trial court abused its discretion by admitting the

officer’s testimony concerning the results of the field sobriety tests. In support of his

argument, Villalva cites Indiana Evidence Rule 804(a)(3) and avers that the officer could

not be sufficiently cross-examined because, pursuant to the evidentiary rule, the officer

was unavailable due to his lack of memory.

       Hearsay is a statement, other than one made at trial, that is offered into evidence to

prove the truth of the matter asserted. Ind. Evidence Rule 801(c). Evidence Rule 804

delineates instances when hearsay statements, which are otherwise inadmissible, can be

admitted as evidence based upon the unavailability of the witness. Rule 804(a)(3) states

that “[a] declarant is considered to be unavailable as a witness if the declarant testifies to

                                              3
not remembering the subject matter.” In the instant case, the admissibility of hearsay

evidence is not at issue. Neither Villalva nor the State requested admission of any hearsay

evidence. Instead, the crux of the issue is whether the officer’s testimony should have been

excluded based upon Villalva’s assertion that he could not sufficiently cross-examine the

officer as to his failure of the field sobriety tests because the officer did not remember

specific details of the way in which Villalva performed the tests.

        It is fundamental that the Confrontation Clause of the Sixth Amendment gives an

accused the right to confront the witnesses against him. See U.S Const. amend. VI.1

Generally, a witness is regarded as subject to cross-examination when he is placed on the

stand under oath and responds willingly to questions. United States v. Owens, 484 U.S.

554, 561, 108 S. Ct. 838, 98 L. Ed. 2d 951 (1988). The Confrontation Clause guarantees

only an opportunity for effective cross-examination, not cross-examination that is effective

in whatever way, and to whatever extent, the defendant might desire. Id. at 559. Moreover,

the Confrontation Clause includes no guarantee that every witness called by the State will

refrain from giving testimony that is “marred by forgetfulness, confusion, or evasion.”

Delaware v. Fensterer, 474 U.S. 15, 22, 106 S. Ct. 292, 88 L. Ed. 2d 15 (1985). To the

contrary, the Confrontation Clause is generally satisfied when the defense is given a full

and fair opportunity to “probe and expose these infirmities through cross-examination,




1
  Because Villalva presents no authority or independent analysis supporting a separate standard under the
state constitution, any state constitutional claim is waived. Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind.
2002).


                                                    4
thereby calling to the attention of the factfinder the reasons for giving scant weight to the

witness’ testimony.” Id.

       Here, the officer appeared at Villalva’s trial, took the stand and was placed under

oath, and provided substantial testimony about the incident that led to Villalva’s arrest for

operating while intoxicated. The officer testified that although there had been a lapse of

ten years between the incident and trial, he was able to specifically recall the incident

because Villalva narrowly missed colliding with his car when Villalva ran a red light. In

his testimony, the officer further detailed his observations of that night, including the strong

odor of alcohol emanating from Villalva’s car, Villalva’s bloodshot and “glazed over”

eyes, and his unsteady walking. Tr. p. 88. The officer also noticed that Villalva fumbled

with his wallet, had a difficult time getting out his identification card, and had to lean

against the officer’s car to maintain his balance. When asked about the field sobriety tests

that he administered to Villalva, the officer recalled the three tests that were given and that

Villalva had failed each test; however, the officer was unable to recall the details of

Villalva’s performance of the tests.

       Defense counsel then conducted a thorough cross-examination of the officer,

especially with regard to his administration of the field sobriety tests and Villalva’s

performance of the tests. Villalva was given a full and fair opportunity to expose the

officer’s lack of memory to the jury through his counsel’s comprehensive cross-

examination. The jury then had the opportunity to determine the weight to give the

officer’s testimony. Thus, the officer’s memory loss as to certain details of Villalva’s

performance of the field sobriety tests does not render his entire testimony inadmissible.

                                               5
Stated another way, the officer’s lack of memory goes to the weight of his testimony, not

the admissibility. Accordingly, we hold that the admission into evidence of the officer’s

testimony concerning the results of Villalva’s field sobriety tests did not offend the

Confrontation Clause despite his inability to recall certain details of the performance of the

tests. The trial court did not abuse its discretion.

                    II. ADMISSION OF EVIDENCE – PBT RESULTS

       Villalva also argues that the trial court erred by admitting the testimony of the officer

concerning Villalva’s PBT results. Generally, the results of PBT tests are inadmissible at

trial. State v. Whitney, 889 N.E.2d 823, 828 (Ind. Ct. App. 2008) (explaining that PBTs

are inadmissible at trial because they are not subjected to standards for test operators,

equipment, and administration as are chemical breath tests).

       In the instant case, the officer did not testify as to any numerical result of the PBT;

rather, he testified that the PBT registered “the presence of alcohol.” Tr. p. 100. Even

assuming for the sake of discussion that the trial court erred in allowing this testimony,

Villalva nonetheless cannot prevail on this issue. At Villalva’s trial, the officer testified

about Villalva’s failure to stop at a red traffic light, resulting in a near-collision with the

officer’s car, as well as the signs of intoxication he observed on the night of the incident.

The officer stated that he noticed a strong odor of alcohol emanating from Villalva’s car

and on his breath, that Villalva’s eyes were bloodshot and “glazed over,” that Villalva was

unsteady walking, that he fumbled with his wallet and his identification card, and that he

had to lean against the officer’s car to maintain his balance. Id. at 88. Further, the officer

testified that Villalva failed all three field sobriety tests that were administered to him. In

                                               6
addition, the result of Villalva’s chemical breath test showing his BAC of .20 was admitted

at trial.2 In sum, the testimony to which Villalva objects is cumulative of the State’s

evidence showing he was intoxicated. “Evidence that is merely cumulative is not grounds

for reversal.” Tobar v. State, 740 N.E.2d 106, 108 (Ind. 2000). The trial court did not

abuse its discretion.

                                           CONCLUSION

        For the reasons stated, we conclude the trial court did not abuse its discretion by

admitting into evidence the officer’s testimony concerning the results of Villalva’s field

sobriety tests and PBT.

        Affirmed.

CRONE, J., and BRADFORD, J., concur.




2
 The DataMaster printout showing Villalva’s BAC of .20 was admitted over objection at trial, but its
admission into evidence is not an issue on appeal.

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