MEMORANDUM DECISION
                                                                            FILED
Pursuant to Ind. Appellate Rule 65(D),                                May 06 2016, 10:03 am
this Memorandum Decision shall not be                                       CLERK
regarded as precedent or cited before any                               Indiana Supreme Court
                                                                           Court of Appeals
court except for the purpose of establishing                                 and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
John L. Tompkins                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Eric P. Babbs
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dennis Talboom,                                         May 6, 2016
Appellant-Defendant,                                    Court of Appeals Cause No.
                                                        71A03-1510-CR-1544
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Paul E. Singleton,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        71D01-1211-CM-6212



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016              Page 1 of 13
                                             Case Summary
[1]   Dennis Talboom appeals his conviction for Class A misdemeanor operating a

      vehicle while intoxicated. We affirm.


                                                     Issue
[2]   The restated issue is whether Talboom’s trial counsel was ineffective for:


          I.      filing a deficient motion to dismiss; and/or

          II.     for failing to object to the admissibility of certain evidence.

                                                     Facts
[3]   On November 9, 2012, at approximately 8:00 p.m., Saint Joseph County Police

      Officer Jason Koski responded to a report of a pickup truck stuck in a ditch.

      Officer Koski observed the truck, whose front end was in a ditch, and

      discovered Talboom in the driver’s seat. Talboom was the only person in the

      truck. While speaking with Talboom, Officer Koski noticed the odor of alcohol

      on his breath and observed that he had bloodshot and glassy eyes. Talboom

      testified he had consumed “about three or four” twelve-ounce cans of beer

      between approximately 4:30 p.m. and 8:00 or 8:30 p.m. Tr. p. 26.


[4]   At Officer Koski’s request, Talboom got out of the truck and performed several

      field sobriety tests. Talboom failed those tests. He then consented to a portable

      breath test, and Officer Koski transported him to the St. Joseph County Jail so

      he could administer a breath test on a DataMaster. Officer Koski is a certified

      breath test operator, and the result of that breath test indicated Talboom’s blood

      alcohol content was 0.22.
      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 2 of 13
[5]   On December 4, 2012, the State charged Talboom with (1) operating a motor

      vehicle while intoxicated and (2) operating a motor vehicle with a blood alcohol

      concentration of .15 or more, both Class A misdemeanors. At some point, it

      seems Talboom filed a motion for discovery,1 to which the State responded on

      December 6, 2013. The State responded that it had “complie[d] therewith by

      providing additional discovery . . . marked as CD-R labeled as 201200031960.”

      App. p. 21. More than a year later, on March 18, 2015, the trial court ordered

      the State to “to provide MVR tape.” App. p. 3. On July 9, 2015, Talboom filed

      a motion to dismiss.2


[6]   On July 30, 2015, Talboom was tried in a bench trial. Talboom testified that

      Officer Holcomb, who did not testify, and not Officer Koski, administered the

      breath test at the St. Joseph County Jail. He further testified that, prior to

      administering the test, Officer Holcomb:


[7]              disassemble[d] the BAC machine. He took the complete lid and
                 box off the machine. He stuck his fingers underneath the back of
                 this machine and was moving things in the machine, and then he
                 attempted to put the lid back on and had a lot of trouble with
                 that, and the whole process took 15 to 20 minutes.




      1
          The motion is not included in the Appendix and it was not entered in the Chronological Case Summary.
      2
       We note that the copy of the motion to dismiss included in the Appendix is not file stamped. It appears that
      motion also was not entered in the Chronological Case Summary. However, both parties refer to that
      motion and do not dispute that it was filed. The parties agree it was filed on July 9, 2015. See Appellant’s Br.
      pp. 2, 3; see also Appellee’s Br. p. 11.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016                 Page 3 of 13
      Tr. pp. 31-32. The trial court found Talboom guilty of both charges. On

      September 1, 2015, the trial court vacated Talboom’s conviction for Count II

      and sentenced him to seventeen days of incarceration with fifteen days

      suspended. It also suspended his driver’s license for ninety days. Talboom now

      appeals his conviction.


                                                      Analysis3
[8]   Talboom contends his trial counsel was ineffective for two reasons: (1) trial

      counsel filed a motion to dismiss that was untimely and incomplete, and the

      shortcomings of that motion deprived him of exculpatory evidence; and (2) trial

      counsel failed to object to the DataMaster evidence regarding his blood alcohol

      content on the grounds that the State did not lay the proper foundation for

      admitting that evidence.


[9]   We first note that Talboom raises his ineffective assistance of trial counsel claim

      on direct appeal.4 “Post-conviction proceedings are usually the preferred forum

      for adjudicating claims of ineffective assistance because presenting such claims

      often requires the development of new facts not present in the trial record.”

      Peak v. State, 26 N.E.3d 1010, 1014 (Ind. Ct. App. 2015). “When a defendant




      3
        We note that Talboom’s Appendix includes the transcript in this matter. See App. pp. 58-112. We remind
      counsel that, pursuant to Indiana Rule of Appellate Procedure 49(F), “Because the Transcript is transmitted
      to the Court on Appeal pursuant to Rule 12(B), parties should not reproduce any portion of the Transcript in
      the Appendix.”
      4
        Talboom did not invoke the Davis/Hatton procedure in this appeal. In that procedure, an appellant
      terminates or suspends his or her direct appeal in order to pursue a petition for post-conviction relief in the
      trial court. White v. State, 25 N.E.3d 107, 121 (Ind. Ct. App. 2014), trans. denied, cert. denied.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016                   Page 4 of 13
       presents a claim of ineffective assistance of trial counsel on direct appeal, the

       issue is foreclosed from collateral review.” Id.


[10]   In order to prevail on an ineffective assistance of counsel claim, one must

       satisfy the two-pronged test established in Strickland v. Washington, 466 U.S.

       668, 104 S. Ct. 2052 (1984), by establishing: (1) counsel’s performance fell

       below an objective standard of reasonableness based on prevailing professional

       norms, and (2) there is a reasonable probability that, but for counsel’s errors, the

       result of the proceeding would have been different. See Jervis v. State, 28 N.E.3d

       361, 365 (Ind. Ct. App. 2015), trans. denied. “The two prongs of the Strickland

       test are separate and independent inquiries. Thus, “‘[i]f it is easier to dispose of

       an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that

       course should be followed.’” Williams v. State, 706 N.E.2d 149, 154 (Ind. 1999)

       (quoting Strickland, 466 U.S. at 697, 104 S. Ct. at 2052) (alterations in original),

       cert. denied.


[11]   “Most ineffective assistance of counsel claims can be resolved by a prejudice

       inquiry alone.” Perryman v. State, 13 N.E.3d 923, 931 (Ind. Ct. App. 2014)

       (citing French v. State, 778 N.E.2d 816, 824 (Ind. 2002)), trans. denied. A

       defendant establishes prejudice if he or she shows there is a reasonable

       probability that, but for counsel’s unprofessional errors, the result of the

       proceeding would have been different. Pruitt v. State, 903 N.E.2d 899, 906 (Ind.

       2009). “A reasonable probability is one that is sufficient to undermine

       confidence in the outcome.” Kubsch v. State, 934 N.E.2d 1138, 1147 (Ind. 2010)

       (citing Strickland, 466 U.S. at 694, 104 S. Ct. at 2052). There is a “strong

       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 5 of 13
       presumption” that counsel’s assistance was adequate and he or she “made all

       significant decisions in the exercise of reasonable professional judgment.”

       Pruitt, 903 N.E.2d at 922. “‘[I]solated poor strategy, inexperience, or bad

       tactics do not necessarily amount to ineffectiveness of counsel.’” Clark v. State,

       668 N.E.2d 1206, 1211 (Ind. 1996) (citation omitted), cert. denied.


[12]   Talboom contends we should undertake separate analyses of his claims under

       the United States and Indiana Constitutions. He argues Article 1, Section 13 of

       the Indiana Constitution “has a long history of affording criminal defendants

       broader protections [than the United States Constitution]” and urges us to

       “return to the broader protections of the right to effective counsel citizens of this

       State enjoyed before Strickland, and find that Talboom received ineffective

       assistance of counsel under a separate, broader Indiana Art. 1, §13, standard.”

       Appellant’s Br. p. 12. Specifically, Talboom asks us to employ a one-part test

       for ineffective assistance of counsel and apply only the first prong of the

       Strickland test: whether counsel’s performance was deficient. If he is able to

       establish that prong, Talboom urges us to “conclude that prejudice resulted

       automatically and relief is warranted.” Appellant’s Br. p. 14.


[13]   In Strickland, the Supreme Court “first outlined the general guiding premise for

       appellate review of effectiveness of counsel.” Elliott v. State, 465 N.E.2d 707,

       710 (Ind. 1984). In Elliott v. State, which appears to be our supreme court’s first

       application of Strickland, the court discussed our standards of review of

       ineffective assistance of counsel claims in light of Strickland. Radford v. State,

       468 N.E.2d 219, 224 (Ind. 1984). Elliott “reaffirmed our past decisions under

       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 6 of 13
       the old standards and adopted the Strickland guidelines for future cases.”

       Radford, 468 N.E.2d at 224; see also King v. State, 467 N.E.2d 726, 729 (Ind.

       1984). Since Strickland, Indiana courts have required defendants to fulfill both

       prongs of the test in order to establish ineffective assistance of counsel. “[W]e

       are bound to follow the precedent of our supreme court.” Minor v. State, 36

       N.E.3d 1065, 1073 (Ind. Ct. App. 2015) (quotation omitted) (citation omitted),

       trans. denied. We, therefore, decline Talboom’s invitation to deviate from the

       Strickland analysis.


                                               I.       Motion to Dismiss

[14]   Talboom first argues his trial counsel was ineffective because the motion to

       dismiss he filed on Talboom’s behalf did not comply with Indiana Code Section

       35-34-1-45 or Indiana Rule of Criminal Procedure 3, which provides that a



             5
              (a) The court may, upon motion of the defendant, dismiss the indictment or information upon
             any of the following grounds:
             (1) The indictment or information, or any count thereof, is defective under section 6 of this
             chapter.
             (2) Misjoinder of offenses or parties defendant, or duplicity of allegation in counts.
             (3) The grand jury proceeding was defective.
             (4) The indictment or information does not state the offense with sufficient certainty.
             (5) The facts stated do not constitute an offense.
             (6) The defendant has immunity with respect to the offense charged.
             (7) The prosecution is barred by reason of a previous prosecution.
             (8) The prosecution is untimely brought.
             (9) The defendant has been denied the right to a speedy trial.
             (10) There exists some jurisdictional impediment to conviction of the defendant for the offense
             charged.
             (11) Any other ground that is a basis for dismissal as a matter of law.
             (b) Except as otherwise provided, a motion under this section shall be made no later than:

       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016                 Page 7 of 13
defendant who files a motion to dismiss shall file a memorandum specifying the

grounds for dismissal. The entirety of Talboom’s motion to dismiss “moves

this Honorable Court to dismiss the above cause based on the loss [sic] or

destroyed evidence on the ground that the loss [sic] or destroyed evidence was

exculpatory and deprived the Defendant of due process of law contrary to the

provisions of the Fourteenth Amendment of the United States Constitution.”

App. p. 28. On appeal, Talboom alleges:


        Talboom’s trial counsel filed a Motion to Dismiss on July 9,
        2015, alleging the loss or destruction of exculpatory evidence.
        This motion was filed almost two and one-half (2 ½) years after
        Talboom was charged, after five (5) previous trial settings had
        come and gone, more than one hundred (100) days after the State
        had been ordered “to provide MVR tape,” and twenty-one (21)
        days before Talboom’s trial. The Motion to Dismiss did not
        specify what evidence had been lost or destroyed, the Motion did
        not allege who lost or destroyed the evidence, the Motion did not
        explain how the evidence was exculpatory, or which Count or




      (1) twenty (20) days if the defendant is charged with a felony; or
      (2) ten (10) days if the defendant is charged only with one (1) or more misdemeanors;
      prior to the omnibus date. A motion made thereafter may be summarily denied if based upon a
      ground specified in subdivision (a)(1), (a)(2), (a)(3), (a)(4), or (a)(5) of this section. A motion to
      dismiss based upon a ground specified in subdivision (a)(6), (a)(7), (a)(8), (a)(9), (a)(10), or
      (a)(11) of this section may be made or renewed at any time before or during trial. A motion to
      dismiss based upon lack of jurisdiction over the subject matter may be made at any time.
      (c) Upon the motion to dismiss, a defendant who is in a position adequately to raise more than
      one (1) ground in support thereof shall raise every ground upon which he intends to challenge
      the indictment or information. A subsequent motion based upon a ground not properly raised
      may be summarily denied. However, the court, in the interest of justice and for good cause
      shown, may entertain and dispose of such a motion on the merits.



Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016                     Page 8 of 13
               Counts it exculpated Talboom on. Further, Talboom’s Motion
               was unsupported by the mandatory memorandum.


       Appellant’s Br. p. 8 (citations omitted). In addition, Talboom argues that his

       trial counsel’s faulty motion to dismiss “deprived him of video evidence that

       would have corroborated his exculpatory testimony about the facts of what

       happened at the St. Joseph County Jail on the night of his BAC DataMaster test

       and arrest. In addition, the video would have been an effective means of

       impeaching Koski’s credibility.” Id. at 4.


[15]   We again note that Talboom raises his claims of ineffective assistance of

       counsel on direct appeal and did not pursue either a petition for post-conviction

       relief or a Davis/Hatton petition prior to raising these issues. As such, our

       review is limited to the trial record. The record is murky, at best, with regard to

       the evidence Talboom contends is exculpatory, missing, and the subject of the

       motion to dismiss. Talboom seems to acknowledge the record’s deficiencies, as

       quoted above. He further states it is unclear whether the “MVR tape” the trial

       court ordered the State to produce on March 18, 2015 is the same as “CD-R

       labeled as 201200031960” the State confirmed on December 6, 2013 that it had

       previously provided to Talboom. App. pp. 3, 21; see Appellant’s Br. p. 8.


[16]   Nonetheless, Talboom argues on appeal that he was prejudiced by his trial

       counsel’s “non-specific Motion to Dismiss” in two ways:

[17]           First, Talboom never had the opportunity to establish a record in
               the Trial Court, this right is guaranteed by IC 35-34-1-4(d)’s
               mandate for a ruling upon the filing of any motion to dismiss.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 9 of 13
               Second, the absence of a Trial Court record on his Motion to
               Dismiss deprives Talboom of the ability to present specific issues
               for this Court to review, a clear infringement of his right to a
               direct appeal as opposed to some other post-conviction
               proceeding.


       Appellant’s Br. p. 9.


[18]   Our review of the record reveals the same deficiencies in the trial record as

       those to which Talboom points in the motion to dismiss. Nothing in the record

       affirmatively identifies the evidence Talboom’s motion to dismiss claimed was

       lost or destroyed. The evidence to which the motion to dismiss refers might

       have been the MVR tape the trial court referenced in its March 18, 2015 order;

       but it might not. As Talboom notes in his Appellant’s Brief, the missing

       evidence might or might not have been the “CD-R labeled as 201200031960” to

       which the State referred in its December 6, 2013 response to Talboom’s request

       for discovery. See Appellant’s Br. p. 8. Assuming, arguendo, evidence was lost

       or destroyed, the record does not substantiate Talboom’s assertion that it would

       have corroborated Talbooms’s testimony that Officer Holcomb, not Officer

       Koski, administered the breath test and that he did so only after disassembling

       and reassembling the DataMaster. Without more, we must conclude Talboom

       has not shown there is a reasonable probability that, but for counsel’s alleged

       unprofessional errors, the result of the proceeding would have been different.

       See Pruitt, 903 N.E.2d at 906. Thus, Talboom has not established he suffered

       prejudice as a result of trial counsel’s alleged errors.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 10 of 13
                                     II.     Failure to Object to Evidence

[19]   Talboom next contends his trial counsel was ineffective because he did not

       object to what Talboom argues was the State’s failure to lay a foundation for

       the results of the DataMaster breath test and because he did not move to strike

       that evidence or request a judgment on the evidence. Specifically, he contends

       the State did not establish that the DataMaster test was administered within

       three hours of when Talboom last operated his vehicle. He further contends

       trial counsel “compounded his errors on this issue by calling Talboom as the

       only Defense witness and during the direct examination of his client

       establishing the first prong of the foundation required to admit Talboom’s BAC

       result.” Appellant’s Br. p. 11. The resulting prejudice, he argues, “is that first

       Talboom was convicted on the per se count based entirely on inadmissible

       evidence. Second, since the State relied in part on the BAC result as proof of

       the intoxication count, Talboom also suffered prejudice on both convictions.”

       Id.


[20]   We first note that, contrary to Talboom’s assertion he was convicted for a “per

       se count,” (operating a motor vehicle with a blood alcohol concentration of .15

       or more), the trial court did not enter a judgment of conviction on Count II. See

       App. p. 4. Thus, we do not address Talboom’s argument related to that charge

       and limit our discussion to his assertion that he was prejudiced because his

       conviction for operating a motor vehicle while intoxicated was based, in part,

       on what he contends was inadmissible evidence.



       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 11 of 13
[21]   Indiana Code Section 9-30-5-2 provides that a person commits Class A

       misdemeanor operating a vehicle while intoxicated if he or she does so in a

       manner that endangers a person. Intoxication is defined as being under the

       influence of, among other substances, alcohol, “so that there is an impaired

       condition of thought and action and the loss of normal control of a person’s

       faculties.” Ind. Code Sec. 9-13-2-86. The State may prove impairment by

       evidence of “(1) the consumption of significant amounts of alcohol; (2)

       impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of

       alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; (7)

       slurred speech.” Staley v. State, 895 N.E.2d 1245, 1251 (Ind. Ct. App. 2008),

       trans. denied. Finally, “the endangerment clause does not require that the State

       prove a person other than the defendant was actually in the path of the

       defendant’s vehicle . . . in order to obtain a conviction.” Id.


[22]   Here, Talboom himself admitted he consumed alcohol. Officer Koski testified

       Talboom exhibited glassy, bloodshot eyes and smelled of alcohol. Talboom

       also failed three field sobriety tests. Finally, it is undisputed that Talboom was

       involved in a traffic accident shortly after he consumed the alcohol. We

       conclude that this evidence was overwhelmingly sufficient to support

       Talboom’s conviction for Class A misdemeanor operating a vehicle while

       intoxicated. Even if the DataMaster evidence should not have been admitted,

       we conclude Talboom has not undermined our confidence in the outcome of

       his trial. He has, therefore, not established he suffered prejudice as a result of

       counsel’s alleged unprofessional errors. See Pruitt, 903 N.E.2d at 906.


       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 12 of 13
                                                 Conclusion
[23]   Talboom has not demonstrated his trial counsel’s alleged errors resulted in

       prejudice. He has, therefore, failed to establish that he received ineffective

       assistance of trial counsel. We affirm.


[24]   Affirmed.


       Robb, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1510-CR-1544 | May 6, 2016   Page 13 of 13
