MEMORANDUM DECISION
                                                                    Mar 05 2015, 7:10 am
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 establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Jill M. Acklin                                           Gregory F. Zoeller
McGrath, LLC                                             Attorney General of Indiana
Carmel, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Ted Prather,                                             March 5, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         29A04-1408-CR-400
        v.                                               Appeal from the Hamilton Superior
                                                         Court
                                                         Cause No. 29D04-1307-CM-5542
State of Indiana,
Appellee-Plaintiff.                                      The Honorable J. Richard Campbell,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-400 |March 5, 2015         Page 1 of 5
                                             Case Summary
[1]   Ted Prather appeals his conviction for Class C misdemeanor operating while

      intoxicated. We affirm.


                                                     Issue
[2]   Prather raises one issue, which we restate as whether the arresting officer’s

      testimony about previous operating while intoxicated investigations and arrests

      amounted to fundamental error.


                                                     Facts
[3]   On January 26, 2013, Prather was driving on 146th Street in Hamilton County

      when Noblesville Police Officer Bradley Kline observed Prather weave inside

      his lane, increase and decrease speed, and change lanes without signaling or

      without properly signaling. Officer Kline initiated a traffic stop and noticed

      that Prather smelled of alcohol, had slurred speech, and had red glassy eyes.

      Officer Kline also observed poor lethargic manual dexterity by Prather. When

      Officer Kline asked Prather if he had been drinking, Prather said he did not

      know how to answer. Prather declined field sobriety tests and a chemical test.

      Officer Kline obtained a search warrant, and a blood draw was performed. The

      results of the test indicated that Prather’s blood alcohol content (“BAC”) was

      .12.




      Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-400 |March 5, 2015   Page 2 of 5
[4]   The State charged Prather with Class C misdemeanor operating while

      intoxicated and Class C misdemeanor operating with an alcohol concentration

      equivalent of at least .08. A bench trial was conducted at which the results of

      the blood draw were admitted into evidence, and Officer Kline testified about

      his encounter with Prather. During his testimony, the prosecutor questioned

      Officer Kline without objection as follows:

              Q.     All right. Now, to go back into your general experience, in the
              course with your time with the Noblesville Police Department, do you
              have an approximation of how many OWI Investigations that you
              have conducted?
              A.      It would be in the hundreds.
              Q.    And of those investigations, do you have an estimate of how
              many resulted in arrests?
              A.      I would, it would still be in the hundreds.
              Q.      Do you have a rough idea of the percentage of arrests versus
              investigations?
              A.      It would probably be about 90%.
      Tr. p. 23. The trial court found Prather guilty of both counts but entered

      judgment of conviction only for Class C misdemeanor operating while

      intoxicated. Prather now appeals.


                                                  Analysis
[5]   Prather contends that Officer’s Kline’s testimony about his record of

      investigations and arrests was inadmissible vouching evidence under Indiana

      Evidence Rule 704(b). Generally, the admission of evidence at trial is a matter

      left to the trial court’s discretion. Clark v. State, 994 N.E.2d 252, 259-60 (Ind.

      2013). Because there was no objection to this testimony, Prather acknowledges

      Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-400 |March 5, 2015   Page 3 of 5
      that the purported error must amount to fundamental error. The fundamental

      error doctrine is an exception to the general rule that the failure to object at trial

      constitutes procedural default precluding consideration of the issue on appeal.

      Halliburton v. State, 1 N.E.3d 670, 679 (Ind. 2013). The fundamental error

      exception is extremely narrow and applies only when the error constitutes a

      blatant violation of basic principles, the harm or potential for harm is

      substantial, and the resulting error denies the defendant fundamental due

      process. Id. “This exception is available only in egregious circumstances.” Id.


[6]   Indiana Evidence Rule 704(b) prohibits witnesses from testifying “to opinions

      concerning intent, guilt, or innocence in a criminal case; the truth or falsity of

      allegations; whether a witness has testified truthfully; or legal conclusions.”

      Prather contends that Officer Kline’s testimony was an attempt to vouch for his

      own accuracy in identifying individuals for whom there is probable cause to

      arrest.


[7]   Even if we were to assume that this was improper vouching testimony, we

      cannot agree that its admission resulted in fundamental error here. Officer

      Kline’s history of investigations and arrests has little bearing on his first-hand

      observations of Prather’s driving, which included weaving within the lane,

      increasing and decreasing speed, and improper lane changes. Moreover, lab

      tests showed that Prather’s BAC was .12. In light of the overwhelming

      evidence against Prather, the admission of Officer Kline’s testimony about

      previous investigations and arrests did not amount to fundamental error.



      Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-400 |March 5, 2015   Page 4 of 5
                                               Conclusion
[8]   Prather has not shown that the admission of Officer Kline’s testimony was

      fundamental error. We affirm.


[9]   Affirmed.


      May, J., and Pyle, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 29A04-1408-CR-400 |March 5, 2015   Page 5 of 5
