                                                                                FILED
                                                                            Apr 10 2018, 9:45 am

                                                                                CLERK
                                                                            Indiana Supreme Court
                                                                               Court of Appeals
                                                                                 and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Lloyd P. Mullen                                            Curtis T. Hill, Jr.
Mullen & Associates PC                                     Attorney General of Indiana
Crown Point, Indiana
                                                           Katherine Cooper
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Heath Poortenga,                                           April 10, 2018
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           45A03-1709-CR-2148
        v.                                                 Appeal from the Lake Superior
                                                           Court
State of Indiana,                                          The Honorable Julie Cantrell,
Appellee-Plaintiff.                                        Judge
                                                           The Honorable R. Jeffrey Boling,
                                                           Commissioner
                                                           Trial Court Cause No.
                                                           45D09-1607-CM-648




Bradford, Judge.



Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018                    Page 1 of 14
                                            Case Summary
[1]   Appellant-Defendant Heath Poortenga was charged with and found guilty of

      both Class C misdemeanor and Class A misdemeanor operating while

      intoxicated (“OWI”). Following trial, the trial court dismissed the Class C

      misdemeanor OWI conviction as a lesser-included offense of the Class A

      misdemeanor conviction. Poortenga challenges his conviction for Class A

      misdemeanor OWI on appeal. In challenging his conviction, Poortenga raises

      multiple issues, one of which we find dispositive. Specifically, we conclude that

      the trial court abused its discretion in admonishing the jury during defense

      counsel’s closing argument to ignore evidence that Poortenga’s alcohol

      concentrate equivalent (“ACE”) was under the legal limit at the time of his

      arrest. We also conclude that retrial is appropriate on the Class C misdemeanor

      charge but not the Class A misdemeanor charge. As such, we reverse and

      remand to the trial court for further proceedings consistent with this

      memorandum decision.



                             Facts and Procedural History
[2]   At approximately 3:00 a.m. on July 10, 2016, Officer Kevin Fertig of the police

      division of the Lake County Sheriff’s Department was on patrol in the area

      around 141st Street in Lake County. While on patrol, Officer Fertig passed a

      red Chevy Aveo that had a headlight out. Officer Fertig looked in his rearview

      mirror and noticed that the license plate was not illuminated. In light of these

      violations, Officer Fertig decided to initiate a traffic stop. Immediately after

      Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 2 of 14
      Officer Fertig activated his emergency lights, Poortenga applied his brakes and

      began pulling over to the side of the road. However, Poortenga did not

      immediately stop his vehicle, but rather continued for the equivalent of

      “another couple of blocks” before stopping. Trial Tr. p. 49.


[3]   When Officer Fertig approached Poortenga’s vehicle, he observed that

      Poortenga appeared to have trouble locating his driver’s license. He was

      “speaking very slow” and his “eyes were pretty glossy.” Trial Tr. p. 52. Officer

      Fertig also noticed the smell of alcohol emanating from the vehicle. Poortenga

      later admitted that throughout the course of the evening, he had “three Jack-

      and-Cokes” at the Safe House Bar in Crown Point. Trial Tr. p. 55. Poortenga

      also told Officer Fertig that “I don’t usually drink a lot so I might have a low

      tolerance.” Trial Tr. p. 56.


[4]   Poortenga complied with Officer Fertig’s request that he exit the vehicle and

      calmly participated in three different field sobriety tests—the Horizontal Gaze

      Nystagmus test, the walk and turn test, and the one-leg stand test—all of which

      he failed. Given his observations and Poortenga’s inability to successfully

      complete the field sobriety tests, Officer Fertig formed the opinion that

      Poortenga was intoxicated. After Officer Fertig read Poortenga the implied

      consent advisement, Poortenga agreed to submit to a chemical test.


[5]   Officer Fertig then handcuffed Poortenga’s hands behind his back and placed

      him in the backseat of his police vehicle. At some point on the way to the jail,

      Poortenga, who suffers from motion sickness, vomited. Once at the station,


      Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 3 of 14
      another officer administered a chemical breath test. The results of this test

      indicated that at the time of his arrest, Poortenga had an ACE of 0.069.

      Poortenga was then placed under arrest.


[6]   On July 10, 2016, Appellee-Plaintiff the State of Indiana (“the State”) charged

      Poortenga with Class C misdemeanor OWI and Class A misdemeanor OWI.

      Poortenga was also alleged to have committed the infraction of operating a

      vehicle with improper headlights.


[7]   A jury trial commenced on June 23, 2017. During both opening statement and

      closing argument, Poortenga’s counsel pointed to the fact that Poortenga tested

      below the legal limit in support of Poortenga’s claim that he was not intoxicated

      at the time he was stopped by Officer Fertig. The State objected to defense

      counsel’s statements during opening statement, after which the trial court

      admonished the jury on the nature of opening statements. The State also

      objected to defense counsel’s statements during closing argument, after which

      the trial court admonished the jury as follows: “Do not put any consideration

      into a - - a .08 that the defense keeps bringing up. That has - - That is not part

      of this case. Do not put any weight into that.” Trial Tr. p. 169. The jury

      subsequently found Poortenga guilty as charged.


[8]   On August 21, 2017, the trial court sentenced Poortenga on the Class A

      misdemeanor conviction to “365 days in the Lake County Jail, all to be

      suspended; Probation for a period of 12 months; Community Service for 40

      hours; Alcohol/Drug Abuse counseling at Court/State approved program;


      Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 4 of 14
       [and] License suspension for 90 days retroactive to date of arrest (time

       served)[.]” Appellant’s App. Vol. II, p. 25. The trial court also dismissed the

       Class C misdemeanor charge as a lesser-included offense of the Class A

       misdemeanor conviction. This appeal follows.



                                   Discussion and Decision
                                 I. Admonishment of the Jury
[9]    Poortenga contends that the trial court abused its discretion in admonishing the

       jury.1 Specifically, Poortenga argues that the trial court abused its discretion by

       instructing the jury during both the defense’s opening statement and closing

       argument that it should not consider evidence indicating that Poortenga’s ACE

       registered under the legal limit because such evidence was irrelevant to whether

       he was intoxicated at the time he operated his vehicle.


                               A. Relevance of Evidence at Issue
[10]   “Evidence is relevant when it has ‘any tendency’ to prove or disprove a

       consequential fact.” Snow v. State, 77 N.E.3d 173, 177 (Ind. 2017) (quoting

       Escamilla v. Shiel Sexton Co., Inc., 73 N.E.3d 663, 668 (Ind. 2017)). “This ‘liberal

       standard for relevancy’ sets a low bar.” Id. (quoting Escamilla, 73 N.E.3d at




       1
         The State contends that Poortenga has waived this argument for failing to provide a standard of review and
       to develop a cogent argument under Indiana Appellate Rule 46(A)(8)(a). We do not agree as we can clearly
       discern his contention from the language used, and he included citation to authority setting forth the
       applicable standard of review. We therefore reject the State’s waiver argument and reach the merits of
       Poortenga’s claim.

       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018                       Page 5 of 14
       670). “[T]he trial court enjoys ‘wide discretion’ in deciding whether that bar is

       cleared.” Id. (quoting Hicks v. State, 690 N.E.2d 215, 220 (Ind. 1997)).

       Relevant evidence is admissible unless any applicable rule or statute provides

       otherwise. See Ind. Evid. Rule 402.


[11]   “‘Prima facie evidence of intoxication’ includes evidence that at the time of an

       alleged violation the person had an [ACE of] at least eight-hundredths (0.08)

       gram of alcohol per … two hundred ten (210) liters of the person’s breath.”

       Ind. Code § 9-13-2-131. Thus, evidence relating to an individual’s ACE is

       certainly relevant to prove intoxication when the individual’s ACE is at least

       0.08. It would seem unjust to limit relevance of one’s ACE to only cases when

       the individual’s ACE is found to be 0.08 or more. Further, we have previously

       noted that once an individual has consented to a chemical test, he may not then

       object to the results of the chemical test being used against him. See Temperly v.

       State, 933 N.E.2d 558, 566 (Ind. Ct. App. 2010). It seems the reverse should

       also be true that the State may not complain if a defendant who tested below

       the legal limit attempts to introduce that fact in an effort to discredit the State’s

       claim that he was intoxicated.


[12]   For these reasons, we conclude that evidence of an individual’s ACE is relevant

       to the question of whether the individual was intoxicated, regardless of whether

       the individual’s ACE was more or less than 0.08. In reaching this conclusion,

       however, we do not intend to suggest that a finding that an individual’s ACE is

       under the legal limit of 0.08 per se proves that the individual was not



       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 6 of 14
       intoxicated. Rather, we merely conclude that such a fact is evidence that may

       be considered when determining whether an individual was intoxicated.


                     B. Admonishments Given by the Trial Court
[13]   It is undisputed that at the time of his arrest, Poortenga’s ACE was 0.069.

       Having concluded that this evidence was relevant, we turn our attention to the

       admonishments made by the trial court.


                                             1. Opening Statement

[14]   During its opening statement, the State argued that the jury could find

       Poortenga guilty, despite his ACE being under the legal limit, if it found that

       the other evidence proved beyond a reasonable doubt that he was intoxicated.

       In making this statement, the State acknowledged that the jury should find

       Poortenga not guilty if they found the fact that his ACE was under the legal

       limit to be more compelling than the other evidence suggesting intoxication.

       After the State concluded its statement, the defense presented its opening

       statement. During this statement, defense counsel stated the following: “Ladies

       and gentlemen, the evidence will show that they took him to the station and he

       blew 0.069, substantially below the legal limit where you’re presumed to be

       intoxicated in Indiana, that’s .08. We’ve all seen those….” Trial Tr. p. 37. At

       this point, the State objected and a bench conference was held out of the

       presence of the jury. At the conclusion of this bench conference, the trial court

       admonished the jury as follows:




       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 7 of 14
               All right. What you’re hearing now are opening statements.
               This is not the law. I will instruct you on what the law is later.
               Everything you hear now here is opening statements. So don’t
               form any opinions of what the law is at this point. I will instruct
               you on that later.… Okay, [defense counsel], you can proceed.


       Trial Tr. pp. 41–42. Defense counsel was then permitted to continue on with

       his statement that the State’s case was not based on scientific evidence of

       intoxication, but rather solely on the arresting officer’s opinion that Poortenga

       was intoxicated.


[15]   Upon review, we conclude that the trial court’s admonishment to the jury

       regarding the nature of opening statements was accurate. Nothing in the trial

       court’s admonishment suggested that the jury could not consider the fact that

       Poortenga’s ACE was under the legal limit when determining whether he was

       intoxicated at the time of his arrest. As such, the trial court did not abuse its

       discretion in giving this admonishment to the jury.


                                              2. Closing Argument

[16]   During closing argument, defense counsel stated “[t]he evidence is, ladies and

       gentlemen, he was not drunk. He was not over .08. He was not acting…[.]”

       Trial Tr. p. 167. At this point, the State interrupted defense counsel and

       requested permission to approach the bench. Following a bench conference

       conducted outside the presence of the jury, the trial court admonished the jury

       as follows: “Do not put any consideration into a - - a .08 that the defense keeps

       bringing up. That has - - That is not part of this case. Do not put any weight

       into that.” Trial Tr. p. 169. Defense counsel was then permitted to continue on
       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018     Page 8 of 14
       with his argument that the State’s case against Poortenga was not based on

       scientific evidence but rather the observations of “a very mad officer who got

       his car thrown up in and [who] didn’t get his first OWI arrest[.]” 2 Trial Tr. p.

       169.


[17]   A trial court will be found to have abused its discretion when its decision “is

       clearly against the logic and effect of the facts and circumstances before the

       court, or the reasonable, probable, and actual deductions to be drawn

       therefrom.” Rice v. State, 6 N.E.3d 940, 943 (Ind. 2014) (internal quotation

       omitted). By instructing the jury not to consider the evidence that Poortenga’s

       ACE was under the legal limit of 0.08, the trial court admonished the jury to

       ignore relevant evidence. Nothing in the record suggests that the probative

       value of this evidence was substantially outweighed by any prejudicial effect it

       may have on the jury, see generally, Williams v. State, 741 N.E.2d 1209, 1211

       (Ind. 2001) (providing that relevant evidence may be excluded if its probative

       value is substantially outweighed by the danger of unfair prejudice), and

       evidence that Poortenga’s ACE was 0.069 at the time of his arrest was admitted

       during trial with no objection. This evidence is relevant as to whether or not

       Poortenga was intoxicated at the time he operated his vehicle. We therefore

       conclude that the trial court’s instruction to ignore relevant evidence and

       reasonable inferences that can be derived from that evidence amounts to an




       2
        The record indicates that Officer Fertig was in training on the date in question and that his arrest of
       Poortenga was his first ever OWI arrest.

       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018                           Page 9 of 14
       abuse of discretion as it was clearly against the logic and effect of the facts and

       circumstances before the court.


[18]   Further, the Indiana Supreme Court has held that “[o]n appeal, [appellate

       courts] must presume that the jury obeyed the trial court’s instructions in

       reaching its verdict.” Webster v. State, 413 N.E.2d 898, 901, 274 Ind. 668, 673

       (1980). Thus, when the jury has been instructed not to consider specific

       evidence or argument, “we will assume that the jury followed the instructions.”

       Id., 274 Ind. at 673. Because we must assume that the jury followed the trial

       court’s instruction and ignored the relevant evidence, we conclude that the trial

       court’s abuse of discretion amounted to reversible error.


                            II. Whether Retrial is Appropriate
[19]   Having concluded that the trial court committed reversible error by

       admonishing the jury to ignore relevant evidence, we next consider whether the

       State may retry Poortenga on these charges. Because reversal in this case is due

       to trial error, “the Double Jeopardy Clause of the Fifth Amendment to the

       United States Constitution, applicable to the states through the Due Process

       Clause of the Fourteenth Amendment, generally does not bar a retrial on the

       same crimes.” Thompson v. State, 690 N.E.2d 224, 237 (Ind. 1997) (citing

       Lockhart v. Nelson, 488 U.S. 33, 38 (1988)) (footnote omitted).


               However, double jeopardy forbids a retrial … if the reviewing
               court concludes that the evidence is legally insufficient to support
               the conviction. Champlain v. State, 681 N.E.2d 696, 702 (Ind.
               1997). Evidence is sufficient if the probative evidence and

       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 10 of 14
               reasonable inferences drawn from the evidence could have
               allowed a reasonable trier of fact to find the defendant guilty
               beyond a reasonable doubt. Wooden v. State, 657 N.E.2d 109, 111
               (Ind. 1995). In this review, we do not reweigh evidence or assess
               the credibility of witnesses. Id.


       Id.


[20]   In order to support a conviction for Class A misdemeanor OWI, the State was

       required to prove that Poortenga operated a vehicle while intoxicated in a

       manner that endangered a person. Ind. Code § 9-30-5-2. Poortenga argues that

       the State failed to prove both that he was intoxicated and that he operated his

       vehicle in a manner which endangered a person.


                                               A. Intoxication
[21]   “‘Intoxicated’ means under the influence of … 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 § 9-13-2-86. “Impairment can be established by

       evidence of (1) the consumption of significant amount 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.” Fought v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008) (citing Fields

       v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008)).


[22]   It is undisputed that the State introduced evidence that (1) Poortenga had

       consumed some alcohol prior to his arrest, (2) his was “speaking very slow,” (3)

       his eyes were “pretty glossy,” (4) Officer Fertig smelled the odor of alcohol

       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 11 of 14
       emanating from his vehicle, and (5) he failed the field sobriety tests

       administered by Officer Fertig. Trial Tr. p. 52. This evidence may be legally

       sufficient to sustain a finding of intoxication. As such, the State may retry the

       Class C misdemeanor OWI charge without violating the Double Jeopardy

       Clause of the Fifth Amendment.


                                             B. Endangerment
[23]   The State is required to present evidence beyond mere intoxication in order to

       prove the element of endangerment and support a conviction of OWI as a Class

       A misdemeanor. Temperly, 933 N.E.2d at 567. In Temperly, we concluded that

       although the State presented sufficient evidence to prove that the defendant was

       intoxicated, no evidence other than his intoxication was presented to suggest

       that he operated his vehicle in a manner that endangered himself or any other

       person. 933 N.E.2d at 568. As such, we reversed the defendant’s conviction

       for Class A misdemeanor OWI because “insufficient evidence was presented

       that [the defendant] operated his vehicle while intoxicated in a manner that

       endangered a person.” Id.


[24]   In this case, Officer Fertig initiated a traffic stop after noticing that Poortenga

       had a headlight out and that his license plate was not illuminated in accordance

       with state law. Officer Fertig acknowledged that he did not observe Poortenga

       commit any moving violations prior to initiating the stop. Poortenga was not

       swerving or driving too fast and he did not come close to “hitting any object,

       thing, or person.” Trial Tr. p. 97. Officer Fertig’s testimony established that

       Poortenga applied his brakes immediately after he initiated his emergency lights
       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 12 of 14
       and began pulling over to the side of the road. However, Poortenga did not

       immediately stop his vehicle, but rather continued for the equivalent of

       “another couple of blocks” before stopping. Trial Tr. p. 49.


[25]   The only additional evidence beyond the evidence of intoxication relied on by

       the State to prove endangerment is the evidence indicating that Poortenga did

       not immediately stop his vehicle after Officer Fertig activated his emergency

       lights. The State, however, does not point to any authority suggesting that a

       failure to stop immediately after an officer activates his emergency lights is

       sufficient, without more, to prove endangerment. In fact, applicable authority

       provides otherwise. See Outlaw v. State, 918 N.E.2d 379, 382 n.2 (Ind. Ct. App.

       2009), adopted and incorporated by reference by 929 N.E.2d 196 (Ind. 2010)

       (providing that the defendant’s slow response to the officer’s activation of his

       emergency lights was “not equivalent to dangerous driving” and therefore was

       not sufficient evidence of endangerment). As such, we conclude that the

       evidence presented by the State is legally insufficient to sustain a finding of

       endangerment. We also conclude, therefore, that the State may not retry the

       Class A misdemeanor endangerment charge. See Thompson, 690 N.E.2d at 237

       (citing Champlain, 681 N.E.2d at 702).



                                                 Conclusion
[26]   We conclude that the trial court abused its discretion and committed reversible

       error by admonishing the jury to ignore the relevant evidence that Poortenga’s

       ACE was under the legal limit of 0.08. We also conclude that the evidence is

       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 13 of 14
       such that the jury could find that Poortenga was intoxicated at the time of his

       arrest but not that he endangered a person. As such, if it so wishes, the State

       may elect to retry Poortenga on the Class C misdemeanor OWI charge but not

       the Class A misdemeanor OWI charge.


[27]   The judgment of the trial court is reversed and remanded with instructions.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 45A03-1709-CR-2148 | April 10, 2018   Page 14 of 14
