MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                  Apr 20 2015, 9:41 am
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
Timothy J. Burns                                          Gregory F. Zoeller
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Richard C. Webster
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Joel Hoke,                                               April 20, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1409-CR-600
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda E. Brown,
                                                         Judge
Appellee-Plaintiff
                                                         The Honorable Christina Klineman,
                                                         Commissioner

                                                         Case No. 49F10-1312-CM-80905




Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-600 | April 20, 2015     Page 1 of 6
                                            Case Summary
[1]   Joel Hoke appeals his conviction for class A misdemeanor operating while

      intoxicated with endangerment. He challenges the trial court’s admission of

      statements he made to police and claims that the evidence is insufficient

      without those statements. Finding that he was not in custody when he made

      the statements and that the statements were properly admitted, we affirm.


                              Facts and Procedural History
[2]   Just after midnight on Christmas 2013, Marion County Sheriff’s Department

      Reserve Deputy Clarence White was in his open garage when he heard a

      crashing sound. He walked around the corner and saw a vehicle in the front

      yard of a residence. The vehicle was damaged on the side and front end and

      appeared to have struck a tree and a mailbox. He saw a female exit the

      passenger side of the vehicle and heard her yell in an angry voice. The vehicle

      pulled backward and forward and eventually exited the yard and drove away.


[3]   Deputy White quickly returned to his home and prepared to follow the driver in

      his squad car. He did not take time to put on his uniform or to retrieve his

      service weapon and badge. He pursued the driver, and within a few minutes,

      he spotted the damaged vehicle parked on the side of a cul-de-sac. A small

      group of people were standing around the vehicle, and Deputy White exited his

      squad car and asked who had been driving the vehicle. Hoke immediately

      responded that he was the driver, and the deputy told him that he had left the

      scene of a property damage accident and needed to return. Deputy White

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-600 | April 20, 2015   Page 2 of 6
      instructed Hoke to re-enter his vehicle and drive to the accident site. Hoke did

      so, and the deputy followed in his squad car. When they reached the scene and

      were conversing, the deputy noticed that Hoke smelled of an alcoholic

      beverage.


[4]   Minutes later, Indianapolis Metropolitan Police Department Officer Ricardo

      Flores arrived in response to a dispatch concerning a “crash with a possible

      intoxicated person.” Id. at 37. After briefly conferring with Deputy White,

      Officer Flores asked Hoke what happened. Hoke said that he “was showing off

      driving a little too fast and lost control of the vehicle and [the] vehicle went up

      into the yard.” Tr. at 45. The officer described Hoke as smelling like an

      “alcoholic beverage emitting from his breath or person,” with eyes that were

      “glassy,” “watery,” and “red,” and “sway[ing] slightly [though not] out of

      control.” Id. Hoke admitted that he had consumed five beers. Officer Flores

      then administered three field sobriety tests, all of which Hoke failed. He read

      the implied consent information to Hoke and called a certified officer to

      conduct a chemical breath test, which showed a blood alcohol concentration

      (“BAC”) of .08%.


[5]   The State charged Hoke with class A misdemeanor operating a motor vehicle

      while intoxicated (“OWI”) with endangerment and class C misdemeanor

      operating a motor vehicle with a BAC of .08 to .14%. At trial, the parties

      stipulated to the admission of the chemical test results; however, Hoke objected

      to the introduction of his statements to Officer Flores, claiming that he was in

      custody at the time he made them and was not read his Miranda rights. The

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-600 | April 20, 2015   Page 3 of 6
      trial court admitted the statements and found him guilty as charged. The trial

      court merged the convictions and entered judgment on class A misdemeanor

      OWI with endangerment.1 Hoke now appeals.


                                    Discussion and Decision
[6]   Hoke maintains that the trial court erred in admitting his statements to Officer

      Flores. Because a trial court has broad discretion in ruling on the admissibility

      of evidence, we review its rulings using an abuse of discretion standard. Turner

      v. State, 953 N.E.2d 1039, 1045 (Ind. 2011). An abuse of discretion occurs

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

      and circumstances before it. Id.


[7]   Hoke specifically asserts that he was in custody when he made the challenged

      statements to Officer Flores and had not been Mirandized. See Miranda v.

      Arizona, 384 U.S. 436, 444 (1966) (prohibiting introduction of any statement,

      whether inculpatory or exculpatory, stemming from custodial interrogation of

      defendant without first informing defendant of his right to remain silent and

      right to an attorney and warning that statements he makes can be used as

      evidence against him). “Whether a person was in custody depends upon

      objective circumstances, not upon the subjective views of the interrogating




      1
        See Ind. Code § 9-30-5-2(b) (stating that a person who operates a vehicle while intoxicated in a manner that
      endangers a person commits OWI with endangerment, a class A misdemeanor).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-600 | April 20, 2015               Page 4 of 6
      officers or the subject being questioned.” Gauvin v. State, 878 N.E.2d 515, 521

      (Ind. Ct. App. 2007), trans. denied (2008).


              Although the circumstances of each case must certainly influence
              a determination of whether a suspect is “in custody” for purposes
              of receiving of Miranda protection, the ultimate inquiry is simply
              whether there is a “formal arrest or restraint on freedom of
              movement” of the degree associated with a formal arrest.
      California v. Beheler, 463 U.S. 1121, 1125 (1983) (quoting Oregon v.

      Mathiason, 429 U.S. 492, 495 (1977)).

[8]   Here, the objective circumstances do not support Hoke’s argument that he was

      in custody when he made the statements to Officer Flores. First, we note that

      Deputy White never placed him in custody, either by the cul-de-sac or back at

      the crash site. Instead, when the deputy first inquired about the driver of the

      damaged vehicle and Hoke admitted that he was the driver, the deputy did not

      place him in handcuffs or order him into his squad car. Instead, he merely

      stated that Hoke had left the scene of a property damage accident at the stated

      address and instructed him to return to the crash site. Hoke drove himself

      there, and the deputy followed behind.


[9]   When the two men returned to the crash site, the deputy detected a smell of

      alcohol on Hoke’s breath. Officer Flores was then dispatched to the crash site

      on a report of a “crash with a possible intoxicated person.” Tr. at 37. After he

      arrived, he spoke briefly with the deputy and then asked for Hoke’s version of

      the events. Hoke told the officer that he had driven too fast and crashed into

      the yard. The officer observed Hoke’s red, watery eyes and the smell of an

      Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-600 | April 20, 2015   Page 5 of 6
       alcoholic beverage on his breath and asked him if he had been drinking. Hoke

       said that he had consumed five beers. At that time, Officer Flores had neither

       handcuffed him nor physically restrained him in any way. Instead, the officer

       administered field sobriety tests and ordered a breathalyzer test. In short,

       Hoke’s verbal account of the crash and his alcohol consumption was not given

       as part of a custodial interrogation. Thus, the trial court did not abuse its

       discretion in admitting this evidence.


[10]   Hoke also raises a sufficiency of evidence claim. However, this claim is

       premised solely on the admissibility of his statements to Officer Flores

       concerning his identity as the driver, which were properly admitted.2 As such,

       we affirm.


[11]   Affirmed.


       Brown, J., and Pyle, J., concur.




       2
         Even if Hoke’s statements had been the product of an improper custodial interrogation, such error would
       be harmless, since his conviction is supported by independent, properly admitted evidence. Combs v. State,
       895 N.E.2d 1252, 1259 (Ind. Ct. App. 2008), trans. denied (2009). Hoke had already given a more general
       admission to Deputy White concerning his identity as the driver. He made this admission just minutes after
       the crash, when he and his companions were standing beside the damaged vehicle. To the extent that he
       claims that such an admission applied only to that exact moment, we find this argument unpersuasive, since
       no person was inside the vehicle at that exact moment and the crash had just occurred. Hoke’s actions after
       he admitted to being the driver indicate ready access to the vehicle as well as a familiarity with the crash
       location, as he had the means to start the vehicle and he drove it directly to the stated address.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1409-CR-600 | April 20, 2015              Page 6 of 6
