MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
                                                                 Mar 18 2015, 9:25 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
Hilary Bowe Ricks                                        Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Jodi Kathryn Stein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Renicka Hoskins,                                         March 18, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A04-1409-CR-407
        v.                                               Appeal from the Marion Superior
                                                         Court, Criminal Division 18
                                                         The Honorable David Hooper Judge
State of Indiana.                                        Pro Tempore
Appellee-Plaintiff                                       Cause No. 49F18-1209-FD-064380




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015    Page 1 of 8
[1]   Following a bench trial, Renicka Hoskins was convicted of Operating a Vehicle

      While Intoxicated (endangerment) with a Prior Conviction, a class D felony,1

      and Operating a Vehicle While Intoxicated (alcohol concentration of .15 or

      higher) with a Prior Conviction, a class D felony.2 On appeal, Hoskins argues

      that her convictions are not supported by sufficient admissible evidence.

[2]   We affirm.

[3]   At approximately 2:45 a.m. on September 16, 2012, Trooper Kyle Mitchell of

      the Indiana State Police was driving northbound on Arlington Avenue and

      came to a stoplight at the intersection with 38th Street. Hoskins was in a red

      Honda, travelling southbound on Arlington Avenue at 38th Street, and almost

      ran “head on” into Trooper Mitchell’s fully marked police vehicle. Transcript at

      11. Hoskins slammed on her brakes causing the car’s tires to screech and then

      steered the car so as to avoid a collision before turning into a vacant lot.

      Trooper Mitchell executed his intended left turn and headed westbound on 38th




      1
        Ind. Code Ann. § 9-30-5-2(b) (West, Westlaw current with all legislation of the 2015 First Regular Session
      of the 119th General Assembly effective through February 23, 2015); I.C. § 9-30-5-3(a)(1) (West, Westlaw
      2012) (felony enhancement based on prior conviction within five years of present offense). Effective July 1,
      2014, this offense has been reclassified as a Level 6 felony. See I.C. § 9-30-5-3(a)(1) (West, Westlaw current
      with all legislation of the 2015 First Regular Session of the 119th General Assembly effective through
      February 23, 2015). Because Hoskins committed this offense prior to that date, it retains its classification as a
      class D felony.
      2
        I.C. § 9-30-5-1(b)(1)(2) (West, Westlaw 2012); ); I.C. § 9-30-5-3(a)(1) (felony enhancement based on prior
      conviction within five years of present offense). Effective July 1, 2014, this offense has been reclassified as a
      Level 6 felony. See I.C. § 9-30-5-3(a)(1) (West, Westlaw current with all legislation of the 2015 First Regular
      Session of the 119th General Assembly effective through February 23, 2015). Because Hoskins committed
      this offense prior to that date, it retains its classification as a class D felony.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015                  Page 2 of 8
      Street. Trooper Mitchell then observed in his rearview mirror that Hoskins

      quickly exited the vacant lot and continued eastbound on 38th Street. Hoskins

      made an unsafe lane movement and failed to use a turn signal. Trooper

      Mitchell turned his car around, activated his lights and siren, and initiated a

      traffic stop of the vehicle Hoskins was driving.

[4]   Trooper Mitchell approached the vehicle and Hoskins verbally identified

      herself. Trooper Mitchell noticed that Hoskins’s speech was slurred, she was

      mumbling her words, and her eyes were red and glassy. Trooper Mitchell also

      observed that when Hoskins handed him her vehicle registration, her manual

      dexterity was poor and when Hoskins tried to write her name and date of birth,

      she dropped the pen and paper. Hoskins admitted to Trooper Mitchell that she

      had been to a couple of parties and had been drinking wine that night.

[5]   Trooper Mitchell then conducted a horizontal gaze nystagmus test, which

      Hoskins failed. Because Hoskins kept falling over into lanes of traffic, Trooper

      Mitchell, in the interests of Hoskins’s safety, decided against conducting further

      field sobriety tests. Trooper Mitchell then conducted a portable breath test

      (PBT) that reported a reading of .2, at which time he read Hoskins the Indiana

      Implied Consent law and arranged for transport to obtain a certified breath test.

      Trooper Mitchell transported Hoskins to the Indiana State Police Post located

      at 21st Street and Post Road, where she voluntarily submitted to a certified

      PBT, the results of which indicated that Hoskins had .18 gram of alcohol per

      two-hundred ten liters of breath.



      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015   Page 3 of 8
[6]   Later that same day, the State charged Hoskins with Count I, operating a

      vehicle while intoxicated (endangerment), a class A misdemeanor; Count II,

      operating a vehicle while intoxicated (alcohol concentration of .15 or higher), a

      class A misdemeanor; and Count III, operating a vehicle while intoxicated

      (alcohol concentration between .08 and .14), a class C misdemeanor. The State

      also filed class D felony enhancements for Counts I and II, alleging that

      Hoskins had a previous conviction for operating a vehicle while intoxicated

      within the previous five years. The trial court held a bench trial on July 2,

      2014, at the conclusion of which the trial court found Hoskins guilty of Counts

      I and II. Hoskins then stipulated to having a prior conviction for operating a

      vehicle while intoxicated within five years preceding the instant offense. At a

      sentencing hearing on August 6, 2014, the trial court merged the misdemeanor

      guilty findings into the class D felony convictions and sentenced Hoskins on the

      class D felony convictions to concurrent terms of 545 days with 543 days

      suspended to probation. Hoskins now appeals.


[7]   Hoskins argues that her convictions are not supported by sufficient admissible

      evidence. Specifically, Hoskins contends that the traffic stop that precipitated

      her arrest was not based on reasonable suspicion and thus violated her rights

      under the Fourth Amendment and article 1, § 11 of the Indiana Constitution.

      Hoskins therefore asserts that any testimony regarding the traffic stop and the

      evidence obtained as a result thereof were inadmissible. Hoskins acknowledges

      that she did not object to the admission of testimony of the traffic stop, but

      nevertheless argues that it was the trial court’s “duty” to “sua sponte ‘suppress’


      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015   Page 4 of 8
      the testimony.” Appellant’s Brief at 6. Hoskins maintains that the admission of

      the testimony concerning the traffic stop amounted to fundamental error.

[8]   The Fourth Amendment to the United States Constitution declares, “[t]he right

      of the people to be secure in their persons, houses, papers, and effects, against

      unreasonable searches and seizures, shall not be violated.” The purpose of this

      provision is to protect people from unreasonable search and seizure, and it

      applies to the states through the Fourteenth Amendment. Krise v. State, 746

      N.E.2d 957 (Ind. 2001). A traffic stop of an automobile and temporary

      detention of its occupants constitutes a “seizure” within the meaning of the

      Fourth Amendment. Whren v. United States, 517 U.S. 806 (1996). To be valid, a

      traffic stop must be supported by, at least, reasonable suspicion a traffic law has

      been violated or other criminal activity is afoot. Meredith v. State, 906 N.E.2d

      867 (Ind. 2009); Veerkamp v. State, 7 N.E.3d 390 (Ind. Ct. App. 2014) (noting

      that where an officer observes a driver commit a traffic violation, such

      establishes probable cause—and thus the lesser included reasonable suspicion—

      required to stop the driver), trans. denied.


[9]   Here, Trooper Mitchell had at least reasonable suspicion to stop the vehicle

      Hoskins was driving and investigate the situation. To be sure, Trooper Mitchell

      testified that he observed Hoskins fail to use her turn signal to signal her turn, a

      violation of Ind. Code Ann. § 9-21-8-25 (West, Westlaw current with all

      legislation of the 2015 First Regular Session of the 119th General Assembly

      effective through February 23, 2015), and engage in unsafe lane movement, a

      violation of I.C. § 9-21-8-24 (West, Westlaw current with all legislation of the

      Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015   Page 5 of 8
       2015 First Regular Session of the 119th General Assembly effective through

       February 23, 2015). Hoskins does not challenge the validity of these traffic

       infractions.


[10]   In addition to the above traffic infractions, the totality of the circumstances

       lends further support to a finding that Trooper Mitchell had the requisite

       reasonable suspicion to stop the vehicle Hoskins was driving. Reasonable

       suspicion to justify a stop need not rise to the level of suspicion necessary for

       probable cause. State v. Belcher, 725 N.E.2d 92 (Ind. Ct. App. 2000).

       Reasonable suspicion entails at least a minimum level of objective justification.

       Id. It does, however, require more than mere hunches or unparticularized

       suspicions. Potter v. State, 912 N.E.2d 905 (Ind. Ct. App. 2009).


[11]   Trooper Mitchell’s first encounter with Hoskins was when Hoskins nearly hit

       his fully marked police car head-on as he was sitting at an intersection waiting

       to make a left turn. Hoskins hit the brakes so hard that the tires squealed

       against the pavement. Hoskins avoided hitting Trooper Mitchell and pulled the

       vehicle directly into a vacant lot. Trooper Mitchell continued with his intended

       left turn and immediately observed in his rear-view mirror that Hoskins quickly

       pulled out of the vacant lot and headed in the opposite direction, failed to use

       her turn signal, and made an unsafe lane change. Trooper Mitchell’s testimony

       that he had not intended to initiate a traffic stop immediately after Hoskins

       nearly hit him head-on does not negate the fact that Hoskin’s erratic driving at

       that point, in combination with Trooper Mitchell’s subsequent observations of

       Hoskins’s driving provided Trooper Mitchell with reasonable suspicion to

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015   Page 6 of 8
       conduct a traffic stop. Trooper Mitchell’s stop of Hoskins’s vehicle did not

       violate the Fourth Amendment or article 1, § 11. There was thus no error, let

       alone fundamental error, in the admission of evidence that flowed from the

       traffic stop, i.e., Trooper Mitchell’s testimony and the results of the certified

       breath test.

[12]   To the extent that Hoskins argues that the evidence is insufficient to support her

       convictions, we disagree. In reviewing a challenge to the sufficiency of the

       evidence, we neither reweigh the evidence nor judge the credibility of witnesses.

       Atteberry v. State, 911 N.E.2d 601 (Ind. Ct. App. 2009). Instead, we consider

       only evidence supporting the conviction and the reasonable inferences to be

       drawn therefrom. Id. If there is substantial evidence of probative value from

       which a reasonable trier of fact could have drawn the conclusion that the

       defendant was guilty of the crime charged beyond a reasonable doubt, then the

       judgment will not be disturbed. Baumgartner v. State, 891 N.E.2d 1131 (Ind. Ct.

       App. 2008).

[13]   To sustain Hoskins’s convictions, the State was required to prove that Hoskins

       operated a vehicle while intoxicated and in a manner that endangered a person

       (Count I) and that she operated a vehicle with an alcohol concentration of at

       least .15 gram of alcohol per two-hundred ten liters of breath (Count II).

       Trooper Mitchell’s testimony that Hoskins almost hit his car head-on. Hoskins

       admitted to drinking that night, her speech was slurred, she mumbled to

       Trooper Hoskins, she had red, glassy eyes, and exhibited poor dexterity.

       Hoskins also failed a HGN sobriety test. The results of a certified breath test

       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015   Page 7 of 8
       showed Hoskins had an alcohol concentration level of .18. This evidence

       supports a finding that Hoskins operated the vehicle while intoxicated and in a

       manner that endangered a person. With regard to Count II, the State submitted

       the results of the certified breath test that indicated Hoskins operated the vehicle

       with .18 gram of alcohol per two-hundred ten liters of breath. After Hoskins

       pulled into the vacant lot, she decided to continue driving and exited the lot and

       headed eastbound on 38th Street. Hoskins stipulated to the felony

       enhancement of having a prior conviction for operating a vehicle while

       intoxicated within five years preceding the instant offenses. The State’s

       evidence is sufficient to support Hoskins’s convictions.

[14]   Judgment affirmed.


       Kirsch, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1409-CR-407 | March 18, 2015   Page 8 of 8
