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,                         FILED
                                                               Jan 03 2012, 9:11 am
collateral estoppel, or the law of the
case.
                                                                       CLERK
                                                                     of the supreme court,
                                                                     court of appeals and
                                                                            tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

DAVID L. JOLEY                                   GREGORY F. ZOELLER
Fort Wayne, Indiana                              Attorney General of Indiana

                                                 ELLEN H. MEILAENDER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

DANIEL MINNICK,                                  )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 92A03-1106-CR-228
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE WHITLEY SUPERIOR COURT
                         The Honorable Douglas M. Fahl, Judge
                            Cause No. 92D01-0806-CM-350


                                      January 3, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION
DARDEN, Judge


                                  STATEMENT OF THE CASE

          Daniel Minnick appeals his convictions of operating a vehicle while intoxicated, a

class A misdemeanor;1 operating a motor vehicle with a blood alcohol concentration

(“BAC”) equivalent to at least .08 gram of alcohol, a class C misdemeanor; 2 and

speeding, a class C infraction.3

          We affirm.

                                              ISSUES

          I.       Whether the trial court violated Minnick’s federal and state rights to
                   confrontation when it admitted into evidence breath test instrument
                   inspection certificates without live testimony from the technician
                   who inspected the instrument.

          II.      Whether the State presented sufficient evidence to support
                   Minnick’s convictions of operating a vehicle while intoxicated and
                   speeding.

                                              FACTS

          Around 2:00 a.m. on June 15, 2008, Indiana State Trooper Jason Ward saw two

motorcycles traveling in the left lane on a State highway going “pretty well in [excess] of

the posted speed limit.” (Tr. 31-32). Trooper Ward activated his radar and clocked the

motorcycle driven by Minnick at eighty-four miles per hour. Trooper Ward stopped

Minnick and immediately noticed the odor of alcohol on Minnick’s breath.                    While


1
    Ind. Code § 9-30-5-2(b).
2
    I.C. § 9-30-5-1(a)(2).
3
    I.C. § 9-21-5-2(7).
                                                 2
Trooper Ward was talking to Minnick, he also noticed that Minnick was slurring some of

his letters and spoke with a “thick tongue.” (Tr. 35). Minnick was able to count

backwards and recite the alphabet.

      Trooper Ward, a certified chemical test operator, read the implied consent law to

Minnick and subsequently conducted a chemical breath test on Minnick. The Indiana

Department of Toxicology had issued a certificate of inspection on April 28, 2008,

certifying that the BAC DataMaster used to conduct the test was operating correctly.

Trooper Ward observed no anomalies during the test and received no indication that the

DataMaster was malfunctioning. He followed the prescribed checklist for conducting the

test, and the DataMaster purged itself after the test and returned to a zero reading. The

test revealed that Minnick had a BAC of .09. Minnick admitted that he had been drinking

rum and that he had started drinking around 9:00 p.m. and had not stopped drinking until

around 2:00 a.m.

             The State charged Minnick with class A misdemeanor operating a motor

vehicle while intoxicated; class C misdemeanor operating a motor vehicle with a BAC of

.08 or more; and class C infraction speeding. On June 24, 2008, a service call was made

for the DataMaster because the instrument would not “return to zero.” (Tr. 65, 67). The

Department of Toxicology then certified that the instrument was inspected, repaired, and

operating correctly. At trial, the State offered Minnick’s breath test results as well as

official certificates of compliance verifying the routine inspection of Officer Ward’s

DataMaster. The two DataMaster inspection certificates certified that on April 28, 2008

and June 24, 2008 inspections and tests had been conducted on the DataMaster and that

                                           3
the machine was in good operating condition that satisfied the accuracy requirements of

the State Department of Toxicology. Minnick objected to admission of the DataMaster

inspection certificates on federal and state constitutional grounds.      The trial court

overruled the objections and admitted the certificates. The jury found Minnick guilty of

all three charges. Minnick received a fine and an aggregate one-year sentence, suspended

but for eight days.

                                       DECISION

1.     Right of Confrontation

       Minnick contends that the DataMaster inspection certificates were admitted in

violation of his Sixth Amendment right to confrontation. He also contends that the

certificates were admitted in violation of his confrontation right expressed in Article 1,

Section 13 of the Indiana Constitution. Minnick notes that the inspector did not testify

and that the certificates constitute prima facie evidence that the equipment (1) was

inspected and approved by the Department of Toxocology and (2) was in proper working

condition on the date the breath test was administered if the date of the approval was not

more than 180 days before the date of the test. See Ind. Code § 9-30-6-5(c).

       A.     Sixth Amendment

       The Sixth Amendment to the United States Constitution provides that “[i]n all

criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the

witnesses against him.” The right to confrontation guaranteed by the Sixth Amendment

is made applicable to the states by the Due Process Clause of the Fourteenth Amendment.

Pointer v. Texas, 380 U.S. 400, 406 (1965).

                                              4
       In Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010) we addressed the issue

of whether the admission of DataMaster inspection certificates violate the Sixth

Amendment. We noted that in Crawford v. Washington, 541 U.S. 36, 68 (2004), the

United States Supreme Court held that the Confrontation Clause “bars admission of out-

of-court, testimonial statements in criminal trials unless the declarant is unavailable to

testify and the defendant had a prior opportunity for cross-examination.” Id. at 217. We

also noted that a “critical aspect of the Crawford holding is its application only to

‘testimonial’ statements.” Id. We emphasized that it is “the testimonial character of the

statement that separates it from other hearsay that, while subject to traditional limitations

upon hearsay evidence, is not subject to the Confrontation Clause.” Id. (quoting Davis v.

Washington, 547 U.S. 813, 821 (2006)).

       We then stated that following Crawford, this court on several occasions addressed

“whether breath test inspection certificates are testimonial documents implicating the

Sixth Amendment right to confrontation, and we routinely concluded that the certificates

are nontestimonial.” Id. (case citations omitted). We stated the varied reasoning behind

the conclusion, including the reason that “the certificates are not prepared in anticipation

of litigation in any particular case or with respect to implicating any specific defendant.”

Id. at 217-18. We noted that our holdings have been substantially in accord with the

decisions of other jurisdictions. Id. at 218 (case citations omitted).

       We observed that the Supreme Court revisited Crawford in Melendez-Diaz v.

Massachusetts, 129 S.Ct. 2527, 2532 (2009), wherein it elaborated on the meaning of

“testimonial” within the realm of forensic chemical testing.         Id.   We noted that in

                                              5
Melendez-Diaz, the Court concluded that three “certificates of analysis” indicating that a

seized substance was cocaine of a certain weight were testimonial in nature and triggered

the defendant’s Sixth Amendment protections. Id. (citing Melendez-Diaz, 129 S.Ct. at

2532)). We further noted that the Court held that the certificates “were in fact prepared

for the sole purpose of providing evidence in a subsequent prosecution.” Id.

       In Ramirez, we observed that the dissent in Melendez-Diaz expressed concern over

the decision’s implications for equipment calibration records. Id. at 218-19. In response

to this concern, the majority in Melendez-Diaz responded:

       Contrary to the dissent’s suggestion, we do not hold, and it is not the case,
       that anyone whose testimony may be relevant in establishing the chain of
       custody, authenticity of the sample, or accuracy of the testing device, must
       appear in person as part of the prosecution’s case . . . . Additionally,
       documents prepared in the regular course of equipment maintenance may
       well qualify as nontestimonial records.

129 S.Ct. at 2532 n. 1 (internal citations omitted).

       In light of Crawford and Melendez-Diaz, we held in Ramirez that DataMaster

inspection certificates are not “ex parte in-court testimony or its functional equivalent”

and that they are not formalized testimonial materials. 928 N.E.2d at 219. “Moreover,

while the certificates contemplate use in criminal trials, they are completed in advance of

any specific alleged drunk-driving incident and breath test administration and are not

created for the prosecution of any particular defendant.” Id. Accordingly, we reaffirmed

previous cases holding that certificates verifying routine inspection of breath test

instruments are nontestimonial. Id.




                                              6
       Minnick argues that the reasoning set forth in Ramirez and related cases was

supplanted by the United States Supreme Court in Bullcoming v. New Mexico, 131 S.Ct.

2705 (2011). In Bullcoming, the defendant was arrested for and charged with driving

while intoxicated (“DWI”). The principal evidence against him was a forensic laboratory

report certifying that his blood-alcohol concentration was above the threshold for

aggravated DWI. The trial court admitted the report over objection based on the Sixth

Amendment, even though the forensic analyst who completed, signed, and certified the

report, did not testify.

       The United States Supreme Court held that the trial court erred in admitting the

report. The Court held that the laboratory test report of the chemical blood analysis was

created solely for an “evidentiary purpose” and was “made in aid of a police

investigation.” Id. at 2717. Therefore, the report “rank[ed] as testimonial.” Id.

       The actual issue before the Court was whether the defendant’s confrontation right

was satisfied by live testimony from a surrogate analyst who was generally familiar with

the laboratory’s procedures but was not the person who tested the blood, not whether the

definition of “testimonial” needed to be reconsidered. Id. at 2710, 2713. Therefore, the

case did nothing to alter the definition of “testimonial” evidence as set forth in Crawford

and Melendez-Diaz. Rather, the Court held that Melendez-Diaz forecloses any argument

that the laboratory test report was nontestimonial. Id. at 2716-17. Because the decision

in Bullcoming does not alter the definition of “testimonial,” it does not change our

analysis of whether DataMaster inspection certificates fit within that definition. Indeed,

in Justice Sotomayer’s concurrence, she repeated the language from Melendez-Diaz that

                                             7
not every person whose testimony may be relevant to establishing the “accuracy of the

testing device” must appear in person. Id. at 2721 n. 2.

       To be sure, neither Melendez-Diaz nor Bullcoming specifically state that routine

calibration records are always nontestimonial.         See Ramirez, 928 N.E.2d at 219.

However, we echo the Ramirez court in holding that “at a minimum [the Supreme Court]

leaves the question unresolved and demands the same type of scrutiny that we have

undertaken since Crawford.” See id. In short, under Ramirez and similar cases, the trial

court did not violate the Sixth Amendment when it admitted the DataMaster inspection

certificates into evidence.

       B.        Article 1, Section 13

   Article 1, Section 13 of the Indiana Constitution provides that in all criminal

prosecutions, the defendant “shall have the right . . . to meet the witnesses face to face.”

Article 1, Section 13 differs from the federal Confrontation Clause by emphasizing a

face-to-face meeting. This is a protection directed to how confrontation must occur (in

person);    it    is   not    directed   to   who   should   be   confronted    under   the

testimonial/nontestimonial distinction.

       In Turner v. State, 953 N.E.2d 1039, 1055 (Ind. 2011) (citing Michigan v. Bryant,

131 S.Ct. 1143 (2011)), our supreme court held that the admissibility of a nontestimonial

statement is the concern of state and federal rules of evidence, not the Confrontation

Clause. The court noted that the federal and Indiana rights to confrontation are “to a

considerable degree” co-extensive and that it is the defendant’s duty to explain “why an



                                               8
analysis of the Indiana constitution concerning the testimonial character of a statement is

or should be any different than the federal analysis.” Id. n. 8.

       In the present case, Minnick relies on the same arguments to substantiate his

Article 1, Section 13 claim, albeit with an emphasis on the “face to face” language

therein, as he did in substantiating his federal confrontation claim. Minnick makes no

significant distinction between testimonial and nontestimonial evidence. He does not

show why the testimonial/nontestimonial analysis should be any different under Article 1,

Section 13 than it is under the federal confrontation provision. Accordingly, he does not

establish a violation of our constitution.

2.     Sufficiency of the Evidence

       Minnick contends that the State failed to present sufficient evidence to support his

operating a motor vehicle while intoxicated and speeding convictions. Our standard of

review for sufficiency claims is well settled. In reviewing sufficiency of the evidence

claims, this court does not reweigh the evidence or assess the credibility of witnesses.

Davis v. State, 791 N.E.2d 266, 269 (Ind. Ct. App. 2003), trans. denied. We consider

only the evidence most favorable to the judgment, together with all reasonable and

logical inferences drawn therefrom. Id. at 269-70. The conviction will be affirmed if

there is substantial evidence of probative value to support the conclusion of the trier of

fact. Id. at 270.

       A.     Operating a Vehicle While Intoxicated

       In order to convict Minnick of class A misdemeanor operating a motor vehicle

while intoxicated, the State had to prove that Minnick (1) operated a vehicle; (2) while

                                              9
intoxicated; and (3) in a manner that endangered a person. See I.C. § 9-30-5-2(b).

Minnick contends that the State failed to show either that he was intoxicated or that he

endangered a person.

       “Intoxicated” is defined as being 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.” I.C. § 9-13-2-86. Among other factors, intoxication may be established

through evidence of (1) consumption of significant amounts of alcohol; (2) impaired

attention and reflexes; (3) watery or bloodshot eyes; (4) an odor of alcohol on the breath;

(5) unsteady balance; (6) failed field sobriety tests; or (7) slurred speech. Fields v. State,

888 N.E.2d 304, 307 (Ind. Ct. App. 2008) (quoting Ballinger v. State, 717 N.E.2d 939,

943 (Ind. Ct. App. 1999)).

       Here, the State presented evidence that Minnick had a BAC of .09, which is prima

facie evidence, standing alone, of intoxication. See I.C. 9-13-2-131; Temperly v. State,

933 N.E.2d 558, 567 (Ind. Ct. App. 2010), trans. denied. Prima facie evidence is

evidence that is sufficient on its face to establish a given fact or sustain judgment unless

contradictory evidence is produced. Temperly, id. Such contradictory evidence must

rebut the prima facie case to the satisfaction of the trier of fact. Hughes v. State, 481

N.E.2d 135, 137 (Ind. Ct. App. 1985). Here, of course, Minnick failed to rebut the prima

facie case to the satisfaction of the jury.

       Furthermore, the State presented additional evidence that upon being stopped by

Trooper Ward, Minnick smelled of alcohol, slurred some of his letters, spoke with a

“thick tongue,” and admitted that he had been steadily drinking rum for approximately

                                              10
five hours. Minnick’s argument is merely a request to reweigh the evidence, which we

cannot do. See Temperly, id. We conclude that the State presented sufficient evidence to

prove intoxication.

       The endangerment element is established by evidence showing that the

defendant’s condition or operating manner could have endangered any person, including

the public, the police, or himself. Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct.

App. 2009), trans. denied. Endangerment does not require that a person other than the

defendant be in the area where the act occurred. Id. at 644-45. We have repeatedly held

that evidence of excessive speed, standing alone, is sufficient to support a finding of

endangerment. Id. at 646.

       In this case, Minnick was driving his motorcycle at eighty-four miles per hour. He

argues that this evidence is insufficient because, although Trooper Ward testified that

Minnick’s speed was “pretty well” in excess of the speed limit, tr. 32, no witness testified

as to the precise speed limit on the State Road upon which Minnick was traveling.

       There is no set of facts, however, under which driving at eighty-four miles per

hour could be anything other than significantly in excess of the speed limit. Indiana Code

section 9-21-5-2 sets forth the maximum speed limits authorized by law on various types

of roadways. The highest speed allowed on any Indiana roadway is seventy miles per

hour. Minnick was exceeding the maximum authorized speed by fourteen miles per hour.

This is sufficient to show endangerment. See Vanderlinden, 918 N.E.2d at 646 n. 1

(holding that driving sixteen miles per hour over the speed limit constituted

endangerment).

                                            11
      B.     Speeding

      Minnick’s sole challenge to the sufficiency of the evidence pertaining to his

speeding conviction is to reiterate that the State introduced no evidence of the posted

speed limit on the State Road. However, in addition to Trooper Ward’s testimony that

Minnick was traveling “pretty well in [excess] of the posted speed limit,” tr. 32-33, the

State also presented evidence that Minnick was traveling at eighty-four miles per hour.

As noted above, Minnick was traveling fourteen miles per hour over the maximum

Indiana speed limit. There is sufficient evidence to support Minnick’s conviction.

                                    CONCLUSION

      Minnick’s right to confrontation under either the Sixth Amendment to the United

States Constitution or Article 1, Section 13 of the Indiana Constitution was not violated

by the admission of the DataMaster inspection certificates.       Furthermore, the State

presented sufficient evidence to support Minnick’s convictions of operating while

intoxicated and speeding.

      Affirmed.

BAKER, J., and BAILEY, J., concur.




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