MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                          Mar 16 2016, 8:47 am
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
Daniel Dixon                                            Gregory F. Zoeller
Lawrence County Public Defender                         Attorney General of Indiana
Agency                                                  Larry D. Allen
Bedford, Indiana                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kyle Hutton,                                            March 16, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        47A04-1503-CR-117
        v.                                              Appeal from the Lawrence
                                                        Superior Court
State of Indiana,                                       The Honorable Michael A.
Appellee-Plaintiff                                      Robbins, Judge
                                                        Trial Court Cause No.
                                                        47D01-1212-FB-1425



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016    Page 1 of 21
                                             Case Summary
[1]   Kyle Hutton appeals his convictions and sentence for three counts of class B

      felony causing death when operating a motor vehicle with an alcohol

      concentration equivalent (“ACE”) of 0.15 or more. Hutton asserts that the

      trial court abused its discretion by refusing his tendered instruction on the

      lesser-included offense of class A misdemeanor operating a vehicle with an

      ACE of 0.15 or more. Hutton also contends that the trial court abused its

      discretion by refusing his tendered instruction on intervening cause. Hutton

      further challenges the trial court’s decision to admit, over his objections, the

      results of his two blood draws. Finally, he argues that his forty-two-year

      aggregate sentence is inappropriate based on the nature of the offenses and his

      character.


[2]   We conclude that the trial court did not abuse its discretion by refusing

      Hutton’s tendered instructions. We also conclude that the trial court properly

      admitted the results of his first blood draw and any error in admitting the

      second blood draw was harmless. Finally, we conclude that Hutton failed to

      carry his burden to show that his sentence is inappropriate. Therefore, we

      affirm.


                                 Facts and Procedural History
[3]   In July 2012, Hutton spent the day drinking alcohol with his wife, Morgan

      Hutton, and their two friends, Dasan Spires and Laura Duncan, at Lake

      Monroe. Later that day, the four drove in Hutton’s Jeep to a brewery, where


      Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 2 of 21
      Hutton continued to drink. They stayed two or three hours. Around 10:10

      p.m., the four left in Hutton’s Jeep, with Hutton driving. No one put on a

      seatbelt. A friend offered to drive the entire group in her vehicle, but Hutton

      refused, saying that he did not want to leave his Jeep at the brewery.


[4]   Hutton drove toward his house. Around 10:30 p.m., the Jeep swerved to the

      left, went down an embankment, and struck a telephone pole. All four people

      were thrown from the Jeep. All three passengers died at the scene. Hutton got

      up and walked to his home, which would have taken approximately six

      minutes. He passed eight houses, but he did not stop at any of them. When he

      arrived home, he delayed calling 911 because he was scared. Around 10:59

      p.m., Hutton called 911.


[5]   Officers responded to the scene of the accident. Officers noted that the Jeep’s

      driver’s seat was in its rearmost position. Hutton is about six feet three inches

      tall, whereas Morgan was only five feet five inches tall.


[6]   According to a later accident reconstruction, Hutton drove through a right-hand

      curve going approximately forty-eight miles per hour (in a thirty-miles-per-hour

      zone), which was too fast to take the curve. Tr. at 1917. The accident

      reconstruction showed that Hutton abruptly steered left and lost control of the

      Jeep. It also revealed that Hutton partially applied his brakes before the

      collision, but he still hit the telephone pole at thirty-one miles per hour.


[7]   Bedford Police Officer Morgan Lee was dispatched from the accident scene to

      Hutton’s home. Hutton was standing in the yard when Officer Lee arrived.

      Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 3 of 21
      Officer Lee smelled alcohol emanating from Hutton’s breath and body and

      observed that Hutton’s eyes were bloodshot and glassy. Officer Lee also

      noticed that Hutton had difficulty walking and was slurring his speech. Officer

      Lee called for an ambulance because Hutton was in pain and was having

      trouble breathing. Officer Lee’s experience with automotive accidents led him

      to believe that Hutton likely had suffered some chest injury from striking the

      steering wheel.


[8]   While waiting for the ambulance, Officer Lee twice asked Hutton if he had

      been the driver of the Jeep, but Hutton only replied, “Come on man.” Id. at

      833, 837. When the ambulance arrived, paramedic Michael Bierbaum provided

      medical care to Hutton. Hutton told Bierbaum that he had been in a crash and

      that he thought that everyone else was dead. Bierbaum wrote in his report that

      Hutton was driving the Jeep when it crashed. Although Bierbaum did not

      independently recall Hutton telling him that, Bierbaum testified that since it

      was in his report he assumed that Hutton had told him. Id. at 1006. The

      paramedics took Hutton to Indiana University Health Bedford Hospital

      (“Bedford Hospital”), with Officer Lee following.


[9]   At Bedford Hospital, Officer Lee advised Hutton of Indiana’s implied consent

      law in the presence of Nurse Debra Potter. Hutton said, “[W]hatever,” and

      stuck out his arm. Id. at 838-39. Nurse Potter drew Hutton’s blood for the

      forensic chemical test. Blood testing subsequently showed that at the time of

      the blood draw Hutton’s ACE was 0.27. Id. at 1434. Based on the calculations



      Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 4 of 21
       at the Indiana State Department of Toxicology, at the time of the accident

       Hutton’s ACE was between 0.28 and 0.3. Id. at 1434, 1436.


[10]   At 11:55 p.m., Hutton was transported by helicopter to Indiana University

       Health Methodist Hospital (“Methodist Hospital”) in Indianapolis. Nurse

       Joseph Gibbs treated Hutton in the helicopter. Nurse Gibbs observed that

       Hutton appeared to be intoxicated. Hutton asked Gibbs repeatedly, “Did I kill

       my wife?” Id. at 1052-53.


[11]   At Methodist Hospital, Nurse Jamie Jackson performed a blood draw on

       Hutton as part of the hospital’s standard medical care. Id. at 1189. The blood

       test indicated that Hutton’s ACE was still between 0.22 and 0.27. Id. at 1439-

       40; Exs. 62-63. Hutton’s injuries were consistent with striking the steering wheel

       while driving the Jeep during the collision. Id. at 1946-47.


[12]   The State charged Hutton with three counts of class B felony causing death

       when operating a motor vehicle with an ACE of 0.15 or more. Hutton filed a

       motion to suppress the results from the Bedford Hospital blood draw, which the

       trial court denied. At the jury trial, the State introduced the results of the blood

       draws from Bedford and Methodist Hospitals. Hutton objected to both blood

       draws on the basis that the State failed to lay a proper evidentiary foundation

       that the blood draws were conducted under the direction of a physician or

       under a physician-prepared protocol. The trial court admitted the results of

       both blood draws. Hutton testified that his wife was driving the Jeep and that

       he was in the back seat when the accident occurred. At the conclusion of


       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 5 of 21
       evidence, Hutton tendered an instruction on the lesser-included offense of class

       A misdemeanor operating a motor vehicle with an ACE of 0.15 or more. He

       also tendered an instruction on intervening cause. The trial court declined to

       give either instruction.


[13]   The jury found Hutton guilty as charged. The trial court sentenced Hutton to

       consecutive terms of fourteen years on each count, for an aggregate term of

       forty-two years, with two years suspended to probation. This appeal ensued.


                                      Discussion and Decision

           Section 1 – The trial court did not abuse its discretion by
          refusing Hutton’s tendered instruction on a lesser-included
                                    offense.
[14]   Hutton asserts that the trial court abused its discretion by refusing his tendered

       instruction on the lesser-included offense of class A misdemeanor operating a

       vehicle with an ACE of 0.15 or more. “‘The purpose of a jury instruction is to

       inform the jury of the law applicable to the facts without misleading the jury

       and to enable it to comprehend the case clearly and arrive at a just, fair, and

       correct verdict.’” Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008)

       (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). “Instruction of the

       jury is left to the sound judgment of the trial court and will not be disturbed

       absent an abuse of discretion.” Id.


[15]   We use a three-part analysis to determine whether an instruction on a lesser-

       included offense is appropriate. Watts v. State, 885 N.E.2d 1228, 1231-32 (Ind.


       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 6 of 21
       2008). First, the court determines whether the offense is an inherently lesser-

       included offense based on its elements. Id. If the lesser offense may be

       established by proof of all of the same or less than all of the same material

       elements of the crime, or if the only difference between the two offenses is that

       the lesser offense requires proof of a lesser culpability, then the lesser offense is

       inherently included in the crime charged. Id. Second, if the lesser offense is

       not inherently included, the court determines whether the lesser offense is

       factually included by the allegations in the charging information. Third, if the

       offense is either inherently or factually included, the court must examine the

       evidence presented by each party and determine whether there is a “serious

       evidentiary dispute” about the element or elements distinguishing the greater

       from the lesser offense, such that the jury could find that the lesser, but not the

       greater, offense was committed. Id.


[16]   Hutton tendered an instruction defining class A misdemeanor operating a

       vehicle with an ACE of 0.15 or more and informing the jury that it was a lesser-

       included offense of class B felony causing death while operating a vehicle with

       an ACE of 0.15 or more. Appellant’s App. at 441. The prosecutor objected to

       the instruction, and the parties engaged in a lengthy debate as to whether there

       was a serious evidentiary dispute regarding the element–causing death–that

       distinguished the lesser-included offense from the greater offense. Tr. at 2250-

       52. Ultimately, the trial court ruled as follows:


               The Court finds that the elements of the lesser offense are
               included in the crimes charged. The Court further determines

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 7 of 21
                that there is [not 1] a serious evidentiary dispute where by the jury
                could conclude the lesser offense is committed, but not greater
                charged offenses. And it is therefore the ruling of the Court [that]
                the lesser included offense instruction and verdict form will not
                be given.


       Id. at 2351-52.


[17]   The parties agree that class A misdemeanor operating a vehicle with an ACE of

       0.15 or more is an inherently-included offense of class B felony causing death

       when operating a vehicle with an ACE of 0.15 or more. They disagree on

       whether there was a serious evidentiary dispute on the distinguishing element of

       causing death. Hutton contends that there was conflicting evidence regarding

       the cause of the deaths because there was evidence that there was a deer in the

       road that caused the Jeep’s driver to swerve. In support, Hutton cites to

       evidence that there were woods and apple trees in the vicinity of the accident.

       He also relies on Bedford Police Officer Robert Herr’s testimony that it was “a

       possibility” that there was a deer or animal in the roadway. Tr. at 1633.

       Hutton further cites Lawrence County Sheriff Mike Branham’s testimony that

       “‘the abrupt steering input to the left,’ … could be indicative of an avoidance




       1
         Hutton argues that the trial court found that there was a serious evidentiary dispute because the transcript
       accurately reflects what the trial court said. We note that the parties argued at length as to whether there was
       a serious evidentiary dispute. During the discussion, the trial court appeared to be fully aware of the legal
       principle that if there is a serious evidentiary dispute on an element distinguishing the greater offense from
       the lesser-included offense, then the instruction for the lesser-included offense must be given. Moreover,
       “[w]e presume the trial judge is aware of and knows the law.” Conley v. State, 972 N.E.2d 864, 873 (Ind.
       2012). Therefore, since the trial court declined Hutton’s instruction on the lesser-included offense, we
       presume that the trial court misspoke and meant to say that there was not a serious evidentiary dispute.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016                Page 8 of 21
       maneuver.” Appellant’s Br. at 11 (quoting Tr. at 1918 and citing Tr. at 1965).

       Sheriff Branham actually stated that he “couldn’t rule out somebody engaging

       in an avoidance maneuver.” Tr. at 1965. At best, the evidence Hutton relies on

       shows that it was possible that a deer was in the road, but whether there

       actually was a deer in the road remains pure speculation. “[S]peculation does

       not create a ‘serious evidentiary dispute.’” Allen v. State, 686 N.E.2d 760, 777

       (Ind. 1997), cert. denied (1999). We conclude that there was not a serious

       evidentiary dispute as to whether there was a deer in the roadway, and therefore

       the trial court did not abuse its discretion by refusing Hutton’s instruction on

       the lesser-included offense.


          Section 2 – The trial court did not abuse its discretion by
        refusing Hutton’s tendered instruction on intervening cause.
[18]   Hutton contends that the trial court abused its discretion by refusing his

       tendered instruction on intervening cause. As noted above, jury instruction lies

       within the sound discretion of the trial court. Burton v. State, 978 N.E.2d 520,

       524 (Ind. Ct. App. 2012). “A trial court erroneously refuses to give a tendered

       instruction, or part of a tendered instruction, if: (1) the instruction correctly sets

       out the law; (2) evidence supports the giving of the instruction; and (3) the

       substance of the instruction is not covered by the other instructions given.” Id.


[19]   Hutton tendered the following instruction: “An intervening cause is an

       independent force that breaks the causal connection between the actions and/or

       omissions of the Defendant and the death.” Appellant’s App. at 439. The trial



       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 9 of 21
       court refused to give the instruction but allowed Hutton to present an argument

       about intervening cause to the jury during closing argument. Tr. at 2249.


[20]   Assuming, without deciding, that Hutton’s instruction was a correct statement

       of the law 2 and that the evidence supported giving the instruction, we agree

       with the State that the substance of Hutton’s proposed instruction was covered

       by other instructions:


                                       FINAL INSTRUCTION NO. 8


                “Proximate cause” is that cause which, in natural and continual
                sequence, unbroken by any efficient intervening cause, produces
                the injury (or death) and without which, the injury (or death)
                would not have occurred.


                                       FINAL INSTRUCTION NO. 9


                “Cause of death” is that event which initiates a chain of events,
                however short or protracted, that results in the death of an
                individual.




       2
         Hutton asserts that his tendered instruction correctly defined intervening cause because it was drawn from
       Carrigg v. State, 696 N.E.2d 392 (Ind. Ct. App. 1998), trans. denied. However, in Carrigg, the court included
       additional information defining intervening cause:
              An intervening cause is an independent force that breaks the causal connection between the
              actions of the defendant and the injury. …. In order for an intervening cause to break the chain
              of criminal responsibility, the intervening cause must be so extraordinary that it would be unfair
              to hold the defendant responsible for the actual result.
       Id. at 395-96; see also Wooley v. State, 716 N.E.2d 919, 928 (Ind. 1999) (same); Watson v. State, 776 N.E.2d 914,
       920 (Ind. Ct. App. 2002) (same). Therefore, it could be argued that Hutton’s tendered instruction may not be
       a complete definition of intervening cause.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016                Page 10 of 21
                A conviction for causing death as alleged in Counts I-III of the
                charges against the defendant, Kyle Hutton, requires proof,
                beyond a reasonable doubt, that the defendant’s conduct while
                operating the vehicle was the proximate cause of the deaths
                alleged.


       Appellant’s App. at 460. 3


[21]   These instructions defined proximate cause and informed the jury that there

       must be proof beyond a reasonable doubt that Hutton’s conduct was the

       proximate cause of the deaths. In comparing the definition of proximate cause

       with Hutton’s tendered instruction, we find them similar. Proximate cause was

       defined as that cause which, “unbroken by any efficient intervening cause,”

       produced the deaths. Id. Hutton’s proposed instruction defined intervening

       cause as an independent force that “breaks the causal connection.” Id. at 439.

       Both instructions conveyed the concept that an intervening cause breaks the

       causal sequence. We are unpersuaded that Hutton’s proposed instruction adds

       any information that would aid the jury. 4 Given that the substance of Hutton’s

       tendered instruction was covered by the other instructions, we conclude that the

       trial court did not abuse its discretion by refusing Hutton’s tendered instruction.




       3
         To sustain a conviction for causing death when operating a vehicle, “the State must prove the defendant’s
       conduct was a proximate cause of the victim’s injury or death.” Abney v. State, 766 N.E.2d 1175, 1177-78
       (Ind. 2002). “Conduct,” in the context of Abney, “is taken to mean the driver’s act of operating the vehicle
       and not any particular way in which the driver operates the vehicle.” Spaulding v. State, 815 N.E.2d 1039,
       1042 (Ind. Ct. App. 2004).
       4
         Hutton argues that the jury was confused because during deliberations it asked for a definition of proximate
       cause. Appellant’s App. at 468. We are unpersuaded that Hutton’s tendered instruction on intervening
       cause would have helped the jury with its question.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016             Page 11 of 21
         Section 3 - The trial court did not abuse its discretion by
       admitting the test results of the Bedford Hospital blood draw.
[22]   Hutton challenges the admission of the blood test results from the Bedford

       Hospital blood draw. Our standard of review is well settled:

               Generally, a trial court’s ruling on the admissibility of evidence is
               reviewed for an abuse of discretion. We will reverse only where
               the decision is clearly against the logic and effect of the facts and
               circumstances. Even if the trial court’s decision was an abuse of
               discretion, we will not reverse if the admission of evidence
               constituted harmless error.


       Combs v. State, 895 N.E.2d 1252, 1255 (Ind. Ct. App. 2008) (citations omitted),

       trans. denied (2009).


[23]   Hutton contends that the blood test results from the Bedford Hospital blood

       draw are inadmissible for three reasons: (1) Officer Lee was not authorized

       under Indiana Code Section 9-30-7-3(a) to offer the blood test because he did

       not have a reason to believe that Hutton operated a vehicle that was in a fatal

       accident; (2) Hutton did not consent to the blood draw; and (3) the State failed

       to lay a proper foundation that Nurse Potter was acting under the direction of

       or under a protocol prepared by a physician as required by Indiana Code

       Section 9-30-6-6.


[24]   Indiana’s implied consent statutes appear at Indiana Code Chapters 9-30-6 and

       9-30-7. Indiana Code Chapter 9-30-7 governs implied consent for drivers of

       vehicles in accidents involving serious bodily injury or death and therefore

       applies here. Under this Chapter, “[a] law enforcement officer shall offer a
       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 12 of 21
       portable breath test or chemical test to any person who the officer has reason to

       believe operated a vehicle that was involved in a fatal accident or an accident

       involving serious bodily injury.” Ind. Code § 9-30-7-3(a) (emphasis added). 5

       Hutton argues that there is insufficient evidence to support a legal conclusion

       that Officer Lee had reason to believe that Hutton had operated a vehicle

       involved in a fatal accident. 6 We disagree.


[25]   Officer Lee knew that Hutton had been in the Jeep with three other people who

       had been thrown from the Jeep and had died. There is no question that the

       Jeep was involved in a fatal accident. 7 Officer Lee observed Hutton’s pain and

       inability to breathe. Based on his experience, Officer Lee believed that these

       symptoms were consistent with injuries that would be incurred by hitting the

       steering wheel. Tr. at 835-36. Officer Lee asked Hutton if he was the driver,




       5
         Indiana Code Section 9-30-7-3 does not require a showing of probable cause. Temperly v. State, 933 N.E.2d
       558, 562 (Ind. Ct. App. 2010) (citing Brown v. State, 744 N.E.2d 989 (Ind. Ct. App 2001)), trans. denied (2011),
       cert. denied. But see Hannoy v. State, 789 N.E.2d 977, 982 (Ind. Ct. App. 2003) (“For purposes of [Chapter 9-
       30-7], police shall offer a chemical test to any driver whom the officer has probable cause to believe was
       involved in an accident resulting in serious bodily injury or death.”) (citing Brown, 744 N.E.2d at 993). In
       contrast, Chapter 9-30-6, which governs operating a vehicle while intoxicated, explicitly requires that a law
       enforcement officer have “probable cause to believe” that a person was driving while intoxicated.
       6
         Even though it is not required under Section 9-30-7-3(a), Hutton concedes that Officer Lee had probable
       cause to believe that he was intoxicated.
       7
         In Duncan v. State, 799 N.E.2d 538 (Ind. Ct. App. 2003), we noted that it is acceptable for police to draw a
       person’s blood without his consent if the blood draw is conducted in compliance with federal and state
       constitutional guarantees against unreasonable search and seizure. Id. at 542-43. Constitutional compliance
       requires that
              (1) there is probable cause to believe that the person has operated a vehicle while intoxicated; (2)
              the dissipation of alcohol in the blood creates exigent circumstances under which there is no
              time to secure a search warrant; (3) the test chosen to measure the person’s blood alcohol
              concentration is a reasonable one; and (4) the test is performed in a reasonable manner.
       Id.

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016                Page 13 of 21
       but rather than denying it, Hutton only replied, “Come on man.” Id. at 837.

       We conclude that Officer Lee had sufficient reason to believe that Hutton was

       driving the Jeep. Therefore, pursuant to Section 9-30-7-3(a), Officer Lee was

       required to offer Hutton a portable breath test or a chemical test.


[26]   Hutton also argues that his response to the offer of the blood test was equivocal

       and cannot be deemed consent. We disagree. When Officer Lee read the

       implied consent card to Hutton, Hutton replied, “Whatever,” and extended his

       arm. Id. at 838-39. Hutton’s act of extending his arm is easily construed as a

       physical manifestation of consent, especially since he did not express, by word

       or action, any reluctance or objection to the blood test. Given these

       circumstances, we conclude that Hutton gave his consent to the blood draw. 8




       8
         “Consent” for purposes of Indiana’s implied consent statutes is currently under review by our supreme
       court, which has granted transfer in Burnell v. State, 44 N.E.3d 771 (Ind. Ct. App. 2015). There, in response
       to the offer of a chemical test, Burnell argued with the officer about it and finally said, “Well if I refuse, I’m
       going to jail either way. So yeah, I guess I gotta take it.” Id. at 774. At that point, Burnell began to walk
       away from the officer, and he grabbed her arm. She told him not to touch her and began moving away again.
       The officer deemed her behavior a refusal to take the chemical test and placed her under arrest. The trial
       court suspended Burnell’s license for refusing the chemical test, and she petitioned for review of the
       suspension. After viewing the video from the in-car police camera, the trial court determined that her
       behavior constituted a refusal. Burnell appeal. This Court affirmed the trial court. In the lead opinion,
       Judge Pyle concluded that “anything short of an unqualified, unequivocal assent to a properly offered
       chemical test constitutes a refusal.” Id. at 777. The author of this opinion concurred in result, stating, “I do
       not believe that we need go so far as to categorically hold that ‘anything short of an unqualified, unequivocal
       assent to a properly offered chemical test constitutes a refusal.’ Each case should be judged on its specific
       facts, and in my view the facts most favorable to the trial court’s determination in this case are sufficient to
       affirm it.” Id. at 778 (Crone, J., concurring in result) (citation omitted). Judge Brown dissented, explaining,
       “I would find that Burnell’s statement was not ‘substantially short of an unqualified, unequivocal assent,’”
       and therefore the evidence did not establish that she refused. Id. at 780 (quoting State v. Pandoli, 262 A.2d 41,
       42 (N.J. Super. Ct. App. Div. 1970)).

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016                Page 14 of 21
[27]   Hutton further contends that the State failed to lay a proper foundation that

       Nurse Potter was acting under the direction of a physician or under a physician-

       prepared protocol as required by Indiana Code Section 9-30-6-6. Although

       Officer Lee offered Hutton a blood test under Chapter 9-30-7, Section 9-30-6-6

       is applicable pursuant to Indiana Code Section 9-30-7-4(b), which provides,


               IC 9-30-6-6 applies if a physician or a person trained in obtaining
               bodily substance samples who is acting under the direction of or
               under a protocol prepared by a physician or who has been
               engaged to obtain bodily substance samples:


                       (1) obtains a blood, urine, or other bodily substance
                       sample from a person at the request of a law enforcement
                       officer who acts under this section; or


                       (2) performs a chemical test on blood, urine, or another
                       bodily substance obtained from a person under this
                       section.


[28]   Section 9-30-6-6(a) provides:

               A physician or a person trained in obtaining bodily substance
               samples and acting under the direction of or under a protocol
               prepared by a physician, who:


                       (1) obtains a blood, urine, or other bodily substance
                       sample from a person, regardless of whether the sample is
                       taken for diagnostic purposes or at the request of a law
                       enforcement officer under this section; or


                       (2) performs a chemical test on blood, urine, or other
                       bodily substance obtained from a person;

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 15 of 21
               shall deliver the sample or disclose the results of the test to a law
               enforcement officer who requests the sample or results as a part
               of a criminal investigation. Samples and test results shall be
               provided to a law enforcement officer even if the person has not
               consented to or otherwise authorized their release.


[29]   Hutton argues that, contrary to Section 9-30-6-6(a), Nurse Potter was not a

       physician or a person trained in obtaining bodily substances samples or acting

       under the direction of or under a protocol prepared by a physician. We observe

       that the statute is “designed as a tool to acquire evidence of blood alcohol

       content rather than as a device to exclude evidence.” Abney v. State, 821 N.E.2d

       375, 379 (Ind. 2005).


[30]   Hutton recognizes that “Nurse Potter testified that her blood draw procedure

       was in conformity with a protocol approved by a physician.” Appellant’s Br. at

       25. He contends that the State failed to offer into evidence a copy of the actual

       protocol that Nurse Potter testified that she had followed in obtaining the blood

       samples. The State counters that Nurse Potter’s testimony alone was sufficient

       to show that she met the requirements of the statute.


[31]   In support of his argument, Hutton relies on Combs, 895 N.E.2d 1252, in which

       this Court concluded that the trial court abused its discretion by admitting the

       results of the blood draw. At Combs’s trial, the medical technologist who

       performed Combs’s blood draw testified only as to how she did it. The court

       concluded that the State failed to lay a proper foundation because the record

       was “devoid of evidence” that a physician prepared the protocol and there was

       “absolutely no evidence” that the medical technologist acted under the

       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 16 of 21
       direction of a physician or that a physician prepared the protocol. Id. at 1258.

       See also State v. Hunter, 898 N.E.2d 455, 459 (Ind. Ct. App. 2008) (concluding

       that State failed to lay proper foundation where there was “absolutely no

       evidence” that hospital nurse who drew blood was acting under physician-

       prepared protocol).


[32]   In contrast to Combs, this Court upheld the admission of blood test results in

       Shepherd v. State, 690 N.E.2d 318, 328 (Ind. Ct. App. 1997), disapproved on other

       grounds, trans. denied (1998). There, the medical technician testified that the

       protocol used to draw Shepherd’s blood was prepared by the technical staff and

       then subsequently reviewed and approved by a physician. The protocol

       contained a doctor’s signature certifying that the steps of the protocol were the

       accepted policy and procedures of the hospital. The court concluded that this

       evidence was sufficient to show that the protocol was prepared by a physician

       as required by Section 9-30-6-6. Id. at 328-29.


[33]   This case falls somewhere between Combs and Shepherd. Here, Nurse Potter

       testified that on the evening that she performed Hutton’s blood draw, Bedford

       Hospital had a protocol for collecting blood samples in place that was approved

       by a physician. Tr. at 1082. She explained, “When I talk about the draw

       protocol I am talking about how the blood is obtained from the patient and I

       use the [hospital] protocol.” Id. at 1124. She testified that she was required to

       follow the hospital’s physician-approved protocol for a forensic blood draw. Id.

       at 1082-83. She further testified that she follows the hospital’s protocol every

       time she does a blood alcohol draw. Id. at 1100. She testified that the protocol

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       for a regular blood draw will be followed for a forensic blood draw, but that the

       forensic blood draw will have additional requirements to insure a tighter chain

       of custody and accurate documentation. Id. at 1123. Nurse Potter also

       explained the protocol for a blood alcohol draw to the jury. Id. at 1083-86. We

       conclude that Nurse Potter’s testimony established a sufficient foundation that

       she drew Hutton’s blood under a physician-prepared protocol, and therefore the

       blood draw complied with Section 9-30-6-6. Accordingly, the trial court did not

       abuse its discretion in admitting the Bedford Hospital blood draw results.


[34]   Hutton also argues that the Methodist Hospital blood test results were

       inadmissible because the State failed to lay a proper foundation that Nurse

       Jackson was acting under the direction of or under a protocol prepared by a

       physician as required by Section 9-30-6-6. We need not address his argument

       because the Methodist Hospital blood test results are cumulative of the Bedford

       Hospital blood test results. The admission of evidence is harmless and is not

       grounds for reversal where the evidence is merely cumulative of other evidence

       properly admitted. Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012).

       Because the trial court properly admitted the Bedford Hospital blood test

       results, any error in the admission of the Methodist Hospital blood test results is

       harmless.


                     Section 4 – Hutton’s sentence is appropriate.
[35]   Finally, Hutton asks us to reduce his sentence pursuant to Indiana Appellate

       Rule 7(B), which states, “The Court may revise a sentence authorized by statute

       if, after due consideration of the trial court’s decision, the Court finds that the
       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 18 of 21
       sentence is inappropriate in light of the nature of the offense and the character

       of the offender.” When reviewing a sentence, our principal role is to leaven the

       outliers rather than necessarily achieve what is perceived as the correct result.

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). “We do not look to

       determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Conley v. State, 972 N.E.2d 864, 876 (Ind.

       2012). Hutton has the burden to show that his sentence is inappropriate.

       Anglemyer v. State, 868 N.E.2d 482, 494 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218.


[36]   Turning first to the nature of the offense, we observe that “the advisory sentence

       is the starting point the Legislature selected as appropriate for the crime

       committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). The sentencing

       range for a class B felony is six to twenty years, with an advisory sentence of ten

       years. Ind. Code § 35-50-2-5. Hutton was sentenced to consecutive sentences of

       fourteen years on each count for an aggregate sentence of forty-two years.

       Here, Hutton’s conduct was worse than that necessary to establish the class B

       felony. His ACE was estimated to be about 0.28 at the time of the crash, well

       beyond that required for his crime. Before the crash, he was offered a ride and

       declined. Further, when he left the scene of the crime, he did not stop at the

       nearby houses to seek immediate help for his wife and friends and delayed

       calling 911.


[37]   As for Hutton’s character, he has four prior arrests for alcohol-related offenses.

       In 2000, he was convicted of class C misdemeanor illegal consumption of an

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       alcoholic beverage in Lawrence County. In 2001, he was convicted of class A

       misdemeanor operating a vehicle while intoxicated in Marion County. While

       he was on probation, he was arrested for operating a vehicle while intoxicated

       endangering a person in Delaware County and was entered into a pretrial

       diversion program. While he was in the pretrial diversion program in 2002, he

       committed class C misdemeanor illegal consumption of an alcoholic beverage

       in Boone County. In 2002, he was also arrested for class C felony burglary,

       class D felony theft, and class A misdemeanor conversion in Marion County.

       In 2003, he entered into a plea agreement and pled guilty to class D felony theft

       and class A misdemeanor conversion, while the State dismissed the class C

       felony burglary. Later, his conviction for class D felony theft was modified to a

       class A misdemeanor.


[38]   We agree with the trial court that Hutton’s criminal history is a “clear

       indication of a pattern of conduct and failure to take responsibility for that

       conduct that ultimately led to the death of three individuals.” Tr. at 2599-2600.

       As for the current offense, Hutton violated the conditions of his pretrial release

       by testing positive for the use of alcohol, after initially refusing to submit to the

       screening process, and driving with a suspended license. He has not sought

       treatment for his substance abuse since he committed the current offenses. The

       trial court found that he has not shown remorse or taken responsibility for his

       part in the deaths of his wife and friends. Accordingly, we conclude that

       Hutton has failed to carry his burden to show that his sentence is inappropriate

       based on the nature of the offenses and his character.


       Court of Appeals of Indiana | Memorandum Decision 47A04-1503-CR-117| March 16, 2016   Page 20 of 21
[39]   Affirmed.


       Vaidik, C.J., and Bailey, J., concur.




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