                                                                                Mar 04 2015, 7:51 am




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Victoria L. Bailey                                          Gregory F. Zoeller
      Marion County Public Defender Agency                        Attorney General of Indiana
      Indianapolis, Indiana
                                                                  Cynthia L. Ploughe
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
           COURT OF APPEALS OF INDIANA

      David Bisard,                                               March 4, 2015

      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  02A03-1312-CR-492
              v.                                                  Appeal from the Allen County
                                                                  Superior Court
                                                                  Cause No. 02D06-1302-FB-32
      State of Indiana                                            Honorable John Surbeck, Judge
      Appellee-Plaintiff




      Friedlander, Judge.

[1]   Following a jury trial, David Bisard was convicted of Operating a Vehicle with

      a Blood Alcohol Content of .15 or Higher Causing Death, a class B felony,1 and

      two counts of Operating a Vehicle with a Blood Alcohol Content of More Than


      1
       Ind. Code Ann. § 9-30-5-5 (West, Westlaw 2010). Effective July 1, 2014, this offense has been reclassified
      as a Level 4 felony. I.C. § 9-30-5-5 (West, Westlaw current with all 2014 Public Laws of the 2014 Second
      Regular Session and Second Regular Technical Session of the 118th General Assembly). Because Bisard
      committed this offense prior to that date, it retains its prior classification as a class B felony.

      Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                          Page 1 of 19
      .08 Percent Causing Serious Bodily Injury, class D felonies.2 Bisard was

      subsequently sentenced to an aggregate term of sixteen years executed with

      three years suspended to probation. On appeal, Bisard presents three issues for

      our review:

          1. Was Bisard denied his right to present a defense when the trial court
             ruled that if Bisard presented evidence from several witnesses that he was
             not a heavy drinker in response to expert testimony offered by the State,
             he would open the door to evidence of his subsequent arrest for operating
             a vehicle while intoxicated?

          2. Did the trial court abuse its discretion in denying Bisard’s motion for
             mistrial based upon issues relating to juror misconduct?

          3. Did the trial court abuse its discretion when for purposes of sentencing it
             considered as an aggravating factor that Bisard had abused police power
             and breached the public trust?

      We affirm.

[2]   On August 6, 2010, David Bisard, then an officer with the Indianapolis

      Metropolitan Police Department (IMPD), responded to a radio run to assist

      other IMPD officers who were pursuing a subject with an outstanding arrest

      warrant in the area of 42nd Street and Priscilla. Bisard was in uniform and

      driving his marked vehicle. While en route Bisard activated his emergency

      lights and siren. Bisard was traveling westbound on East 56th Street “weaving

      in and out of traffic” and travelling approximately seventy-four to seventy-five


      2
        I.C. § 9-30-5-4 (West, Westlaw 2010). Effective July 1, 2014, this offense has been reclassified as a Level 6
      felony. Ind. Code Ann. § 9-30-5-4 (West, Westlaw current with all 2014 Public Laws of the 2014 Second
      Regular Session and Second Regular Technical Session of the 118th General Assembly). Because Bisard
      committed these offenses prior to that date, they retain their prior classification as class D felonies.

      Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                             Page 2 of 19
      miles per hour. Transcript at 680. Near the intersection of East 56th Street and

      Brendan Way South Drive, Bisard’s vehicle collided with two motorcycles

      stopped in the drive-through lane at that intersection. Eric Wells died as a

      result of the injuries sustained in the accident. Mary Mills and Kurt Weekly

      were both seriously injured. Shortly after impact, Bisard informed the IMPD

      control operator that he had been involved in an accident and requested that

      medics be rushed to the scene.


[3]   Several members of IMPD, including members of the IMPD command staff,

      fire personnel from various agencies, and medical personnel (collectively, First

      Responders) were immediately dispatched to the scene. Several First

      Responders had close, face-to-face interaction with Bisard while treating him

      for minor injuries he received as a result of the accident. Those who interacted

      with Bisard at the scene testified that Bisard did not exhibit any signs of

      intoxication, such as bloodshot eyes, unsteady balance, or slurred speech.

      Several others testified that there was no indication that Bisard was intoxicated.

[4]   Bisard was eventually taken to Methodist Occupational Health Center for

      further treatment of his injuries. There, as a matter of standard procedure,

      Bisard was advised of Indiana’s implied consent law, and he consented to a

      blood draw. The blood results showed that Bisard’s blood-alcohol content was

      0.19.




      Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015   Page 3 of 19
[5]   On January 12, 2011,3 the State charged Bisard with Count I, class B felony

      operating a motor vehicle with a blood alcohol-content of .15 or higher causing

      the death of Eric Wells; Count II, class C felony operating a vehicle while

      intoxicated causing the death of Eric Wells; Count III, class C felony reckless

      homicide; Count IV, class D felony operating a motor vehicle while intoxicated

      causing serious bodily injury to Kurt Weekly; Count V, class D felony

      operating a motor vehicle with a blood-alcohol content of .08 or higher causing

      serious bodily injury to Kurt Weekly; Count VI, class D felony operating a

      motor vehicle while intoxicated causing serious bodily injury to Mary Mills;

      and Count VII, class D felony operating a motor vehicle with a blood-alcohol

      content of .08 or higher causing serious bodily injury to Mary Mills. Two

      additional charges of criminal recklessness, Counts VIII and IX, were

      subsequently added.

[6]   On February 4, 2011, Bisard filed a motion to suppress blood evidence and/or

      dismiss the charges, and the court subsequently held a hearing thereon. On

      May 31, 2011, the trial court ruled that the blood evidence would be suppressed

      as to the Title 9 charges for OWI but allowed that evidence for the charge of

      reckless homicide. Upon requests by both parties, the trial court certified its

      order for interlocutory appeal, and this court accepted jurisdiction. This court

      reversed the trial court, finding that the blood evidence was admissible with



      3
        The State originally charged Bisard on August 11, 2010 under Cause No. 49G05-1008-FB-62502, with
      offenses arising from the vehicular crash that occurred on August 6, 2010. The State moved to dismiss the
      charges, citing “Evidentiary Problems”, on August 20, 2010. Appellant’s Appendix at 159. The State refiled
      the charges on January 12, 2011 under Cause No. 49G05-1101-FB-2516.

      Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                         Page 4 of 19
      respect to all charges. See Bisard v. State, 973 N.E.2d 1229 (Ind. Ct. App. 2012),

      trans. denied.


[7]   On February 14, 2013, the trial court granted Bisard’s request for change of

      venue. The Allen County Superior Court accepted jurisdiction on February 19,

      2013. A jury trial commenced on October 14, 2013.

[8]   On the morning of closing arguments, November 4, 2013, the trial court

      informed the parties of “a potential jury issue.” Transcript at 3901. Juror 8-2

      was then brought into the courtroom. In response to questioning by the trial

      court, Juror 8-2 admitted that despite repeated instructions to refrain from

      conducting independent research about the case, he did in fact conduct an

      internet search concerning the instruments used to analyze blood samples for

      alcohol. Juror 8-2 stated that he wondered whether it was possible for anyone

      “to beat a blood alcohol test.” Id. at 3905. Juror 8-2 informed the court that his

      research revealed that some 500 blood-alcohol tests had been overturned in

      another state, and that he had shared this information with other jurors. Juror

      8-2 was removed from the jury and escorted from the building.


[9]   The trial court then brought in each of the remaining jurors individually and

      asked them if they were aware of Juror 8-2’s research. Some of the jurors knew

      nothing of Juror 8-2’s internet research. Other jurors told the court they knew

      something of Juror 8-2’s research and that they were somewhat aware that the

      research concerned the blood analysis equipment and the reversal of other

      convictions in another state. All of the jurors who indicated that they knew


      Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015   Page 5 of 19
       anything about Juror 8-2’s conduct readily assured the trial court of their ability

       to set aside what they had heard and base their decision solely upon the

       evidence presented in the courtroom. After completing its questioning of the

       remaining jurors, the trial court recessed the proceedings. When the trial

       reconvened, the parties gave their closing arguments and the case was given to

       the jury.

[10]   After the jury retired to begin its deliberations, the court sought to make a

       record of the discussion in court chambers regarding the decision to dismiss

       Juror 8-2 and replace that juror with the alternate. In response, Bisard sought

       to make a record that during that discussion in chambers he had requested a

       mistrial based upon juror misconduct. The prosecutor replied that she did not

       recall a motion for mistrial being made by Bisard. The court explained that it

       did not recall any “serious motion for mistrial” or any “vigorous objection” to

       proceeding with the case. Id. at 4044. The court further stated that in light of

       its colloquy with the jurors, the court was “perfectly comfortable” with letting

       the case proceed to the jury, thereby indicating that it believed the remaining

       jurors had not been tainted by Juror 8-2’s conduct. Id.


[11]   On November 5, 2013, the jury returned its verdicts, finding Bisard guilty on all

       counts. At a sentencing hearing on November 26, 2013, the trial court entered

       judgment of conviction on Count I, class B felony operating a motor vehicle

       with a blood alcohol-content of .15 or higher causing the death of Eric Wells,

       Count V, class D felony operating a motor vehicle with a blood-alcohol content

       of .08 or higher causing serious bodily injury to Kurt Weekly, and Count VII,

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015   Page 6 of 19
       class D felony operating a motor vehicle with a blood-alcohol content of .08 or

       higher causing serious bodily injury to Mary Mills.4 The trial court then

       sentenced Bisard to thirteen years, with ten years executed in the Department of

       Correction on Count I and one and one-half years each for Counts V and VII.

       The court ordered the sentences served consecutively for an aggregate sentence

       of sixteen years with three years suspended.

[12]   In explaining the sentence imposed, the trial court discussed its findings as to

       mitigating and aggravating circumstances. With regard to the aggravating

       factors, the trial court noted that Bisard’s conduct “resulted in injuries greater

       than the elements necessary to prove the commission of the offenses” and that

       he was in need of rehabilitative treatment that could only be provided by a

       penal facility. Sentencing Transcript at 140. The trial court further found as

       aggravating that Bisard abused his police power and breached the public trust.

       Specifically, the court stated:

                  The Defendant was in fact a commissioned police officer bound to
                  uphold and enforce the laws of the State. What came to mind as I
                  worked on, considered and finally drafted this statement was what we
                  constantly hear is that police officers are there to protect and serve and
                  certainly on August the 6th, 2010, the Defendants [sic] conduct did not
                  protect or serve the public or these particular three victims. The
                  Defendant was on duty while significantly intoxicated. At .19 blood
                  alcohol content.




       4
           The trial court determined that the remaining counts merged with these convictions.


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                   Page 7 of 19
       Id. at 140-141.5 The court continued, noting that “[t]he Defendant

       unnecessarily responded to a non-emergency call at a high rate of speed,

       disregarding department rules and general orders regarding approach to

       intersections resulting in the death and injury of law abiding and unsuspecting

       citizens.” Id. at 141.


                                                              1.

[13]   Bisard argues that he was denied his due process right to present a defense

       when the trial court ruled that Bisard could not present the testimony of

       numerous witnesses who would testify as to his drinking or non-drinking habits

       without opening the door to evidence of his subsequent OWI arrest.6


[14]   Every defendant has the fundamental right to present witnesses in his or her

       own defense. Barber v. State, 911 N.E.2d 641 (Ind. Ct. App. 2009) (citing Roach

       v. State, 695 N.E.2d 934) (Ind. 1998)); see also Chambers v. Mississippi, 410 U.S.

       284, 302 (1973) (“Few rights are more fundamental than that of an accused to

       present witnesses in his own defense.”). “This right ‘is in plain terms the right

       to present a defense, the right to present the defendant’s version of the facts as

       well as the prosecutor’s to the jury so it may decide where the truth lies.’”

       Barber v. State, 911 N.E.2d at 646 (quoting Roach v. State, 695 N.E.2d at 939).




       5
         The trial court explained that based on the evidence presented at trial, it found the blood tests showing a
       Bisard’s blood-alcohol content was .19 to be accurate.
       6
         Bisard’s 2013 OWI arrest was the subject of several pre-trial motions. The trial court ruled at that time that
       evidence of Bisard’s subsequent OWI arrest would not be admissible at trial.

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                             Page 8 of 19
       “‘At the same time, while the right to present witnesses is of the utmost

       importance, it is not absolute.’” Id. (quoting Roach v. State, 695 N.E.2d at 939).


[15]   During the State’s case-in-chief, numerous witnesses, on questioning by both

       the State and the defense, revealed that Bisard exhibited no signs of intoxication

       immediately following the accident. The State thereafter called Dr. Alan Jones

       to testify about the accuracy of blood-alcohol tests and to describe in general

       terms7 the effects of alcohol on the human body and various signs of

       impairment. With regard to the latter, Dr. Jones testified as to what it means to

       be a tolerant drinker, describing a tolerant drinker as an individual who is a

       heavy drinker and drinks alcohol over long periods of time such that they may

       exhibit less pronounced signs of intoxication. Dr. Jones explained that this is so

       because the receptors in the human brain adapt and become less sensitive and

       that such influences the signs and symptoms of intoxication that a person may

       exhibit. In short, Dr. Jones opined that it would be possible for a tolerant

       drinker to be intoxicated, but show no signs of intoxication.

[16]   In response to Dr. Jones’s testimony, Bisard sought to present testimony from

       several witnesses8 that he was not a heavy drinker to refute the implication that

       he was the sort of tolerant drinker described by Dr. Jones. Bisard argued that

       the State elicited testimony from Dr. Jones that was “not just on generalities of



       7
         Dr. Jones’s testimony was the subject of a motion in limine prior to trial in which it was agreed that his
       testimony would address the notion of the tolerant drinker in general terms and not directly reference Bisard.
       8
         Bisard made an offer of proof as to the evidence he would present to rebut the notion that he was a tolerant
       drinker. Specifically, Bisard identified thirteen witnesses, each of whom he had worked with or socialized
       with, who would have testified that they had never witnessed Bisard consume large amounts of alcohol on a
       regular basis or utilize alcohol to excess.

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                           Page 9 of 19
       tolerance” but rather, through examples, a specific reference to Bisard.

       Transcript at 2714. The prosecutor disagreed with Bisard’s characterization of

       Dr. Jones’s testimony being specific to Bisard. The trial court agreed with the

       State, finding that there was nothing in Dr. Jones’s testimony that “pointed

       fingers at Mr. Bisard.” Id. at 2716. The trial court informed Bisard that if he

       called witnesses to testify that he was not a heavy drinker and to vouch for his

       drinking or non-drinking habits, such would open the door for the State to

       present evidence of his 2013 OWI arrest.9

[17]   We begin by noting that the trial court merely foreshadowed what its ruling

       regarding the admissibility of his 2013 OWI arrest would be if in fact Bisard

       chose to present witnesses to testify as to his drinking habits. It remains,

       however, that Bisard did not put forth his proposed witnesses, and the State did

       not offer evidence of his prior OWI arrest. The trial court, therefore, was never

       asked to make a ruling. We find that these circumstances are akin to a motion

       in limine. As a general rule, motions in limine do not preserve errors for

       appeal. Shoultz v. State, 995 N.E.2d 647 (Ind. Ct. App. 2013), trans. denied.

       Thus, in this sense, the threat of opening the door to admission of the 2013

       OWI arrest did not preserve the issue for appellate review and certainly did not

       amount to a denial of due process.


[18]   Bisard nevertheless maintains that the trial court’s threatened ruling that

       evidence of his subsequent arrest would be admissible presented him with a


       9
           The trial court did not rule that the evidence Bisard sought to present was inadmissible.


       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                         Page 10 of 19
       “Hobson’s choice.” This court has defined a “Hobson’s choice” as being “an

       apparently free choice that is really no choice at all.” See Gray v. State, 841

       N.E.2d 1210, 1218 (Ind. Ct. App. 2006), trans. denied. We disagree.


[19]   Defendants often must make hard evidentiary choices. Here, Bisard’s choice

       may have been difficult, but it remains that he had a choice to make. Bisard

       could have chosen to present witness testimony that they had never seen him

       intoxicated or consume alcohol to excess, and when the State presented

       evidence of his subsequent OWI arrest, as the prosecutor indicated she would,

       Bisard could have challenged the admission of that evidence

       contemporaneously therewith. Bisard then could have made an argument on

       appeal that admission of his subsequent OWI was in violation of Ind. Trial

       Rule 404(b) both as to relevance and as being unduly prejudicial. Bisard could

       have also chosen, as he did here, to let the record stand, i.e., with testimony

       from numerous witnesses who observed no outward signs of intoxication from

       Bisard shortly after the accident and witnesses who told of the blood analysis

       revealing a remarkably high blood alcohol concentration level. Difficult

       evidentiary and strategic decisions do not in and of themselves violate a

       defendant’s due process right to present a defense.

                                                          2.




       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015    Page 11 of 19
[20]   Bisard argues that the trial court abused its discretion in denying his motion for

       a mistrial due to juror misconduct.10 “A mistrial is an extreme remedy

       warranted only when no other curative measure will rectify the situation.”

       Burks v. State, 838 N.E.2d 510, 519 (Ind. Ct. App. 2005 (quoting Harris v. State,

       824 N.E.2d 432, 439 (Ind. Ct. App. 2005)), trans. denied. In order to prevail on

       appeal from the denial of a motion for mistrial, a defendant must establish that

       the questioned information or event was so prejudicial and inflammatory that

       he or she was placed in a position of grave peril to which he or she should not

       have been subjected. Burks v. State, 838 N.E.2d 510. “The gravity of the peril is

       determined by the probable and persuasive effect on the jury’s decision.” Id. at

       519 (quoting Mote v. State, 775 N.E.2d 687, 689 (Ind. Ct. App. 2002), trans.

       denied). Since the trial court is in the best position to gauge the circumstances

       and probable impact upon the jury, a trial court’s decision whether to grant a

       mistrial is afforded great deference. Burks v. State, 838 N.E.2d 510. Therefore,

       we will review the trial court’s ruling on a motion for a mistrial only for an

       abuse of discretion. Shriner v. State, 829 N.E.2d 612 (Ind. Ct. App. 2005).




       10
         We note that the record is not entirely clear as to whether Bisard actually made a motion for mistrial. As
       noted above, after the trial court conducted its inquiry of each of the jurors, the court and the parties
       adjourned to chambers where the issue of how to proceed was discussed without being recorded. After final
       instructions were given, final arguments were made, and the jury had begun its deliberations, Bisard asked
       that the record reflect that he had moved for a mistrial in chambers. The prosecutor asserted that she did not
       recall a motion for mistrial being made. The trial court noted for the record that it did not recollect that a
       “serious motion for mistrial” was made by Bisard or that Bisard had “any vigorous objection” to proceeding
       with the case during the discussion that took place in chambers. Transcript at 4044.

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015                          Page 12 of 19
[21]   Bisard’s motion for mistrial was based upon juror misconduct. In Ramirez v.

       State, 7 N.E.3d 933 (Ind. 2014), our Supreme Court restated the procedure trial

       courts are to follow in handling instances of juror misconduct.

               Defendants seeking a mistrial for suspected jury taint are entitled to the
               presumption of prejudice only after making two showings, by a
               preponderance of the evidence: (1) extra-judicial contact or
               communications between jurors and unauthorized persons occurred,
               and (2) the contact or communications pertained to the matter before
               the jury. Currin [v. State], 497 N.E.2d [1045, 1046 (Ind. 1986)]. The
               burden then shifts to the State to rebut this presumption of prejudice by
               showing that any contact or communications were harmless. See
               Myers v. State, 240 Ind. 641, 646, 168 N.E.2d 220, 223 (1960); Oldham
               v. State, 249 Ind. 301, 305, 231 N.E.2d 791, 793 (1967). If the State
               does not rebut the presumption, the trial court must grant a new trial.
               On the other hand, if a defendant fails to make the initial two-part
               showing, the presumption does not apply. Instead, the trial court must
               apply the probable harm standard for juror misconduct, granting a new
               trial only if the misconduct is “gross and probably harmed” the
               defendant. Henri v. Curto, 908 N.E.2d 196, 202 (Ind. 2009) (internal
               quotation marks omitted). But in egregious cases where juror conduct
               fundamentally compromises the appearance of juror neutrality, trial
               courts should skip Currin’s two-part inquiry, find irrebuttable prejudice,
               and immediately declare a mistrial. At all times, trial courts have
               discretion to decide whether a defendant has satisfied the initial two-
               part showing necessary to obtain the presumption of prejudice or a
               finding of irrebuttable prejudice.
       Id. at 939 (some internal citations omitted).


[22]   Further, trial courts must immediately investigate suspected jury taint by

       thoroughly interviewing jurors collectively and individually, if necessary.

       Ramirez v. State, 7 N.E.2d 933. If any of the jurors have been exposed, that

       juror must be individually interrogated by the court outside the presence of the

       other jurors to determine the degree of exposure and the likely effect thereof.

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015        Page 13 of 19
       Id. After each juror has been questioned, he should be individually

       admonished. Id. After all of the exposed jurors have been questioned and

       individually admonished, they jury should be assembled and collectively

       admonished. Id. If the imperiled party deems such action insufficient to

       remove the peril, that party should move for a mistrial. Id. The trial court is

       then tasked with applying the procedure set forth above. We rely upon trial

       courts to assess the situation and decide whether a mistrial is necessary under

       the circumstances. Id.


[23]   Here, Juror 8-2 committed juror misconduct by performing an internet search

       on the reliability of blood tests. The State does not dispute the occurrence of

       the misconduct or question that it pertained to an issue before the jury.

       Pursuant to Ramirez, prejudice is therefore presumed and the burden shifted to

       the State to rebut this presumption of prejudice by showing that any contact or

       communications were harmless.

[24]   As soon as the trial court learned of Juror 8-2’s misconduct, the court brought

       Juror 8-2 into the courtroom and inquired into his actions. Juror 8-2 admitted

       to conducting independent research and informed the court of his findings. The

       trial court immediately removed Juror 8-2 from the jury and had him escorted

       from the building. The trial court then summoned the remaining jurors, one at

       a time, into the courtroom, where the trial court questioned each of them about

       what they knew of Juror 8-2’s actions. Some of the jurors knew nothing of

       Juror 8-2’s conduct. Those jurors who were somewhat aware of what Juror 8-2

       had done assured the trial court that they could set aside anything they had

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015   Page 14 of 19
       heard and decide the case based solely on the evidence they had heard or had

       seen in the courtroom.

[25]   An unrecorded discussion between the court and the parties about how to

       handle Juror 8-2’s misconduct was held in court chambers. After the case was

       given to the jury, a record was made as to the basis for the decision to proceed

       with the trial. Based on its questioning of the jurors, the jurors’ assurances that

       they could decide the case on the evidence presented in the courtroom, in

       conjunction with its assessment of the jurors’ demeanor, the trial court

       determined that it was “perfectly comfortable” with allowing the jury to begin

       deliberations. Transcript at 4044. Given the trial court’s assessment that the

       dismissal of Juror 8-2 removed any taint on the jury, the State was not put in

       the position to have to present additional evidence demonstrating that Juror 8-

       2’s conduct was harmless. The trial court is in the best position to gauge the

       surrounding circumstances of an event and its impact on the jury, we will not

       second-guess the trial court in this regard. Having reviewed the record, we

       conclude that the trial court’s finding that a mistrial was not warranted was

       supported thereby.

[26]   Contrary to Bisard’s argument, we do not find that Juror 8-2’s conduct falls in

       that category of cases where the misconduct is so egregious that it created an

       irrebuttable prejudice necessitating a mistrial. Juror 8-2’s independent internet

       research into the reliability of blood tests is qualitatively different from the

       situation in Kelley v. State, 555 N.E.2d 140 (Ind. 1990),where during a recess in

       trial proceedings, jurors sat with a witness for the prosecution at lunch, and in

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015     Page 15 of 19
       Woods v. State, 119 N.E.2d 558 (Ind. 1954), where police officers who were

       witnesses for the State, and the sheriff, who had been involved with solving the

       crime, visited with jurors in the room where the jury gathered during

       intermissions and recesses. See also May v. State, 716 N.E.2d 419 (Ind. 1999)

       (finding that trial court abused its discretion in refusing to remove a juror after it

       was revealed that the juror in question encountered one of the State’s witnesses

       during a lunch break and invited the witness, whom the juror had known before

       the trial and had not seen in fifteen years, to the juror’s home).

[27]   Here, Juror 8-2 informed the court of the results of his internet search regarding

       the accuracy of blood-alcohol tests and that he had shared that information

       with some of the other jurors. Juror 8-2 was immediately relieved of his jury

       duties and escorted from the building. Those jurors who were aware of Juror 8-

       2’s internet search clearly indicated that they could set aside what they heard

       from Juror 8-2 in arriving at their verdicts. As noted above, the trial court

       appropriately determined that the dismissal of Juror 8-2 removed any taint.


                                                          3.

[28]   Bisard argues that the trial court abused its discretion when for purposes of

       sentencing it considered as an aggravating factor that Bisard had abused police

       power and breached the public trust.

[29]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218

       (Ind. 2007). So long as the sentence is within the statutory range, it is subject to

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015    Page 16 of 19
       review only for an abuse of discretion. Id. An abuse of discretion will be found

       where the 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. Id. A trial court may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of

       law. Id. Because the trial court no longer has an obligation to weigh

       aggravating and mitigating factors against each other when imposing a

       sentence, a trial court cannot now be said to have abused its discretion in failing

       to properly weigh such factors. Id.


[30]   In challenging the trial court’s finding that Bisard abused his police power and

       breached the public trust, Bisard essentially claims that such finding is not

       supported by the record. Bisard also seems to suggest that the trial court’s

       finding is not a proper finding given the circumstances of this case.

[31]   We recognize that the violation of a position of trust factor is commonly cited

       in other situations, namely where an adult commits an offense against a minor.

       Moreover, because most law enforcement officers abide by the law, it is

       infrequent that a trial court would have to cite violation of public trust as an

       aggravating factor, thus resulting in few cases citing such factor in this context.



       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015   Page 17 of 19
       Nevertheless, such reliance on violation of the public trust is not completely

       unknown.

[32]   In Powell v. State, 769 N.E.2d 1128 (Ind. 2002), abrogated on other grounds by

       Beattie v. State, 924 N.E.2d 643 (Ind. 2010), the defendant was a police officer

       who was convicted of murdering a suspected drug dealer. During the

       commission of the offense, the defendant was wearing his police uniform and

       acted under the pretense that he was investigating drug activity. In sentencing

       the defendant, the trial court cited as part of the nature and circumstances of the

       crime defendant’s abuse of police power and breach of public trust. The

       Supreme Court noted the trial court’s finding in this regard, in addition to other

       circumstances, in affirming the sentence imposed by the trial court. See also

       Collins v. State, 643 N.E.2d 375 (Ind. Ct. App. 1994) (relying upon fact that

       defendant who molested his daughter was a former police officer and was

       trained in the law as an aggravating circumstance).

[33]   Here, the trial court noted that Bisard was “a commissioned police officer

       bound to uphold and enforce the laws of the State” and that as a police officer

       he was bound to protect and serve. Sentencing Transcript at 140. The court

       further noted that on the day of the accident, Bisard, with a blood-alcohol

       content of .19, “unnecessarily responded to a non-emergency call at a high rate

       of speed, disregarding department rules and general orders regarding approach

       to intersections resulting in the death and injury of law abiding and

       unsuspecting citizens.” Id. at 141. The trial court’s explanation demonstrates

       its finding of a violation of the public trust was supported by the record.

       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015   Page 18 of 19
[34]   We further agree with the comments put forth by the State in its appellate brief.

       The State aptly noted the “unique role of police officers in society and the

       necessity that the community trust officers to do their job appropriately.”

       Appellee’s Brief at 23. Further, “[s]ociety has a right to expect that law

       enforcement officers, who are hired to protect and to serve the community, will

       perform the tasks necessary for that role while they are sober and taking care to

       create no undue harm to society.” Id. As appropriately noted by the trial court,

       Bisard violated this public trust. The trial court did not abuse its discretion in

       relying upon this factor as a significant aggravating circumstance.

[35]   Judgment affirmed.


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




       Court of Appeals of Indiana | Opinion 02A03-1312-CR-492 | March 4, 2015      Page 19 of 19
