FOR PUBLICATION

ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

MARC LOPEZ                                      GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                KARL M. SCHARNBERG
                                                Deputy Attorney General

                                                                              FILED
                                                Indianapolis, Indiana

                                                                          Feb 23 2012, 9:22 am
                              IN THE
                    COURT OF APPEALS OF INDIANA                                   CLERK
                                                                                of the supreme court,
                                                                                court of appeals and
                                                                                       tax court




BERNARD SHORT,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )    No. 49A02-1105-CR-403
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                        APPEAL FROM THE MARION SUPERIOR COURT
                              The Honorable Becky Pierson-Treacy
                           The Honorable David Hooper, Commissioner
                               Cause No. 49F19-1005-CM-41130


                                     February 23, 2012

                               OPINION - FOR PUBLICATION

BARNES, Judge
                                    Case Summary

      Bernard Short appeals his conviction for Class A misdemeanor operating a vehicle

while intoxicated. We affirm.

                                         Issues

      Short raises two issues, which we restate as:

             I.     whether the trial court properly admitted the results of
                    the certified chemical breath test; and

             II.    whether the trial court properly instructed the jury.

                                          Facts

      In the early morning hours of May 23, 2010, a driver called 911 to report a

possibly impaired driver on Interstate 70 in Indianapolis. Officer Timothy Christie of the

Lawrence Police Department initiated a traffic stop of Short after observing his vehicle

make unsafe lane movements and cut off other vehicles. Short had glassy eyes, slurred

speech, and “an odor of alcoholic beverages coming from his person and breath.” Tr. p.

117. Officer Christie called for a DUI task force car, and Lieutenant Richard Kivett

arrived on the scene. Lieutenant Kivett noticed that Short had bloodshot eyes and was

“weaving back and forth.” Id. at 133. Lieutenant Kivett performed three field sobriety

tests on Short, and Short failed each test. Test results from a certified chemical breath

test showed that Short had a BAC of 0.10.

      The State charged Short with Class C misdemeanor operating a vehicle with a

blood alcohol content of .08 or greater and Class A misdemeanor operating a vehicle

while intoxicated. Short filed a motion to suppress the results of the certified chemical


                                            2
breath test, alleging that Lieutenant Kivett failed to follow the proper testing procedures

by placing the mouthpiece on the testing equipment earlier than allowed. The trial court

denied Short’s motion to suppress but certified the order for interlocutory appeal. This

court denied Short’s request for an interlocutory appeal.

       At Short’s jury trial, Lieutenant Kivett testified that he placed the mouthpiece on

the testing equipment at the proper time, and the State sought to admit the results of the

certified chemical breath test. Short objected and questioned Lieutenant Kivett about his

testimony at the suppression hearing.       The trial court overruled the objection and

admitted the results of the certified chemical breath test. Short also sought to have the

jury instructed regarding the admissibility of a chemical breath test, and the trial court

rejected the instruction.   The jury found Short guilty as charged.          The trial court

“merged” the Class C misdemeanor operating a vehicle with a blood alcohol content of

.08 or greater charge “into” the Class A misdemeanor operating a vehicle while

intoxicated conviction. App. pp. 9-10. The trial court sentenced Short to 365 days with

363 days suspended to probation. Short now appeals.

                                          Analysis

                      I. Admissibility of the Chemical Breath Test

       Short argues that the trial court abused its discretion by admitting the results of the

certified chemical breath test. The admission of chemical breath test results is left to the

sound discretion of the trial court and will be reviewed for an abuse of discretion. State

v. Molnar, 803 N.E.2d 261, 265 (Ind. Ct. App. 2004). When we view for abuse of

discretion, we accord the trial court considerable deference, view the evidence in a light

                                              3
most favorable to the decision, and determine whether the trial court’s decision can be

justified in light of the evidence and circumstances of the case. Fish v. State, 710 N.E.2d

183, 185 (Ind. 1999). We do not reweigh evidence; rather, we consider the evidence

most favorable to the trial court’s ruling as well as any uncontroverted evidence favorable

to the defendant. Williams v. State, 898 N.E.2d 400, 402 (Ind. Ct. App. 2008), trans.

denied.

       Results of chemical breath tests are not admissible if the test operator, test

equipment, chemicals used in the test, or techniques used in the test have not been

approved in accordance with the rules adopted by the Department of Toxicology. Ind.

Code § 9-30-6-5(d). Because the State is the party offering the results of the breath test,

it has the burden of establishing the foundation for admitting the results. Molnar, 803

N.E.2d at 265. Therefore, the State must set forth the proper procedure for administering

a chemical breath test and show that the operator followed that procedure. Id.

       Short argues that Lieutenant Kivett’s testimony at the trial regarding the procedure

used to perform the chemical breath test on Short was different than his testimony at the

suppression hearing. According to Short, the trial court should not have admitted the test

results because of the differences in the testimony and because Lieutenant Kivett’s

suppression hearing testimony showed that he did not follow the appropriate testing

procedures.

       The Department of Toxicology’s rules regarding the chemical breath test provide

in part:



                                            4
             The following is the approved method to conduct a B.A.C.
             Datamaster with keyboard test for ethanol intoxication:

             (1)    The person to be tested must:

                    (A)    have had nothing to eat or drink;
                    (B)    not have put any foreign substance into his or
                           her mouth or respiratory tract; and
                    (C)    not smoke;

                    within twenty (20) minutes before the time a breath
                    sample is taken.

             (2)    The green LED on the instrument display must be
                    glowing.

             (3)    Depress the run button, enter the password, and insert
                    the evidence ticket or verify that the external printer is
                    ready to use.

             (4)    Follow the displayed request for information, and enter
                    the information by the keyboard.

             (5)    When “please blow” appears on the display, place a
                    new mouthpiece in the breath tube. The subject must
                    deliver a breath sample.

             (6)    When the printer stops, remove the evidence ticket or
                    report sheet from the printer and check the report
                    printed on the evidence ticket or report sheet for the
                    numerical ethanol subject sample and correct date and
                    time.

260 Ind. Admin. Code 1.1-4-8

      At the trial, Lieutenant Kivett testified that he observed Short for more than twenty

minutes and that Short did not put anything in his mouth during that time. When the

green LED on the instrument display was lit, he pressed the run switch, entered a

password, inserted the evidence ticket, and entered the requested information via the


                                            5
keyboard.    When the display questioned whether the subject refused the test, Short

indicated that he would take the test, and Lieutenant Kivett entered that information. The

screen then indicated, “please blow,” and Lieutenant Kivett attached the mouthpiece. Tr.

p. 167. Short then blew into the machine. When the State attempted to admit the test

results into evidence, Short asked preliminary questions regarding Lieutenant Kivett’s

suppression hearing testimony, in which Lieutenant Kivett testified that he placed the

mouthpiece on the machine before the display read, “please blow.” Short argued that the

test results were inadmissible because Lieutenant Kivett failed to follow the appropriate

testing procedures, but the State argued that Lieutenant Kivett’s trial testimony merely

cleared up confusion regarding the testing steps detailed in his suppression testimony.

The trial court admitted the test results over Short’s objection.

       Given our standard of review for admissibility of evidence, we cannot say that the

trial court abused its discretion. Considering the evidence most favorable to the trial

court’s decision, Lieutenant Kivett properly performed the chemical breath test, and the

test results were admissible.

                                    II. Jury Instruction

       Short argues that the trial court erred by rejecting his proposed jury instruction.

We review a trial court’s decision on how to instruct a jury for abuse of discretion.

Treadway v. State, 924 N.E.2d 621, 636 (Ind. 2010).                 When evaluating the jury

instructions on appeal this Court looks to whether the tendered instructions correctly state

the law, whether there is evidence in the record to support giving the instruction, and

whether the substance of the proffered instruction is covered by other instructions. Id.

                                              6
We will reverse a conviction only if the appellant demonstrates that the instructional error

prejudices his substantial rights. Id.

       Short tendered the following proposed jury instruction:

                    For the results of a chemical breath test to be
              admissible three requirements must be satisfied:

                     (1)     the person who administered the test must be
                             certified by the Department of Toxicology,
                     (2)     the equipment used in the test must have been
                             inspected and approved by the Department of
                             Toxicology, and
                     (3)     the operator must have followed the procedures
                             approved by the Department of Toxicology.

                     The results of chemical tests that involve an analysis of
              a person’s breath are not admissible if:

                     (1)     the test operator;
                     (2)     the test equipment;
                     (3)     the chemicals used in the test, if any; or
                     (4)     the techniques used in the test;

              have not been approved in accordance with the rules adopted
              by the Department of Toxicology.

App. p. 15. The trial court was concerned with the language discussing admissibility in

the proposed instruction and rejected it.

       The proposed instruction tracks the language of Indiana Code Section 9-30-6-5(d)

and Ramirez v. State, 928 N.E.2d 214 (Ind. Ct. App. 2010), trans. denied. However,

simply because the language tracks the language from an opinion from this court and a

statute does not make it proper for a jury instruction. See Ludy v. State, 784 N.E.2d 459,

462 (Ind. 2003) (“The mere fact that certain language or expression [is] used in the

opinions of this Court to reach its final conclusion does not make it proper language for

                                              7
instructions to a jury.”).      Our supreme court has held that admissibility is to be

determined by the court, not the jury. For example, in Brown v. State, 275 Ind. 441, 450,

417 N.E.2d 333, 339 (1981), our supreme court held that the trial court properly refused

to give the defendant’s proposed instruction regarding the rape shield statute. The court

noted: “It is clear that the law in question concerns the issue of admissibility and this

issue is to be resolved by the court, not the jury.” Brown, 275 Ind. at 450, 417 N.E.2d at

339; see also Coates v. State, 534 N.E.2d 1087, 1093 (Ind. 1989) (rejecting a jury

instruction concerning the admissibility of a confession).          The proposed instruction

concerns admissibility of evidence, which is determined by the trial court, and the trial

court properly rejected the instruction.

                                           Conclusion

          The trial court did not abuse its discretion by admitting the results of the chemical

breath test, and the trial court properly rejected Short’s proposed jury instruction. We

affirm.

          Affirmed.

KIRSCH, J., and BRADFORD, J., concur.




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