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.
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.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.
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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.
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[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.
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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
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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,
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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.
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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.
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“‘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.
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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.
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“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.
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[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.
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[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.
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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
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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
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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
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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.
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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.
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[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