MEMORANDUM DECISION
Mar 05 2015, 7:10 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Jill M. Acklin Gregory F. Zoeller
McGrath, LLC Attorney General of Indiana
Carmel, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Ted Prather, March 5, 2015
Appellant-Defendant, Court of Appeals Cause No.
29A04-1408-CR-400
v. Appeal from the Hamilton Superior
Court
Cause No. 29D04-1307-CM-5542
State of Indiana,
Appellee-Plaintiff. The Honorable J. Richard Campbell,
Judge
Barnes, Judge.
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Case Summary
[1] Ted Prather appeals his conviction for Class C misdemeanor operating while
intoxicated. We affirm.
Issue
[2] Prather raises one issue, which we restate as whether the arresting officer’s
testimony about previous operating while intoxicated investigations and arrests
amounted to fundamental error.
Facts
[3] On January 26, 2013, Prather was driving on 146th Street in Hamilton County
when Noblesville Police Officer Bradley Kline observed Prather weave inside
his lane, increase and decrease speed, and change lanes without signaling or
without properly signaling. Officer Kline initiated a traffic stop and noticed
that Prather smelled of alcohol, had slurred speech, and had red glassy eyes.
Officer Kline also observed poor lethargic manual dexterity by Prather. When
Officer Kline asked Prather if he had been drinking, Prather said he did not
know how to answer. Prather declined field sobriety tests and a chemical test.
Officer Kline obtained a search warrant, and a blood draw was performed. The
results of the test indicated that Prather’s blood alcohol content (“BAC”) was
.12.
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[4] The State charged Prather with Class C misdemeanor operating while
intoxicated and Class C misdemeanor operating with an alcohol concentration
equivalent of at least .08. A bench trial was conducted at which the results of
the blood draw were admitted into evidence, and Officer Kline testified about
his encounter with Prather. During his testimony, the prosecutor questioned
Officer Kline without objection as follows:
Q. All right. Now, to go back into your general experience, in the
course with your time with the Noblesville Police Department, do you
have an approximation of how many OWI Investigations that you
have conducted?
A. It would be in the hundreds.
Q. And of those investigations, do you have an estimate of how
many resulted in arrests?
A. I would, it would still be in the hundreds.
Q. Do you have a rough idea of the percentage of arrests versus
investigations?
A. It would probably be about 90%.
Tr. p. 23. The trial court found Prather guilty of both counts but entered
judgment of conviction only for Class C misdemeanor operating while
intoxicated. Prather now appeals.
Analysis
[5] Prather contends that Officer’s Kline’s testimony about his record of
investigations and arrests was inadmissible vouching evidence under Indiana
Evidence Rule 704(b). Generally, the admission of evidence at trial is a matter
left to the trial court’s discretion. Clark v. State, 994 N.E.2d 252, 259-60 (Ind.
2013). Because there was no objection to this testimony, Prather acknowledges
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that the purported error must amount to fundamental error. The fundamental
error doctrine is an exception to the general rule that the failure to object at trial
constitutes procedural default precluding consideration of the issue on appeal.
Halliburton v. State, 1 N.E.3d 670, 679 (Ind. 2013). The fundamental error
exception is extremely narrow and applies only when the error constitutes a
blatant violation of basic principles, the harm or potential for harm is
substantial, and the resulting error denies the defendant fundamental due
process. Id. “This exception is available only in egregious circumstances.” Id.
[6] Indiana Evidence Rule 704(b) prohibits witnesses from testifying “to opinions
concerning intent, guilt, or innocence in a criminal case; the truth or falsity of
allegations; whether a witness has testified truthfully; or legal conclusions.”
Prather contends that Officer Kline’s testimony was an attempt to vouch for his
own accuracy in identifying individuals for whom there is probable cause to
arrest.
[7] Even if we were to assume that this was improper vouching testimony, we
cannot agree that its admission resulted in fundamental error here. Officer
Kline’s history of investigations and arrests has little bearing on his first-hand
observations of Prather’s driving, which included weaving within the lane,
increasing and decreasing speed, and improper lane changes. Moreover, lab
tests showed that Prather’s BAC was .12. In light of the overwhelming
evidence against Prather, the admission of Officer Kline’s testimony about
previous investigations and arrests did not amount to fundamental error.
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Conclusion
[8] Prather has not shown that the admission of Officer Kline’s testimony was
fundamental error. We affirm.
[9] Affirmed.
May, J., and Pyle, J., concur.
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