MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Mar 07 2019, 8:45 am
regarded as precedent or cited before any CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy P. Broden Curtis T. Hill, Jr.
Lafayette, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robin W. Walker, March 7, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1909
v. Appeal from the Tippecanoe
Circuit Court
State of Indiana, The Honorable Steven P. Meyer,
Appellee-Plaintiff. Judge
The Honorable Thomas H. Busch,
Senior Judge
Trial Court Cause No.
79D02-1708-F5-107
Friedlander, Senior Judge.
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[1] Following a two-phase trial, Robin Walker was convicted of operating a vehicle
1
while intoxicated with prior conviction, a Level 6 felony, and was adjudicated
2
a habitual vehicular substance offender. The sole issue he raises for our review
is whether the trial court erred in admitting into evidence toxicology results for
blood drawn at the time of his arrest. We affirm.
[2] The facts most favorable to the judgment reveal that on August 11, 2017,
around 11:30 p.m., Lafayette Police Officer David Chapman was parked in a
convenience store parking lot and observed a person on a three-wheeled moped
heading south on 14th Street. The driver of the moped, later determined to be
Walker, disregarded a red traffic light and turned right at the intersection,
without stopping and without using his indicator. Officer Chapman followed
Walker and saw Walker drive his moped onto a sidewalk and proceed down
the sidewalk for about half a block before returning to the road. Once back on
the road, Walker weaved in and out of traffic without signaling and cut off
several cars, causing the cars to suddenly brake. Officer Chapman initiated a
traffic stop, and Walker pulled the moped to the side of the road.
[3] Officer Chapman approached Walker and smelled the odor of an alcoholic
beverage on his breath. He noticed that Walker had poor balance. Officer
Chapman administered the horizontal gaze nystagmus test, which Walker
1
Ind. Code § 9-30-5-1(c) (2001); I.C. § 9-30-5-3(a)(1) (2014).
2
Ind. Code § 9-30-15.5-2 (2015).
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failed. Officer Chapman then asked if Walker would perform additional field
sobriety tests. Walker agreed. Walker failed both the one leg stand test and the
walk and turn test.
[4] Officer Chapman submitted a probable cause affidavit and obtained a search
warrant for samples of Walker’s blood and urine. Test results of the samples
revealed the presence of marijuana and indicated that Walker’s blood alcohol
content was .056.
[5] On August 16, 2017, the State charged Walker with Count I, Level 5 felony
operating a vehicle after forfeiture of license for life; Count II, Level 6 felony
operating a vehicle while intoxicated with prior conviction; Count III, Class A
misdemeanor operating a vehicle while intoxicated endangering a person;
Count IV, Class C misdemeanor operating a vehicle with a Schedule I or II
controlled substance or its metabolite in the body; and also alleged that Walker
was a habitual vehicular substance offender.
[6] Before trial, Walker filed a motion to suppress the toxicology results, and, on
May 3, 2018, the trial court held a hearing on the matter. During the hearing,
Officer Chapman’s probable cause affidavit for the search warrant was offered
into evidence. Officer Chapman testified and acknowledged that there was an
inaccuracy in the affidavit. Specifically, he had incorrectly marked a box on the
affidavit indicating that alcoholic beverage containers were in view at the time
Walker was arrested.
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[7] At the conclusion of the hearing, the trial court denied Walker’s motion to
suppress, finding as follows:
It appears that it was a clerical error and [Officer Chapman]
made a mistake, [sic] it was an honest mistake but it wasn’t done
willfully or intentionally. . . . So, all in all, uh, I think that uh –
that based upon this officer’s testimony that [the officer] did
provide sufficient observations [of Walker’s behavior]. In
addition to that the flunking – the failure of the three (3) field
tests. So, I – even if you didn’t have – even if you didn’t have
some of these observations, I think that not passing the field tests
and the driving behavior in and of itself probably would support
the probable cause affidavit for the blood draw, but we had these
other observations made by the officer and so uh, it appears that
enough sufficient evidence was given . . . that was reliable to
support the signing and the granting of the search warrant for the
blood and urine test.
Tr. Vol. 2, pp. 34, 36. When the toxicology results were offered at trial, Walker
objected. The trial court overruled his objection and admitted the results into
evidence.
[8] In a bifurcated proceeding, Walker first was tried by jury on July 12 and 13,
3
2018. At the conclusion of the trial, Walker was found guilty of Class C
misdemeanor operating a vehicle while intoxicated, Class A misdemeanor
3
Prior to trial, Count I, Level 5 felony operating a vehicle after forfeiture of license for life, was dismissed by
the State, and the remaining counts were renumbered. The record indicates that Walker was tried on two
counts in phase one of his trial: Count I, operating a vehicle while intoxicated endangering a person; and
Count II, operating a vehicle with a Schedule I or II controlled substance or its metabolite in the body.
When the trial court gave its final instructions, the jury was instructed that it could also find Walker guilty of
the lesser included offense of operating a vehicle while intoxicated as a Class C misdemeanor. See Tr. Vol. 3,
pp. 17-18.
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operating a vehicle while intoxicated endangering a person, and Class C
misdemeanor operating a vehicle with a Schedule I or II controlled substance or
its metabolite in the body. The trial court entered judgment on two of the
counts: operating a vehicle while intoxicated endangering a person and
operating a vehicle with a Schedule I or II controlled substance or its metabolite
in the body.
[9] The second phase of the trial began immediately following the conclusion of
phase one – to resolve the Level 6 felony charge of operating a vehicle while
intoxicated with prior conviction and to determine Walker’s habitual offender
status. Walker waived his right to a jury trial, and the trial court found him
guilty of the Level 6 felony and also found him to be a habitual vehicular
substance offender.
[10] On July 27, 2018, the trial court sentenced Walker to four years with sixty days
ordered served in the Tippecanoe County Jail and the remainder of the sentence
suspended to probation. Walker now appeals.
[11] The issue is whether the court abused its discretion in admitting into evidence
the results of Walker’s toxicology test of the blood sample that was drawn at the
time of his arrest. Generally, we review the trial court’s ruling on the admission
or exclusion of evidence for an abuse of discretion. Joyner v. State, 678 N.E.2d
386 (Ind. 1997). We reverse only where the decision is clearly against the logic
and effect of the facts and circumstances. Id.
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[12] Walker challenges the probable cause affidavit that supported the issuance of
the search warrant for the blood draw. The Fourth Amendment to the United
States Constitution and article I, section 11 of the Indiana Constitution both
require probable cause for the issuance of a search warrant. See Query v. State,
745 N.E.2d 769 (Ind. 2001). The task of the trial court when deciding whether
to issue a search warrant is “simply to make a practical, commonsense decision
whether, given all the circumstances set forth in the affidavit . . . there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Id. at 771 (quoting Illinois v. Gates, 462 U.S. 213, 238, 103 S. Ct. 2317,
2332, 76 L. Ed. 2d 527 (1983)). On appeal, this Court’s duty is to determine
whether the issuing court had a “substantial basis” for concluding that probable
cause existed. Id. We examine whether “reasonable inferences drawn from the
totality of the evidence support the determination of probable cause.” Id.
“[T]he amount of evidence needed to supply probable cause of operating while
intoxicated is minimal[.]” Hannoy v. State, 789 N.E.2d 977, 989 (Ind. Ct. App.
2003), trans. denied.
[13] The request for a search warrant is necessarily made ex parte. Stephenson v.
State, 796 N.E.2d 811 (Ind. Ct. App. 2003), trans. denied. Thus, to preserve the
basic notions of due process, a defendant can defeat the validity of a search
warrant if he can establish by a preponderance of the evidence that “a false
statement knowingly and intentionally, or with a reckless disregard for
the truth, was included by the affiant in the warrant affidavit, . . . and, . . . the
affidavit’s remaining content is insufficient to establish probable cause” for the
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search. Id. at 815 (quoting Franks v. Delaware, 438 U.S. 154, 155-56, 98 S. Ct.
2674, 2776, 57 L. Ed. 2d 667 (1978)). If the defendant meets this burden, the
search warrant must be voided, and the fruits of the search must be excluded to
the same extent as if the probable cause was lacking on the face of
the affidavit. Id. Mistakes and inaccuracies in a search warrant affidavit will
not defeat the reliability of the affidavit so long as such mistakes were
innocently made. Utley v. State, 589 N.E.2d 232 (Ind. 1992).
[14] Walker argues that the probable cause affidavit contained false statements,
specifically: “alcoholic beverage containers in view,” “Walker’s eyes were
watery and bloodshot,” and “his balance was poor.” Appellant’s Br. p. 6. He
maintains that the affidavit submitted by Officer Chapman was done so with
knowing, intentional, or reckless disregard for the truth. Walker contends that,
“excising these inaccuracies, the affidavit d[oes] not support a finding of
probable cause for issuance of a warrant for the blood draw.” Id. We disagree.
[15] There is no dispute that Officer Chapman erred when he indicated in the
affidavit that alcoholic beverage containers were in view when Walker was
arrested. We, however, can find no indication in the record that this single
piece of misinformation in the affidavit was made with reckless disregard for
the truth or that the mistake was anything more than innocently made.
[16] As for the officer’s other observations, Walker argues that the footage from
Officer Chapman’s body camera contradicted them. To the contrary, the
footage indicates that Walker exhibited poor balance. Walker swayed while the
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officer administered field sobriety tests, and he needed to brace himself against
a retaining wall. While the body camera footage did not confirm the officer’s
observations that Walker’s eyes were watery, glassy, and bloodshot, the officer
testified under oath to these observations.
[17] Furthermore, additional evidence supported a finding of probable cause to issue
the search warrant. The officer testified that he observed Walker proceed
through a red traffic signal, fail to use his turn signal, drive onto a sidewalk, and
drive erratically through traffic. Also, Walker failed to follow the officer’s
instructions when the horizontal gaze nystagmus test was administered, and
Walker failed two additional field sobriety tests.
[18] Based upon the foregoing, we find that the trial court had a substantial basis for
concluding that probable cause existed to issue the search warrant. The court
did not abuse its discretion when it admitted into evidence Walker’s toxicology
results from the blood draw.
[19] Judgment affirmed.
Crone, J., and Bradford, J., concur.
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