from the Grant Superior Court. The Honorable Warren Haas,
Judge. Trial Court Cause No. 27D03-1303-FD-110.
FOR APPELLANT: Jerry T. Drook, Marion, Indiana.
FOR APPELLEE: Gregory F. Zoeller, Attorney General of
Indiana; Larry D. Allen, Deputy Attorney General,
Judge. Robb, J., and Mathias, J., concur.
Dannie Carl Pattison appeals his conviction of Class D felony
operating a vehicle with an alcohol concentration equivalent
(ACE) of .08% or more with a prior conviction within the last
five years. Pattison asserts a jury instruction
included a constitutionally impermissible evidentiary
presumption that shifted the burden of proof to him on an
element of the offense.
and Procedural History
On March 3, 2013, around 1:30 a.m., Jonesboro Police Officer
Justin Chambers stopped Pattison's car because the
taillights were not working. Officer Chambers activated his
lights in order to pull Pattison over. Pattison did not stop
until he pulled into his own driveway, approximately five
hundred feet later. Officer Chambers pulled into the driveway
Pattison pulled himself out of the car as Officer Chambers
approached. Pattison did not provide his driver's license
when requested. Officer Chambers noticed Pattison had "
watery eyes and slurred speech and . . . a strong odor of . .
. an alcoholic beverage." (Tr. at 11.) Pattison "
stated that he had had a couple of beers earlier that
night." ( Id. at 12.) Officer Chambers
decided to conduct field sobriety tests.
Pattison claimed that, due to prior injuries, he could
perform only the horizontal gaze nystagmus (" HGN"
) test. Pattison failed that test and a portable breathalyzer
test. After being advised of Indiana's implied consent
law, Pattison agreed to a certified chemical test. That test
indicated his alcohol concentration equivalent ("
ACE" ) was .10%. Pattison was arrested and charged with
operating a vehicle with an ACE of .08% or more.
The jury first found Pattison guilty of Class C misdemeanor
operating a vehicle with an ACE of .08% or more. Then the
State presented evidence of Pattison's prior convictions,
which Pattison did not contest. The jury found Pattison
guilty of Class D felony operating a vehicle with an ACE of
0.08% or more, with a prior conviction within five (5) years.
The trial court pronounced a three-year sentence.
Pattison challenges a jury instruction. " The manner of
instructing a jury is left to the sound discretion of the
trial court." Albores v. State, 987 N.E.2d 98,
99 (Ind.Ct.App. 2013), trans. denied. We reverse
only if the instructions are an abuse of discretion,
Munford v. State, 923 N.E.2d 11, 14 (Ind.Ct.App.
2010), which occurs when an instruction is erroneous and the
instructions, taken as a whole, misstate the law or mislead
the jury. Id.
Pattison did not object at trial to the jury instruction now
challenged. An issue is waived for appellate review unless a
party objected to the alleged error at trial. Lewis v.
State, 34 N.E.3d 240, 246 (Ind. 2015). Despite waiver,
relief remains available under a narrow exception for
fundamental error. Id. A fundamental error is one
that " 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. (quoting Mathews v.
State, 849 N.E.2d 578, 587 (Ind. 2006)).
Pattison asserts the challenged instruction resulted in
fundamental error because it contained a constitutionally
impermissible evidentiary presumption. An evidentiary
presumption is an " assumption that a fact exists
because of the known or proven existence of some other fact
or group of facts." Black's Law Dictionary 1376
(10th ed. 2014). When the law requires one fact to
be assumed based on another fact or other facts, the
presumption created is mandatory. Sturgeon v.
State, 575 N.E.2d 679, 680 n.4 (Ind.Ct.App. 1991).
Mandatory presumptions can be conclusive or rebuttable.
Id. " A conclusive presumption removes the
presumed element from the case once the State has proved the
predicate facts." Id. A rebuttable presumption
" does not remove the presumed element from the
case" but requires the jury to presume it to be true
unless the defendant persuades them otherwise. Id.
As Black's further explains:
Most presumptions are rules of evidence calling for a certain
result in a given case unless the adversely affected party
overcomes it with other evidence. A presumption shifts the
burden of production or persuasion to the opposing party, who
can then attempt to overcome the presumption.
Black's Law Dictionary 1376. Both conclusive and
rebuttable mandatory presumptions " violate the Due
Process Clause if they relieve the State of the burden of
persuasion on an element of a criminal offense."
Sturgeon, 575 N.E.2d at 680. See also
Collins v. State, 567 N.E.2d 798, 801 (Ind. 1991)
(Regarding instruction that informed jury evidence of letter
being mailed was prima facie proof that it was
received, the court held: " Even though the instruction
made the presumption rebuttable, a mandatory rebuttable
presumption is no less unconstitutional." ).
With this background in mind, we turn to the instruction
Pattison challenges. To prove Pattison guilty as charged, the
State had to present evidence he " operate[d] a vehicle
with an alcohol concentration equivalent [ACE] to at least
eight-hundredths (0.08) gram of alcohol . . . per . . . two
hundred ten (210) liters of the person's breath."
Ind. Code § 9-30-5-1. At a trial for such charge,
evidence of the driver's ACE at the time of driving or
within three hours thereof is admissible. ...