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Pattison v. State

Court of Appeals of Indiana

December 4, 2015

Dannie Carl Pattison, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

          Appeal from the Grant Superior Court. The Honorable Warren Haas, Judge. Trial Court Cause No. 27D03-1303-FD-110.

         ATTORNEY FOR APPELLANT: Jerry T. Drook, Marion, Indiana.

         ATTORNEYS FOR APPELLEE: Gregory F. Zoeller, Attorney General of Indiana; Larry D. Allen, Deputy Attorney General, Indianapolis, Indiana.

         May, Judge. Robb, J., and Mathias, J., concur.


         May, Judge.

         [¶1] 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.[1] 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.

         [¶2] We reverse.

         Facts and Procedural History

         [¶3] 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 behind Pattison.

         [¶4] 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.

         [¶5] 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.

         [¶6] 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.

         Discussion and Decision

         [¶7] 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.

         [¶8] 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)).

         [¶9] 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.[2] 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.

         [¶10] 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.

         [¶11] 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." ).

         [¶12] 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. ...

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