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Weekly v. State

Court of Appeals of Indiana

June 29, 2018

Alonzo R. Weekly, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

          Appeal from the Elkhart Superior Court The Honorable Gretchen S. Lund, Judge The Honorable Kristine A. Osterday, Magistrate Trial Court Cause No. 20D04-1703-F6-392

          ATTORNEY FOR APPELLANT Donald R. Shuler Barkes, Kolbus, Rife & Shuler, LLP Goshen, Indiana

          ATTORNEYS FOR APPELLEE Curtis T. Hill, Jr. Attorney General of Indiana Monika Prekopa Talbot Supervising Deputy Attorney General Indianapolis, Indiana

          NAJAM, JUDGE.

         Statement of the Case '

         [¶1] Alonzo R. Weekly appeals his convictions and sentence following a jury trial for operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and a habitual vehicular substance offender ("HVSO") enhancement. He presents two issues for our review:

1. Whether the trial court abused its discretion when it admitted into evidence the result of a chemical breath test and the testimony of two officers.
2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

         [¶2] We affirm in part, reverse in part, and remand with instructions.

         Facts and Procedural History

         [¶3] At 12:41 a.m. on March 11, 2017, Officer Kevin Corona and Corporal Lee Brooks with the Elkhart Police Department observed Weekly driving a motorized scooter through an intersection "at what appeared to be a high rate of speed." Tr. Vol. II at 85. The officers, who were in a marked police vehicle, began to follow Weekly, and they witnessed Weekly fail to stop at two stop signs. Accordingly, the officers initiated a traffic stop.

         [¶4] When Officer Corona and Corporal Brooks approached Weekly, they both observed that he had slurred speech and bloodshot, glassy eyes. They could also smell an odor of alcohol on Weekly's breath. Based on those observations, Officer Corona conducted three standardized field sobriety tests on Weekly. Weekly failed the first test, and he did not complete the other two tests. Officer Corona then asked Weekly to submit to a certified chemical breath test at the police station. Weekly agreed to take the test. At that point, the officers transported Weekly to the police station, and Corporal Brooks performed the certified breath test. The results of the breath test showed that Weekly had an alcohol concentration of 0.207 gram of alcohol per 210 liters of breath.

         [¶5] The State charged Weekly with one count of operating a vehicle while intoxicated in a manner that endangers a person, as a Class A misdemeanor (Count I), and one count of operating a vehicle with an alcohol concentration equivalent to at least 0.15 gram of alcohol per 210 liters of breath, as a Class A misdemeanor (Count II). The State later added one count of operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and alleged that Weekly was an HVSO. Prior to trial, Weekly filed a motion to suppress evidence alleging that the evidence against him was obtained illegally because "the stop was unjustified without reasonable suspicion or probable cause." Appellant's App. Vol. II at 34. The trial court denied that motion after a hearing.

         [¶6] The trial court held a bifurcated jury trial on October 23, 2017. During the first phase of the trial, both Officer Corona and Corporal Brooks testified to their observations of Weekly during the traffic stop, including the results of the field sobriety tests, without objection from Weekly. The State also presented as evidence, without objection, the video recording of the traffic stop.[1] And the State presented the results of Weekly's chemical breath test, which the trial court admitted over Weekly's objection.

         [¶7] At the conclusion of the first phase of his trial, the jury found Weekly guilty of Counts I and II. In phase two of the trial, Weekly pleaded guilty to operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony, and he admitted to being an HVSO. The trial court merged the guilty verdicts for Counts I and II and entered judgment of conviction on the Level 6 felony and the HVSO enhancement. The trial court sentenced Weekly to two years with the Department of Correction for operating a vehicle while intoxicated with a previous conviction, as a Level 6 felony. And, for the HVSO enhancement, the trial court imposed "an additional ...


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