Poortenga v. State

99 N.E.3d 691

Heath POORTENGA, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

Court of Appeals Case No. 45A03–1709–CR–2148

Court of Appeals of Indiana.

FILED April 10, 2018

Attorney for Appellant: Lloyd P. Mullen, Mullen & Associates PC, Crown Point, Indiana

Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Katherine Cooper, Deputy Attorney General, Indianapolis, Indiana

Bradford, Judge.

Case Summary

[1] Appellant–Defendant Heath Poortenga was charged with and found guilty of both Class C misdemeanor and Class A misdemeanor operating while intoxicated ("OWI"). Following trial, the trial court dismissed the Class C misdemeanor OWI conviction as a lesser-included offense of the Class A misdemeanor conviction. Poortenga challenges his conviction for Class A misdemeanor OWI on appeal. In challenging his conviction, Poortenga raises multiple issues, one of which we find dispositive. Specifically, we conclude that the trial court abused its discretion in admonishing the jury during defense counsel's closing argument to ignore evidence that Poortenga's alcohol concentrate equivalent ("ACE") was under the legal limit at the time of his arrest. We also conclude that retrial is appropriate on the Class C misdemeanor charge but not the Class A misdemeanor charge. As such, we reverse and remand to the trial court for further proceedings consistent with this opinion.

Facts and Procedural History

[2] At approximately 3:00 a.m. on July 10, 2016, Officer Kevin Fertig of the police division of the Lake County Sheriff's Department was on patrol in the area around 141^st Street in Lake County. While on patrol, Officer Fertig passed a red Chevy Aveo that had a headlight out. Officer Fertig looked in his rearview mirror and noticed that the license plate was not illuminated. In light of these violations, Officer Fertig decided to initiate a traffic stop. Immediately after Officer Fertig activated his emergency lights, Poortenga applied his brakes and began pulling over to the side of the road. However, Poortenga did not immediately stop his vehicle, but rather continued for the equivalent of "another couple of blocks" before stopping. Trial Tr. p. 49.

[3] When Officer Fertig approached Poortenga's vehicle, he observed that Poortenga appeared to have trouble locating his driver's license. He was "speaking very slow" and his "eyes were pretty glossy." Trial Tr. p. 52. Officer Fertig also noticed the smell of alcohol emanating from the vehicle. Poortenga later admitted that throughout the course of the evening, he had "three Jack-and-Cokes" at the Safe House Bar in Crown Point. Trial Tr. p. 55. Poortenga also told Officer Fertig that "I don't usually drink a lot so I might have a low tolerance." Trial Tr. p. 56.

[4] Poortenga complied with Officer Fertig's request that he exit the vehicle and calmly participated in three different field sobriety tests—the Horizontal Gaze Nystagmus test, the walk and turn test, and the one-leg stand test—all of which he failed. Given his observations and Poortenga's inability to successfully complete the field sobriety tests, Officer Fertig formed the opinion that Poortenga was intoxicated. After Officer Fertig read Poortenga the implied consent advisement, Poortenga agreed to submit to a chemical test.

[5] Officer Fertig then handcuffed Poortenga's hands behind his back and placed him in the backseat of his police vehicle. At some point on the way to the jail, Poortenga, who suffers from motion sickness, vomited. Once at the station, another officer administered a chemical breath test. The results of this test indicated that at the time of his arrest, Poortenga had an ACE of 0.069. Poortenga was then placed under arrest.

[6] On July 10, 2016, Appellee–Plaintiff the State of Indiana ("the State") charged Poortenga with Class C misdemeanor OWI and Class A misdemeanor OWI. Poortenga was also alleged to have committed the infraction of operating a vehicle with improper headlights.

[7] A jury trial commenced on June 23, 2017. During both opening statement and closing argument, Poortenga's counsel pointed to the fact that Poortenga tested below the legal limit in support of Poortenga's claim that he was not intoxicated at the time he was stopped by Officer Fertig. The State objected to defense counsel's statements during opening statement, after which the trial court admonished the jury on the nature of opening statements. The State also objected to defense counsel's statements during closing argument, after which the trial court admonished the jury as follows: "Do not put any consideration into a—a .08 that the defense keeps bringing up. That has—That is not part of this case. Do not put any weight into that." Trial Tr. p. 169. The jury subsequently found Poortenga guilty as charged.

[8] On August 21, 2017, the trial court sentenced Poortenga on the Class A misdemeanor conviction to "365 days in the Lake County Jail, all to be suspended; Probation for a period of 12 months; Community Service for 40 hours; Alcohol/Drug Abuse counseling at Court/State approved program; [and] License suspension for 90 days retroactive to date of arrest (time served)[.]" Appellant's App. Vol. II, p. 25. The trial court also dismissed the Class C misdemeanor charge as a lesser-included offense of the Class A misdemeanor conviction. This appeal follows.

Discussion and Decision

I. Admonishment of the Jury

[9] Poortenga contends that the trial court abused its discretion in admonishing the jury.¹ Specifically, Poortenga argues that the trial court abused its discretion by instructing the jury during both the defense's opening statement and closing argument that it should not consider evidence indicating that Poortenga's ACE registered under the legal limit because such evidence was irrelevant to whether he was intoxicated at the time he operated his vehicle.

A. Relevance of Evidence at Issue

[10] "Evidence is relevant when it has ‘any tendency’ to prove or disprove a consequential fact." Snow v. State , 77 N.E.3d 173, 177 (Ind. 2017) (quoting Escamilla v. Shiel Sexton Co., Inc. , 73 N.E.3d 663, 668 (Ind. 2017) ). "This ‘liberal standard for relevancy’ sets a low bar." Id. (quoting Escamilla , 73 N.E.3d at 670 ). "[T]he trial court enjoys ‘wide discretion’ in deciding whether that bar is cleared." Id. (quoting Hicks v. State , 690 N.E.2d 215, 220 (Ind. 1997) ). Relevant evidence is admissible unless any applicable rule or statute provides otherwise. See Ind. Evid. Rule 402.

[11] " ‘Prima facie evidence of intoxication’ includes evidence that at the time of an alleged violation the person had an [ACE of] at least eight-hundredths (0.08) gram of alcohol per ... two hundred ten (210) liters of the person's breath." Ind. Code § 9–13–2–131. Thus, evidence relating to an individual's ACE is certainly relevant to prove intoxication when the individual's ACE is at least 0.08. It would seem unjust to limit relevance of one's ACE to only cases when the individual's ACE is found to be 0.08 or more. Further, we have previously noted that once an individual has consented to a chemical test, he may not then object to the results of the chemical test being used against him. See Temperly v. State , 933 N.E.2d 558, 566 (Ind. Ct. App. 2010). It seems the reverse should also be true that the State may not complain if a defendant who tested below the legal limit attempts to introduce that fact in an effort to discredit the State's claim that he was intoxicated.

[12] For these reasons, we conclude that evidence of an individual's ACE is relevant to the question of whether the individual was intoxicated, regardless of whether the individual's ACE was more or less than 0.08. In reaching this conclusion, however, we do not intend to suggest that a finding that an individual's ACE is under the legal limit of 0.08 per se proves that the individual was not intoxicated. Rather, we merely conclude that such a fact is evidence that may be considered when determining whether an individual was intoxicated.

B. Admonishments Given by the Trial Court

[13] It is undisputed that at the time of his arrest, Poortenga's ACE was 0.069. Having concluded that this evidence was relevant, we turn our attention to the admonishments made by the trial court.

1. Opening Statement

[14] During its opening statement, the State argued that the jury could find Poortenga guilty, despite his ACE being under the legal limit, if it found that the other evidence proved beyond a reasonable doubt that he was intoxicated. In making this statement, the State acknowledged that the jury should find Poortenga not guilty if they found the fact that his ACE was under the legal limit to be more compelling than the other evidence suggesting intoxication. After the State concluded its statement, the defense presented its opening statement. During this statement, defense counsel stated the following: "Ladies and gentlemen, the evidence will show that they took him to the station and he blew 0.069, substantially below the legal limit where you're presumed to be intoxicated in Indiana, that's .08. We've all seen those...." Trial Tr. p. 37. At this point, the State objected and a bench conference was held out of the presence of the jury. At the conclusion of this bench conference, the trial court admonished the jury as follows:

All right. What you're hearing now are opening statements. This is not the law. I will instruct you on what the law is later. Everything you hear now here is opening statements. So don't form any opinions of what the law is at this point. I will instruct you on that later.... Okay, [defense counsel], you can proceed.

Trial Tr. pp. 41–42. Defense counsel was then permitted to continue on with his statement that the State's case was not based on scientific evidence of intoxication, but rather solely on the arresting officer's opinion that Poortenga was intoxicated.

[15] Upon review, we conclude that the trial court's admonishment to the jury regarding the nature of...