FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARK A. RYAN STEVE CARTER
Kokomo, Indiana Attorney General of Indiana
JODI KATHRYN STEIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JAMES D. PERKINS, )
)
Appellant-Defendant, )
)
vs. ) No. 03A01-0401-CR-12
)
STATE OF INDIANA, )
)
Appellee. )
APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT 1
The Honorable Chris D. Monroe, Judge
Cause No. 03D01-0203-FD-302
July 30, 2004
OPINION - FOR PUBLICATION
SULLIVAN, Judge
Following a jury trial, Appellant, James Perkins, was convicted of Operating a Vehicle
While Intoxicated Causing Serious Bodily Injury, a Class D felony.
See footnote Upon appeal,
Perkins presents two issues for our review, (1) whether the trial court erred
in denying Perkins motion to dismiss, and (2) whether the evidence is sufficient
to support his conviction.
We affirm.
The facts most favorable to the conviction reveal that on the afternoon of
April 26, 2000, Perkins pulled his truck out of a gas station, darted
across two lanes of traffic, and then headed east on 25th Street in
Columbus, Indiana. As Perkins approached the intersection of 25th Street and Fairlawn
Drive, he slowed his truck to a near stop. A motorcyclist, Ewing
Dan Estep, was westbound on 25th Street and slowed as he approached the
Fairlawn Drive intersection to observe the truck and what Perkins was intending to
do. After seeing Perkins nearly stop, Mr. Estep then continued through the
intersection. Perkins then gun[ned] it as he turned left across 25th Street,
striking the motorcycle Mr. Estep was riding. Transcript at 320.
Detective Jeffrey WilliamsSee footnote of the Columbus Police Department was dispatched to the scene
of the accident. Upon arriving at the scene, emergency personnel were already
taking care of Mr. Estep. Detective Williams approached the truck he believed
had been involved in the accident and encountered Brandon Smith, who identified Perkins
as the driver of the truck. Detective Williams noticed that Smiths clothing
smelled of burnt marijuana.
Detective Williams then approached Perkins, and upon talking to him, Detective Williams detected
an odor of burnt marijuana on Perkins clothing and on his breath.
Detective Williams also observed that Perkins eyes were glassy and bloodshot and
that his speech was thick. After confirming that Perkins was the driver
of the truck and that he was not injured, Detective Williams decided to
conduct four field sobriety tests upon Perkinsthe horizontal gaze nystagmus test, the finger
count test, the alphabet recital test, and the walk and turn test.
Perkins failed all four tests. Based upon his training and experience, Detective
Williams determined that Perkins was intoxicated at the time of the accident.
After being read Indianas implied consent law and upon Detective Williams request, Perkins
agreed to submit to a chemical test. Detective Williams placed Perkins in
his patrol car and returned to complete his immediate investigation. When inspecting
the truck, Detective Williams detected the odor of burnt marijuana inside the truck.
While en route to the hospital, Perkins informed Detective Williams that he
no longer agreed to submit to the chemical test.
An accident investigator with the Indiana State Police determined that the impact occurred
across the center dividing line, in the westbound lane in which Mr. Estep
was traveling and that the primary cause was Perkins failure to yield to
Mr. Esteps motorcycle. As a result of the accident, Estep suffered a
fractured dislocation of the neck which rendered him a quadriplegic.
On August 15, 2000, the State charged Perkins with Count I, operating a
vehicle while intoxicated, a Class A misdemeanor, Count II, operating a vehicle with
a schedule I or II controlled substance or its metabolite in the body,
a Class C misdemeanor, and Count III, operating a vehicle with .10% or
more blood alcohol content, a Class D felony. The State later filed
an amended information for Count III, charging Perkins with operating a vehicle while
intoxicated causing serious bodily injury, a Class D felony. The State also
added an additional charge, Count IV, operating a vehicle with a schedule I
or II substance in the body causing serious bodily injury, a Class D
felony.
On May 7, 2001, Perkins filed an Affirmed Motion to Dismiss and supporting
memorandum, asserting that the deputy prosecutor was without authority to bring charges against
him because he was appointed by Joseph Koenig, the elected Prosecutor at the
time for Bartholomew County,See footnote whom Perkins alleged was not properly in office as
he had not filed a proper bond pursuant to statute. The trial
court denied Perkins motion at a hearing on May 21, 2001. On
August 31, 2001, Perkins filed a second motion to dismiss and suggestion of
defects concerning Prosecutor Koenigs oath and bond. On September 6, 2001, Perkins
filed a list itemizing the claimed defects in the bond. The trial
court held a hearing on Perkins second motion to dismiss on September 14,
2001, at the conclusion of which the court denied the motion. On
December 10, 2001, Perkins filed a motion for recusal of judge, which the
trial court granted on February 18, 2002. On March 5, 2002, Judge
Monroe of Bartholomew Superior Court 1 assumed jurisdiction over the cause.
On March 20, 2002, Perkins filed a motion to reconsider the denial of
his previous motions to dismiss. The court denied the motion to reconsider
by entry of March 27, 2002. On March 27, 2003, Perkins filed
a motion to disqualify William Nash, the current elected Prosecutor for Bartholomew County.See footnote
Perkins filed a suggestion of defects concerning the oaths and bonds of
both Prosecutor Nash and Judge Monroe on April 3, 2003. The court
denied the motions by entry of April 4, 2003.See footnote
On April 14, 2003, the State moved to dismiss Counts I, II, and
IV, and the cause proceeded to trial the following day on Count III.
At the conclusion of the evidence, the jury found Perkins guilty of
operating a vehicle while intoxicated causing serious bodily injury, a Class D felony.
The trial court then sentenced Perkins to two years imprisonment, with one
year suspended to be served on probation.
Upon appeal, Perkins argues that the trial court erred in denying his motion
to dismiss the charges against him. A criminal defendant has the burden
of proving by a preponderance of the evidence every fact essential to support
a motion to dismiss an information. Ind. Code § 35-34-1-8(f) (Burns Code
Ed. Repl. 1998);
Lewis v. State, 755 N.E.2d 1116, 1121 (Ind. Ct. App.
2001). Because a defendant is appealing from a negative judgment, we will
reverse the trial courts ruling only if the evidence is without conflict and
leads inescapably to the conclusion that dismissal was proper. Lewis, 755 N.E.2d
at 1121.
Indiana Code § 35-34-1-4(a) (Burns Code Ed. Repl. 1998) provides the grounds upon
which a court may dismiss an information, including [a]ny . . . ground
that is a basis for dismissal as a matter of law. Here,
Perkins moved to dismiss the information against him by claiming a violation of
Indiana Code 5-4-1. Specifically, Perkins claimed that Prosecutor Koenig was not lawfully
in office when the instant charges were filed because Prosecutor Koenigs bond did
not comply with the requirements of the applicable statutes. Thus, Perkins argued
that the deputy prosecutor, who was appointed by Prosecutor Koenig, was without authority
to file charges against Perkins, and therefore, the cause should have been dismissed.
Indiana Code § 33-14-1-2 (Burns Code Ed. Repl. 1998) provides that [e]very person
elected to the office of prosecuting attorney, before entering upon the duties of
his office, shall execute a bond in the manner prescribed by IC 5-4-1.
Indiana Code § 5-4-1-20 (Burns Code Ed. Repl. 2001) sets forth the
bond requirements for prosecuting attorneys as follows:
(a) A person elected to the office of prosecuting attorney shall execute
an individual surety bond for the faithful performance of the duties of the
office. The amount of the bond must be at least eight thousand
five hundred dollars ($8,500).
(b) A person elected to the office of prosecuting attorney may not
take office until that person has filed a bond:
(1) in the office of the county recorder of the county in which
the person resides; and
(2) within ten (10) days after the bond is issued.
(c) The cost of the bond shall be paid by the county.
For multiple county judicial circuits, the cost shall be paid by each
county in the judicial circuit in the manner provided by IC 33-13-12-4.
(d) A bond must be:
(1) executed by the person elected prosecuting attorney and one (1) or more
freehold sureties; and
(2) payable to the state as provided in section 10 of this chapter.
(e) A bond is not void on first recovery, and suits may be
brought on the bond until the penalty is exhausted.
(f) If a bond has been legally certified, any of the following have
the same effect in evidence as the bond:
(1) A copy of the bond.
(2) A record of the bond.
(3) A copy of a record of the bond.
(g) The county recorder of the county in which the person elected prosecuting
attorney resides shall record the bond in an official bond register.
Indiana Code § 5-4-1-9 (Burns Code Ed. Repl. 2001) also provides that [a]n
officer required to give an official bond shall give the bond before the
commencement of his term of office. If the officer fails to give
the bond before that time, the officer may not take office. Perkins
asserts that a reasonable interpretation of the above statutes is that the elected
prosecutor is required to comply with the bond provisions at the beginning of
each term.
There is nothing in I.C. § 33-14-1-2, I.C. § 5-4-1-9, or I.C. §
5-4-1-20 which requires a prosecuting attorney to file a new bond at the
beginning of each term, only that a bond be filed before the commencement
of his term of office. Here, Prosecutor Koenig executed the required bond
at the beginning of his first term and such bond was effective for
a term of four years beginning January 1, 1979 and ending on December
31, 1982. Prior to the beginning of his second term as the
Bartholomew County Prosecutor, Koenig filed a second bond on December 20, 1982 which
provided that it was effective January 1, 1983 and until his successor is
elected and qualified. States Exhibit 2. The second bond remained in
effect for each successive term Koenig was elected. Prosecutor Koenig thus complied
with the statutes requirements that he file a bond prior to the commencement
of his term of office to ensure his faithful performance of the duties
of the office of prosecuting attorney.
Perkins asserts that even if the statute did not require Koenig to file
a separate bond for each elected term, that the bond on file is
defective in that it does not contain Koenigs signature or indicate that it
was executed by Koenig. See I.C. § 5-4-1-20(d)(1); Ind. Code § 5-4-1-13
(Burns Code Ed. Repl. 2001) (providing that [a]ll official bonds required by statue
shall be executed by the principal and one (1) or more freehold sureties
. . . .). Perkins also asserts that the bond is defective
in that State Farm Fire and Casualty Co., the named surety, is not
a freehold surety as required by statute. See I.C. § 5-4-1-20(d)(1).
Indiana Code § 5-4-1-12 (Burns Code Ed. Repl. 2001) provides that No official
bond shall be void because of defects in form or substance or in
the approval and filing thereof. That statute continues that upon the suggestion
of such defects, such bond shall be obligatory as if properly executed, filed
and approved. Id. Thus, even if Perkins alleged defects as to
Prosecutor Koenigs bond are true, such defects do not defeat Koenigs authority as
the elected prosecutor of Bartholomew County. Further, Perkins has cited no authority
which suggests that defects in a prosecuting attorneys bond strip the prosecutor of
his authority to hold that office and execute his or her duties.
We therefore conclude that the trial court did not err in denying Perkins
motion to dismiss.
Perkins also contends that the evidence was insufficient to support his conviction, asserting
that the State failed to prove that he was intoxicated. When reviewing
a claim of insufficient evidence, we neither reweigh evidence nor judge the credibility
of witnesses. Lycan v. State, 671 N.E.2d 447, 456 (Ind. Ct. App.
1996). We consider only the evidence which is favorable to the judgment
along with the reasonable inferences to be drawn therefrom to determine whether there
was sufficient evidence of probative value to support a conviction. Id.
We will affirm the conviction if there is substantial evidence of probative value
from which a reasonable trier of fact could have drawn the conclusion that
the defendant was guilty of the crime charged beyond a reasonable doubt.
VanMatre v. State, 714 N.E.2d 655, 658 (Ind. Ct. App. 1999).
Indiana Code § 9-30-5-4 provides, in pertinent part, A person who causes serious
bodily injury to another person when operating a motor vehicle . . .
while intoxicated commits a Class D felony. To prove that Perkins was
intoxicated, the State was required to present evidence from which the jury could
have concluded beyond a reasonable doubt that Perkins was:
under the influence of: (1) alcohol; (2) a controlled substance (as
defined in IC 35-48-1); (3) a drug other than alcohol or a controlled
substance; or (4) a combination of alcohol, controlled substances, or drugs; so that
there is an impaired condition of thought and action and the loss of
normal control of a persons faculties to an extent that endangers a person.
Ind. Code § 9-13-2-86 (Burns Code Ed. Repl. 1997).
Proof of intoxication may be established by showing impairment. Ballinger v. State,
717 N.E.2d 939, 943 (Ind. Ct. App. 1999). Evidence of the following
can establish impairment: impaired attention and reflexes, watery and bloodshot eyes, odor of
marijuana upon ones breath, and failure of field sobriety tests. See id.
At trial, Detective Williams testified about his training and experience as a police
officer with regard to determining whether an individual is intoxicated. Detective Williams
testified that he detected the odor of burnt marijuana on Perkins clothing and
breath and inside the passenger compartment of the truck Perkins had been driving.
Detective Williams also noted that Perkins eyes were glassy and bloodshot and
that his speech was thick, all signs which Detective Williams associated with someone
under the effects of marijuana. He further observed that Perkins lacked sequential
thinking and that he had to concentrate to understand his questions.
Detective Williams also testified as to the purpose of field sobriety tests and
explained in detail how each test is administered and what a police officer
looks for as indicators of intoxication. Detective Williams further testified that he
explained and demonstrated to Perkins how each test was to be performed.
He then described in detail for the jury how Perkins performed on each
test, explaining that Perkins performance indicated that his attention was divided and his
focus was lessened. Specifically, Detective Williams testified that the horizontal gaze nystagmus
test revealed that Perkins was unable to move his eyes in a smooth
manner and that his eyes were twitching; on the finger count test, Perkins
did not follow instructions to hold his hand up and failed to count
back from four to one as instructed; when asked to recite a portion
of the alphabet, Perkins sang the alphabet in a childish, joyful manner, and
did not stop at the letter Q as instructed; and finally, on the
walk and turn test, Perkins did not remain in position during instructions, turn
around as instructed and demonstrated, and had to ask for clarification on how
to complete the test. Based upon his performance, Detective Williams concluded that
Perkins failed each of the four tests. Detective Williams testified that his
training and experience, the smell of burnt marijuana on Perkins clothes and breath,
and Perkins performance on the four field sobriety tests led him to conclude
that Perkins was intoxicated.
In spite of this evidence, Perkins argues that there was insufficient evidence to
prove that he was intoxicated. Specifically, Perkins discounts the mistakes he made
during the field sobriety tests and thus asserts that the State presented only
minimal evidence as to whether he was impaired. Perkins further asserts that
the fact that Detective Williams smelled burnt marijuana established nothing more than a
mere suggestion that Perkins may have used marijuana. Perkins then directs our
attention to evidence which he asserts proves that he had not been using
marijuana on the day of the accident. In all, Perkins arguments amount
to nothing more than a request for us to reweigh the evidence and
judge the credibility of witnesses, a task we will not undertake upon appeal.
The State presented sufficient evidence from which the jury could have concluded
beyond a reasonable doubt that Perkins was intoxicated at the time of the
accident.
The judgment of the trial court is affirmed.
MAY, J., and VAIDIK, J., concur.
Footnote:
Ind. Code § 9-30-5-4 (a)(3) (Burns Code Ed. Supp. 2003).
Footnote: At the time of the accident, Detective Williams was a patrol
officer and field training officer with the Columbus Police Department.
Footnote: Joseph Koenigs first term as the Bartholomew County Prosecutor began on
January 1, 1979. Koenig served continuously as the Bartholomew County Prosecutor
through his last four-year term which ended December 31, 2002.
Footnote: William Nash was elected as the Bartholomew County Prosecutor in November
2002 for a four-year term beginning January 1, 2003.
Footnote: Upon appeal, Perkins does not challenge the courts denial of his
motion to dismiss challenging the authority of Prosecutor Nash or Judge Monroe.