MILLER v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Kala Miller appeals her conviction for operating a vehicle while intoxicated endangering a person less than eighteen years, as a Level 6 felony.¹ We affirm.

Issues

[2] Miller raises four issues, which we revise and restate as the following two issues:

1. Whether the court abused its discretion when it admitted certain evidence.

2. Whether the State presented sufficient evidence to support her conviction.

Facts and Procedural History

[3] On the evening of April 1, 2024, Marlisa Oatts was getting money out of an ATM at a gas station at the intersection of 38th Street and Mitthoefer Road in Indianapolis. While she was at the ATM, another female came into the gas station and said: “That girl just hit that car.” Tr. at 27. Oatts looked out the door and observed that her car had been hit. When her ATM transaction was complete, Oatts exited the gas station and saw Miller get in Miller's car and try to “pull forward off [Oatts’] car.” Id. at 28. Oatts approached Miller and tried to speak with her, but Miller was “screaming,” “yelling,” and acting “belligerent.” Id. at 30. Oatts thought Miller “might be drunk” because Miller “kind of slurred” her speech and was “[j]ust not making sense[.]” Id. at 30, 31. Oatts also heard the sound of a baby crying coming from Miller's car. Miller got into her car and drove to a nearby liquor store.

[4] Oatts called the police and then almost immediately “flagged down” Officer Cody Elder with the Indianapolis Metropolitan Police Department. Id. at 44. Officer Elder parked his car behind Miller's and approached her. Officer Elder smelled “the odor of alcohol coming off of her.” Id. at 61. Officer Elder then stated: “Somebody said that you were driving this car and that you hit that car down there. If you did, it's fine, but I need to know.” Ex. A. at 00:30-00:38.² She stated: “Yeah, I did, and I talked to her about it.” Id. at 00:39-00:41. Officer Elder asked Miller if she had had anything to drink, and she responded: “No, I haven't.” Id. at 00:47-00:48. He again asked: “Nothing to drink at all,” and she said “no.” Id. at 00:59-01:00. He then said, “I need to know now if you had anything to drink tonight. Now would be the time to tell me because if I get a DUI car down here and they give you a test and you fail, that will not be good.” Id. at 01:21-01:28. She then said that she had had “one beer.” Id. at 01:29. Officer Elder asked Miller to stand in front of his car, and he said, “don't move.” Id. at 01:57.

[5] Officer Elder performed three field sobriety tests on Miller. Miller failed the horizontal gaze nystagmus (“HGN”) and the walk-and-turn tests, but she passed the one-leg-stand test. Miller then agreed to take a portable breath test, which showed a result of 0.15. Officer Elder read Miller Indiana's implied consent advisement, placed her in handcuffs, and transported her to a hospital for a blood draw. Another officer arrived, removed the baby from the car, and stayed with the baby until a family member arrived.

[6] Upon arriving at the hospital, Officer Curtis Johnson read Miller her Miranda rights and asked for her consent to submit to the blood test. There “appeared to be some confusion on [Miller's] part [about] the nature of the consent and how it would be provided[,]” so Officer Johnson “didn't feel comfortable taking her verbal consent[.]” Tr. at 93. Officer Johnson then applied for and obtained a warrant for the blood draw. The results of the test revealed that Miller had an alcohol concentration equivalent (“ACE”) of 0.154 gram of alcohol per one hundred milliliters of blood.

[7] The State charged Miller with neglect of a dependent, as a Level 6 felony (Count 1);³ operating a vehicle with an ACE of at least fifteen-hundredths gram of alcohol per one hundred milliliters of the person's blood with a passenger less than eighteen years of age, as a Level 6 felony (Count 2);⁴ operating a vehicle while intoxicated and endangering a person less than eighteen years, as a Level 6 felony (Count 3); operating a vehicle while intoxicated and endangering a person, as a Class A misdemeanor (Count 4);⁵ operating a vehicle with an ACE of at least fifteen-hundredths gram of alcohol per one hundred milliliters of the person's blood, as a Class A misdemeanor (Count 5);⁶ operating a vehicle while intoxicated, as a Class C misdemeanor (Count 6);⁷ and leaving the scene of an accident, as a Class B misdemeanor (Count 7).⁸

[8] The trial court held a bench trial on September 18. During Officer Elder's testimony, he testified that he had walked up to Miller and asked if she had gotten into an accident, and he testified that she had “said yes.” Id. at 45. At that point, Miller objected and moved to suppress any statements she had made to Officer Elder on the ground that he had violated her Miranda rights by failing to advise her of those rights before questioning her. Officer Elder testified that he had asked Miller questions only in order “to establish if we even have a crime at all.” Id. at 47. He also testified that, at that time, he “was not investigating it as a hit-and-run[.]” Id. at 48. And he testified that he never told her “she wasn't free to leave.” Id. at 49. The court denied Miller's motion, and Officer Elder testified that Miller had admitted to being in a crash and that she had consumed “a beer.” Id. at 63.

[9] Officer Elder then began to testify about the field sobriety tests. When he testified about the HGN, Miller objected and argued that the State had not laid a proper foundation for that testimony. Specifically, Miller elicited testimony from Officer Elder that, pursuant to the National Highway Traffic Safety Administration's manual, an object must be held at a maximum distance for “at least four seconds,” and that he had held his pen for three seconds. Id. at 69. The court overruled the objection, finding that “whether or not he followed the rules and regulation is something as far as the weight of evidence, not the admissibility.” Id. at 71.

[10] And when Officer Elder testified that he read Miller Indiana's implied consent advisement, Miller objected on the ground that Officer Elder had lacked probable cause to read that advisement, and Miller moved to suppress the State's reading of the advisement “and anything that came after[.]” Id. at 75. The court denied the motion. Officer Elder then testified that he read the advisement and transported Miller to the hospital for a blood draw. The State then had admitted as evidence, without objection, the testimony of a forensic nurse who performed the blood draw; Officer Johnson, who observed the blood draw and transported the evidence for testing; and the forensic scientist who testified that the results showed an ACE of 0.154.

[11] Following the trial, the court found Miller guilty on all counts. The court then merged Counts 1, 2, 4, 5, and 6 with Count 3 and vacated those convictions such that only the convictions for Counts 3 and 7 remained. The court then sentenced Miller to 910 days on Count 3, with 730 days executed and 180 days suspended to probation, and to a consecutive term of 180 days on Count 7, all suspended to probation. This appeal ensued.

Discussion and Decision

Issue One: Admission of Evidence

[12] Miller first contends that the court abused its discretion when it admitted certain evidence. As our Supreme Court has stated:

Generally, a trial court's ruling on the admission of evidence is accorded “a great deal of deference” on appeal. Tynes v. State, 650 N.E.2d 685, 687 (Ind. 1995). “Because the trial court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion” and only reverse “if a ruling is ‘clearly against the logic and effect of the facts and circumstances and the error affects a party's substantial rights.’ ” Carpenter v. State, 18 N.E.3d 998, 1001 (Ind. 2014) (quoting Clark v. State, 994 N.E.2d 252, 260 (Ind. 2013)).

Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015).

[13] On this issue, we first address Miller's contention that the court abused its discretion when it admitted the results of her blood test because Officer Miller lacked probable cause to believe that she was intoxicated. In particular, Miller contends that she passed one field sobriety test and the results of one were “equivocal,” and that “there was no evidence that [she] had impaired attention or reflexes, or watery or bloodshot eyes.” Appellant's Br. at 20. Thus, she maintains that “there was a lack of probable cause that [she] was intoxicated to empower police to invoke the Implied Consent Law and take her blood” and that, as a result, “the chemical test involving her blood should have been suppressed.” Id.

[14] However, it is well settled that a contemporaneous objection at the time the evidence is introduced at trial is required to preserve the issue for appeal. Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010); see also Jackson v. State, 735 N.E.2d 1146, 1152 (Ind. 2000) (“The failure to make a contemporaneous objection to the admission of evidence at trial results in waiver of the error on appeal.”). “A contemporaneous objection affords the trial court the opportunity to make a final ruling on the matter in the context in which the evidence is introduced.” Gibson v. State, 111 N.E.3d 247, 254 (Ind. Ct. App. 2018), trans. denied. Moreover, “to preserve a challenge to the admission of evidence, the defendant must object each time the evidence is offered.” Lundquist v. State, 834 N.E.2d 1061, 1067 (Ind. Ct. App. 2005).

[15] Here, when Officer Elder began to testify about his reading of the implied consent advisement, Miller objected on the ground that Officer Elder did not have probable cause to believe that she was intoxicated, and she moved to suppress “the State's reading of the Implied Consent and anything that came after[.]” Tr. at 75. The court denied that motion. The State then presented the testimony of Jessica Rand, the forensic nurse examiner who performed the blood draw; Officer Johnson, who got the warrant for the blood draw, observed the blood draw, and transported the blood sample for testing; and the forensic scientist who performed the test, all without objection from Miller. And, notably, Miller did not object when the forensic scientist testified that the results of the test demonstrate that Miller had an ACE of 0.154 gram of alcohol per one hundred milliliters of blood. Because Miller did not object to the admission of any of that evidence, she has waived her claim that the court abused its discretion when it admitted the results of the blood test.

[16] Miller next asserts that the court abused its discretion when it admitted her statement to Officer Elder that she had consumed one beer and the results of the HGN test. But we agree with the State that any error in the admission of that evidence was harmless. It is well settled “that a claim of error in the admission or exclusion of evidence will not prevail on appeal ‘unless a substantial right of the party is affected.’ ” Troutner v. State, 951 N.E.2d 603, 612 (Ind. Ct. App. 2011) (quoting Pruitt v. State, 834 N.E.2d 90, 117 (Ind. 2005)), trans. denied. That is, even if the trial court errs in admitting or excluding evidence, this Court will not reverse the defendant's conviction if the error is harmless. Caesar v. State, 139 N.E.3d 289, 292 (Ind. Ct. App. 2020), trans. denied. We “consider the likely impact of the improperly admitted or excluded evidence on a reasonable, average [fact-finder] in light of all the evidence in the case.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), cert. denied. “Ultimately, the error's probable impact is sufficiently minor when—considering the entire record—our confidence in the outcome is not undermined.” Id.

[17] Here, Oatts testified that she witnessed Miller drive her car, that Miller crashed her car into Oatts’ vehicle, and that she believed that Miller was intoxicated based on her “belligerent” behavior and “slurred” speech. Tr. at 30, 31. In addition, Officer Elder testified that Miller had “the odor of alcohol coming off of her,” and that she failed the walk-and-turn test. Id. at 61. And, most notably, the forensic scientist testified that Miller had an ACE of 0.154. See id. at 103.

[18] Based on that evidence, we can say with confidence that the probable impact of Officer Elder's testimony that Miller had admitted to consuming one beer and that she failed the HGN test was sufficiently minor so as to not affect Miller's substantial rights. Thus, any error in the admission of that evidence was harmless.

Issue Two: Sufficiency of the Evidence

[19] Miller next contends that the State failed to present sufficient evidence to support her conviction for Count 3.⁹ Our standard of review on a claim of insufficient evidence is well settled:

For a sufficiency of the evidence claim, we look only at the probative evidence and reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess the credibility of witnesses or reweigh the evidence. Id. We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Id.

Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

[20] To support Miller's conviction, the State was required to prove that she had operated a vehicle while intoxicated in a manner that endangered a person and that she had at least one passenger who was less than eighteen years of age. See Ind. Code §§ 9-30-5-2(b) and 9-30-5-3(a)(2). On this issue, Miller contends that “[w]ithout the inadmissible evidence, there was insufficient evidence to sustain [her] convictions for Counts 1 through 6.” Appellant's Br. at 21. She maintains that, had the trial court “properly excluded from evidence [her] statement that she had had one beer that evening, the flawed HGN results, and the blood test results, there would have been no evidence that [she] was intoxicated[.]” Id. at 21-22.

[21] However, as discussed above, Miller has waived any claim that the trial court abused its discretion when it admitted the results of the blood test for failing to raise a contemporaneous objection. And Oatts’ testimony that she had seen Miller operate her vehicle and that Miller appeared intoxicated; Officer Elder's testimony that he smelled the odor of alcohol coming from Miller and that she had failed one of the field sobriety tests; and the results of the blood test, which showed an ACE of 0.154, all support a reasonable inference that Miller had operated a vehicle while intoxicated in a manner that endangered a person and that she had at least one passenger who was less than eighteen years of age.¹⁰ As such, even if we were to ignore the challenged evidence, the State presented sufficient evidence to support her conviction.

Conclusion

[22] The trial court did not abuse its discretion when it admitted evidence, and the State presented sufficient evidence to support Miller's conviction. We therefore affirm her conviction.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code §§ 9-30-5-2(b), 9-30-5-3(a)(2).

2.   There are two videos contained on Exhibit A, but we only cite to one: 04_01_2024_20_25_32_Cody_Elder. For ease of reference, we will cite to this video as “Ex. A.”

3.   I.C. § 35-46-1-4(a)(1).

4.   I.C. §§ 9-30-5-1(b)(1); 9-30-5-3(a)(2).

5.   I.C. § 9-30-5-2(b).

6.   I.C. § 9-30-5-1(b).

7.   I.C. § 9-30-5-2(a).

8.   I.C. § 9-26-1-1.1(b).

9.   Miller does not challenge her conviction for Count 7.

10.   Miller does not dispute that she had a child in the car.

Bailey, Judge.

Vaidik, J., and DeBoer, J., concur.