RAY v. STATE (2025)

MEMORANDUM DECISION

Case Summary

[1] Craig Steven Ray appeals his conviction for operating a vehicle while intoxicated with a prior conviction, as a Level 5 felony, and his corresponding sentence. We affirm and remand with instructions.

Issues

[2] Ray raises two issues for our review, namely:

1. Whether the trial court abused its discretion when it admitted the results of a blood test as evidence.

2. Whether his sentence is inappropriate in light of the nature of the offense and his character.

Facts and Procedural History

[3] On July 4, 2022, Sergeant Matthew Liddle with the Warrick County Sheriff's Office was “patrolling” when he came across a black car “pulled partial[ly] into the intersection.” Tr. Vol. 2 at 222. Sergeant Liddle noticed that the driver, Ray, was “slumped over” in his seat with his “head down.” Id. Sergeant Liddle also observed that Ray's windshield wipers were on even though it was a “bright sunny” day. Tr. Vol. 3 at 54. Sergeant Liddle pulled his vehicle in front of Ray's, exited, and approached Ray's car. When Sergeant Liddle knocked on the window, Ray was startled, and his car, which was in drive, “rolled forward” and “crashed into” Sergeant Liddle's vehicle. Id. at 52. When Sergeant Liddle informed Ray that he had hit Sergeant Liddle's vehicle, Ray “seemed surprised[.]” Id. at 52.

[4] Sergeant Liddle had to ask Ray several times to both shut off and exit his vehicle. When he ultimately complied, Ray “stumbled” getting out of the car. Id. at 34. Sergeant Liddle administered a portable breath test and a mobile drug test, which were both negative. Sergeant Liddle then administered two field sobriety tests, and Ray failed both the horizontal gaze nystagmus test and the one leg stand test. Sergeant Liddle then called for a paramedic to perform a blood draw on Ray in order to test Ray's blood. The results of that test demonstrated that Ray had fentanyl in his system.

[5] The State charged Ray with operating a vehicle while intoxicated with a prior conviction, as a Level 5 felony (Count 1); operating a vehicle while intoxicated in a manner that endangers a person, as a Class A misdemeanor (Count 2), and operating a vehicle while intoxicated, as a Class C misdemeanor (Count 3). Thereafter, the trial court held a multi-day, bifurcated jury trial on Ray's charges. During the first phase of the trial, Sergeant Liddle testified to the events of July 4, 2022.

[6] In addition, the State called as a witness Ashley White, the forensic scientist with the Indiana Department of Toxicology who had run the confirmation test to show that Ray had fentanyl in his blood. The State then moved to admit the results of that test as evidence. Ray objected and asserted that the State had not shown the proper chain of custody such that the test results lacked an adequate foundation. The court overruled his objection.

[7] At the conclusion of the first phase, the jury found Ray guilty of Count 3 but could not reach a decision on Count 2.¹ Then, in the second phase, Ray admitted that he had a prior conviction. The trial court entered judgment of conviction on Count 1 and Count 3. Following a hearing, the court “merge[d]” Counts 1 and 3 “for sentencing” and sentenced Ray to six years in the Department of Correction. Appellant's App. Vol. 2 at 142. This appeal ensued.

Discussion and Decision

Merger

[8] Initially, we note that the trial court entered judgment of conviction on both Count 1, operating a vehicle while intoxicated with a prior conviction, and Count 3, operating a vehicle while intoxicated. Then, at sentencing, the court “merged” the two convictions, presumably due to double jeopardy concerns. However, as our Supreme Court has made clear, “[a] double jeopardy violation occurs when a court enters judgment twice for the same offense ‘and cannot be remedied by ․ merger after conviction has been entered.’ ” Hines v. State, 30 N.E.3d 1216, 1221 (Ind. 2015) (quoting Jones v. State, 807 N.E.2d 58, 67 (Ind. Ct. App. 2004), trans. denied). Thus, as this Court has stated time and again, where two convictions violate double jeopardy and the trial court enters judgment of conviction on both, merger at sentencing is insufficient and one of the convictions must be vacated. Kovats v. State, 982 N.E.2d 409, 414-15 (Ind. Ct. App. 2013). We therefore remand with instructions for the court to vacate Ray's conviction for operating while intoxicated, as a Class C misdemeanor.

Issue One: Admission of Evidence

[9] Ray first asserts that the trial court abused its discretion when it admitted the results of the blood test as 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). Ray specifically contends that the court abused its discretion when it admitted the blood test results because they lacked a sufficient chain of custody.

[10] However, we need not decide whether the trial court erred when it admitted the test results as evidence. “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.” Caesar v. State, 139 N.E.3d 289, 292 (Ind. Ct. App. 2020) (quotation marks omitted), 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.” Id. “An error in the admission of evidence is harmless where the ‘probable impact’ of the erroneously admitted evidence, ‘in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights’ of the defendant.” Id. (quoting Ind. Appellate Rule 66(A)).

[11] Here, the challenged evidence was a blood test result that showed that Ray had fentanyl in his system. That was the only evidence that showed which substance had caused Ray's impairment. But there was substantial other evidence to demonstrate that he had operated his vehicle while intoxicated.² “Proof of intoxication may be established by showing impairment.” Perkins v. State, 812 N.E.2d 836, 841 (Ind. Ct. App. 2004).

[12] And, here, Sergeant Liddle testified that he saw Ray's car stopped in an intersection and that Ray was “slumped over” in the driver's seat. Tr. Vol. 2 at 222. Sergeant Liddle also observed that Ray had his windshield wipers on despite it being a bright and sunny day. Sergeant Liddle also testified that, after he pulled his vehicle in front of Ray's and woke Ray up, Ray was startled, and his car, which was in drive, “rolled forward” and hit Sergeant Liddle's vehicle. Tr. Vol. 3 at 52. Sergeant Liddle further testified that Ray “seemed surprised” when he learned that he had hit Sergeant Liddle's vehicle. Id. In addition, Ray “stumbled” when he exited his car, and he failed two field sobriety tests. Id. at 34.

[13] In other words, while the challenged evidence disclosed the substance that contributed to his impairment, there was ample evidence to show that he was indeed intoxicated while he operated his vehicle. In light of all of the evidence before the court, we can say with confidence that the probable impact of the blood test results was sufficiently minor so as to not affect Ray's substantial rights. Accordingly, we conclude that any error in the court's admission of that evidence was harmless.

Issue Two: Appropriateness of Sentence

[14] Ray next contends that his sentence is inappropriate in light of the nature of the offense and his character. Indiana Appellate Rule 7(B) provides that “[t]he Court may revise a sentence authorized by statute if, after due consideration of the trial court's decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” This Court has held that “[t]he advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has previously explained that:

The principal role of appellate review should be to attempt to leaven the outliers ․ but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007), decision clarified on reh'g, 875 N.E.2d 218 (Ind. 2007).

Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).

[15] Indiana's flexible sentencing scheme allows trial courts to tailor an appropriate sentence to the circumstances presented, and the trial court's judgment “should receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we regard a sentence as inappropriate at the end of the day turns on “our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other facts that come to light in a given case.” Id. at 1224. The question is not whether another sentence is more appropriate, but rather whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless overcome by compelling evidence portraying in a positive light the nature of the offense (such as accompanied by restraint, regard, and lack of brutality) and the defendant's character (such as substantial virtuous traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).

[16] The sentencing range for a Level 5 felony is between one and six years, with an advisory sentence of three years. See Ind. Code § 35-50-2-6(b). Following a sentencing hearing, the court sentenced Ray to the maximum sentence of six years. On appeal, Ray contends that his sentence is inappropriate in light of the nature of the offense because there was “no testimony of excessive speed, swerving, or other dangerous driving to show that his offense was committed in a matter more egregious than is already inherent” in any operating while intoxicated offense. Appellant's Br. at 23. And, while Ray acknowledges that he has a criminal history, he asserts that his sentence is inappropriate in light of his character because his criminal history “is almost completely related to substance abuse.” Id. at 22.

[17] However, Ray has not met his burden on appeal to show that his sentence is inappropriate. Regarding the nature of the offense, Ray was intoxicated to the point that he stopped his car in the middle of an intersection but kept it in drive and was slumped over in his seat during the day. When Sergeant Liddle woke Ray up, Ray was startled and drove into Sergeant Liddle's vehicle. Ray had his windshield wipers on despite it being a sunny day. He then stumbled getting out of his car and failed two field sobriety tests. We acknowledge that Ray, luckily, did not harm anyone or cause any serious damage. But the potential for harm was great. Ray has not presented compelling evidence portraying the nature of the offense in a positive light. See Stephenson, 29 N.E.3d at 122.

[18] As for his character, Ray has a criminal history that spans more than twenty-five years and includes both federal and state crimes. Indeed, Ray has four prior misdemeanor convictions, including one for operating a vehicle with an alcohol concentration equivalent to at least 0.08 but less than 0.15 gram of alcohol, and one felony conviction in 2015 for operating a vehicle with a schedule I or II controlled substance in his blood causing death for which he received a ten-year sentence that was modified in 2020 to community corrections. The fact that Ray continues to operate a vehicle while intoxicated even after causing someone's death reflects poorly on his character. And, while Ray contends that the majority of his convictions are the result of his substance-abuse issues, there is no indication that Ray has made any effort to resolve those issues. Rather, despite past convictions and leniency granted by the courts, Ray nevertheless operated a vehicle while intoxicated. We cannot say, given Ray's character, that the sentence imposed was inappropriate. We affirm Ray's sentence.

Conclusion

[19] Any error in the admission of the blood test results was harmless. And Ray's sentence is not inappropriate in light of the nature of the offense or his character. We therefore affirm his conviction and sentence but remand with instructions for the court to vacate his conviction on Count 3.

[20] Affirmed and remanded with instructions.

FOOTNOTES

1.   The State subsequently moved to dismiss that count, which the trial court granted.

2.   “Intoxicated” means under the influence of alcohol or any number of substances “so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties.” Ind. Code § 9-13-2-86.

Bailey, Judge.

Tavitas, J., and Kenworthy, J., concur.