MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                          FILED
regarded as precedent or cited before any
court except for the purpose of establishing                         Jan 31 2017, 8:36 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General
Indianapolis, Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin Cole,                                             January 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1603-CR-575
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff.                                      Graham, Judge
                                                         Trial Court Cause No.
                                                         49G07-1505-CM-15359



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017        Page 1 of 6
                                                   Summary
[1]   Calvin Cole appeals his conviction for Class A misdemeanor operating a

      vehicle while intoxicated and in a manner that endangers a person.1 We affirm.


                                                      Issue
[2]   Cole raises one issue for our review, which we restate as whether the trial court

      abused its discretion by admitting certain evidence.


                                                      Facts
[3]   On May 3, 2015, Cole went out with his friend, Rochelle Matthews, to

      celebrate Matthews’s birthday. Cole rode his motorcycle to Matthews’s house,

      and Matthews asked Cole to take her for a ride on his motorcycle. Matthews

      declined to wear the helmet Cole offered her; she rode on the back of the

      motorcycle and held on to Cole’s waist. The two stopped at a bar for about two

      hours, where Cole drank Hennessy cognac. After Cole and Matthews left the

      bar, they stopped at a motorcycle club for about thirty minutes.


[4]   Cole and Matthews left the club to return to Matthews’s house. Matthews

      again rode the motorcycle, without a helmet, holding onto Cole’s waist.

      Shortly after Cole turned into Matthews’s neighborhood, he hit a pothole, and

      Matthews fell off the back of the motorcycle.




      1
        Cole was also convicted of Class A misdemeanor operating a vehicle with a blood alcohol content above
      .15. See Ind. Code § 9-30-5-1(b).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017         Page 2 of 6
[5]   A neighbor called 911 and reported hearing a motorcycle “slam onto the

      ground” and said the motorcycle was laying on the ground running, but there

      was no one on it. Ex. 1. The neighbor described the incident as a crash and

      said it was loud. Officers from the Indianapolis Metropolitan Police

      Department responded to the call and reported Cole appeared to be intoxicated.

      Cole agreed to take a breath test, and his blood alcohol content was .185. Cole

      testified “no,” he was “not at all” drunk. Tr. p. 226.


[6]   On May 4, 2015, the State charged Cole with two Class A misdemeanors—

      operating a vehicle with a blood alcohol content about .15 and operating a

      vehicle while intoxicated in a manner that endangers a person. A jury found

      Cole guilty of both counts, and the trial court sentenced him to 365 days of

      incarceration with 335 days suspended to probation. Cole now appeals his

      conviction for operating a vehicle while intoxicated in a manner that endangers

      a person, but not his conviction for operating a vehicle with a blood alcohol

      content about .15.


                                                  Analysis
[7]   Cole contends the trial court abused its discretion by admitting into evidence a

      recording of the 911 call. He argues the recording contained testimonial

      hearsay, that he did not have an opportunity to cross-examine the neighbor

      who made the call as required by the Sixth Amendment to the United States

      Constitution, and that the jury may have relied on the neighbor’s statements to

      support the endangerment element of his conviction.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017   Page 3 of 6
[8]    At the outset, we note that the State argues Cole waived his Sixth Amendment

       argument because, during trial, he failed to object on the constitutional grounds

       he raises on appeal. At trial, Cole argued that the State did not lay a proper

       foundation for the audio recording. He also, however, stated, “The CD that

       they hope to admit contains testimonial hearsay, your Honor.” Tr. p. 93. We

       conclude Cole properly preserved this issue.


[9]    We review a trial court’s ruling regarding the admission or exclusion of

       evidence for an abuse of discretion. Bishop v. State, 40 N.E.3d 935, 943 (Ind. Ct.

       App. 2015), trans. denied. “We reverse only where the decision is clearly against

       the logic and effect of the facts and circumstances.” Id. “Even if the trial

       court’s decision was an abuse of discretion, we will not reverse if the admission

       constituted harmless error.” Id. When an error in the admission of evidence

       involves a constitutional right, we will conclude it is harmless only if it is

       harmless beyond a reasonable doubt. Mack v. State, 23 N.E.3d 742, 756 (Ind.

       Ct. App. 2014), trans. denied. “Our analysis for such questions requires this

       court to assess ‘whether there is a reasonable possibility that the evidence

       complained of might have contributed to the conviction.’” Id. (quoting

       Chapman v. California, 87 S. Ct. 824, 827, 386 U.S. 18, 23 (1967)).


[10]   Here, we need not determine whether the trial court erred in admitting the

       audio recording at issue. Instead, we conclude that, even if the recording

       contained impermissible testimonial hearsay, its admission was harmless

       beyond a reasonable doubt because the jury would have found Cole guilty even

       without the evidence at issue. See Mack, 23 N.E.3d at 756.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017   Page 4 of 6
[11]   To support Cole’s conviction for operating a vehicle while intoxicated in a

       manner that endangers a person, the State was required to prove Cole operated

       a vehicle while intoxicated and that he did so in a manner that endangered a

       person. See Outlaw v. State, 929 N.E.2d 196 (Ind. 2010) (adopting and

       incorporating by reference Outlaw v. State, 918 N.E.2d 379 (Ind. Ct. App.

       2009)). “Intoxicated” means one is under the influence of alcohol “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. “Prima facie evidence

       of intoxication includes evidence that at the time of an alleged violation the

       person had at least a .08 BAC.” Temperly v. State, 933 N.E.2d 558, 566 (Ind. Ct.

       App. 2010) (citing I.C. § 9-13-2-131) (quotations omitted), trans. denied, cert

       denied.


[12]   “The element of endangerment can be established by evidence showing that the

       defendant’s condition or operating manner could have endangered any person,

       including the public, the police, or the defendant.” Vanderlinden v. State, 918

       N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied. “Endangerment does not

       require that a person other than the defendant be in the path of the defendant’s

       vehicle or in the same area to obtain a conviction.” Id. at 644-45. “By

       definition the statute requires more than intoxication to prove endangerment.”

       Id. at 645.


[13]   Cole does not seem to contend the State presented insufficient evidence to

       establish he was intoxicated. He notes the testimony of two police officers and

       the results of the breath test established he was impaired. See Appellant’s Br. p.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017   Page 5 of 6
       11. He does, however, argue that “the State’s main evidence of endangerment

       came from the 911 call” and that, absent that evidence, “the jury may have

       concluded that driving 10 mph and hitting a pothole in the dark did not

       constitute endangerment.” Id. at 12.


[14]   We conclude that, even excluding the recording of the 911 call from

       consideration, the State’s evidence was sufficient to prove endangerment. Cole

       himself testified that Matthews fell off his motorcycle while he was driving it.

       The fact that Cole was driving in such a manner that Matthews was unable to

       remain on the motorcycle is sufficient evidence from which the jury could

       reasonably have inferred Cole operated his motorcycle in a manner that could

       have, and did, endanger a person.


                                                 Conclusion
[15]   Any error in the admission of the recording of the 911 call was harmless beyond

       a reasonable doubt. The State’s evidence was sufficient to support Cole’s

       conviction for operating a vehicle while intoxicated in a manner that endangers

       a person. We affirm.


[16]   Affirmed.


       Riley, J., and Bailey, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1603-CR-575 | January 31, 2017   Page 6 of 6