ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JON AARSTAD STEVE CARTER
Vanderburgh County Public Defender Agency Attorney General of Indiana
NICOLE M. SCHUSTER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
ANDREW PETER STOLTMANN, )
vs. ) No. 82A01-0302-CR-43
STATE OF INDIANA, )
APPEAL FROM THE VANDERBURGH SUPERIOR COURT
The Honorable Wayne S. Trockman, Judge
Cause No. 82D02-0203-FC-213
August 15, 2003
OPINION - FOR PUBLICATION
BROOK, Chief Judge
Appellant-defendant Andrew Peter Stoltmann appeals his convictions for operating a motor vehicle while
driving privileges are forfeited for life, a Class C felony,
and operating a
vehicle while intoxicated
as a Class C misdemeanor. We affirm.
Stoltmann raises four issues for review, which we consolidate and restate as the
I. Whether sufficient evidence supports his convictions;
II. Whether the trial court properly denied his motions for mistrial; and
III. Whether the trial court properly instructed the jury.
Facts and Procedural History
The facts most favorable to the convictions indicate that on March 2, 2002,
Vanderburgh County Sheriffs Deputy Jeffrey South investigated a vehicle stopped in a parking
lot with its engine running. As Deputy South approached, Stoltmann was standing
behind the vehicle, urinating. Stoltmanns friend Nicholas Roman was sitting in the
front passengers seat. Stoltmann then walked to the rear drivers side door,
entered the vehicle, and exclaimed, oops, wrong door. Tr. at 123.
Deputy South suspected that Stoltmann was intoxicated after observing his glazed eyes, poor
balance, slurred speech, and detecting the odor of alcohol. Stoltmann subsequently admitted
to being intoxicated.
Upon Deputy Souths request for identification, Stoltmann gave a false name and stated
that he did not have a drivers license. Deputy South searched Stoltmann,
located a check stub with his correct name, and determined that his drivers
license had been suspended for life. Deputy South also determined that the
vehicle was not registered to either Stoltmann or Roman. Stoltmann told Deputy
South that he had been at a friends house and that he was
test-driving the vehicle after installing a transmission. Roman also stated that Stoltmann
had been driving the vehicle.
Vanderburgh County Sheriffs Deputy Mark Gilles arrived, and both deputies performed field sobriety
tests on Stoltmann. After failing a horizontal gaze nystagmus test, Stoltmann refused
to take additional field sobriety tests. Deputy South read Stoltmann the Indiana
implied consent law and arrested him. Deputy Gilles transported him to the
Evansville police station, where he refused to take a chemical breath test.
On March 5, 2002, the State charged Stoltmann with operating a motor vehicle
while driving privileges are forfeited for life, a Class C felony, and operating
a vehicle while intoxicated as a Class C misdemeanor. On December 10,
2002, a jury found him guilty as charged. Stoltmann now appeals.
Discussion and Decision
I. Sufficiency of the Evidence
Stoltmann contends that there is insufficient evidence to prove beyond a reasonable doubt
that he operated the vehicle.
Our standard of review when considering the sufficiency of evidence is well settled.
We will not reweigh the evidence or consider the credibility of witnesses.
Only the evidence most favorable to the verdict, together with all reasonable
inferences that can be drawn therefrom will be considered. If a reasonable
trier of fact could have found the defendant guilty based on the probative
evidence and reasonable inferences drawn therefrom, then a conviction will be affirmed.
Livermore v. State, 777 N.E.2d 1154, 1161 (Ind. Ct. App. 2002).
When initially questioned by Deputy South, Stoltmann stated that he had been test-driving
See Tr. at 128. Additionally, Stoltmann entered the drivers
side of the vehicle, and Roman was sitting on the passengers side of
the vehicle. From this evidence, the jury could have drawn the reasonable
inference that Stoltmann had operated the vehicle. Stoltmanns assertions to the contrary
are an invitation to reweigh the evidence, which we will not do.
II. Motion for Mistrial
During voir dire, Stoltmann objected when the prosecutor gestured while comparing the operation
of a vehicle while intoxicated with the possession of a firearm by a
serious violent felon. Stoltmann interpreted the prosecutors gesture as implying that he
was a serious violent felon. The trial court dismissed the venireman to
whom the prosecutor had addressed his remarks. At trial, Stoltmann objected when
the prosecutor asked if Roman was romantically involved with Stoltmann. The trial
court struck the question from the record and denied Stoltmanns subsequent motion for
mistrial. During closing argument, Stoltmann objected when the prosecutor stated, And [Stoltmann]
knew, with his record, what he was facing. He knew of his
suspended, forfeited for life[.] Tr. at 255. The trial court overruled
Stoltmanns objection and denied his subsequent motion for mistrial.
Stoltmann now contends that the trial court improperly denied his motions for mistrial
in response to alleged prosecutorial misconduct.
[T]o succeed on appeal from the denial of a mistrial, a defendant must
demonstrate that the conduct complained of was both error and had a probable
persuasive effect on the jurys decision. The decision to grant or deny
a motion for a mistrial lies within the discretion of the trial court.
A mistrial is an extreme remedy granted only when no other method
can rectify the situation. Because the trial court is in the best
position to evaluate the relevant circumstances of an event and its impact on
the jury, the trial courts determination of whether to grant a mistrial is
afforded great deference on appeal.
Booher v. State, 773 N.E.2d 814, 820 (Ind. 2002) (citations omitted).
Stoltmann claims that the three aforementioned incidents constitute prosecutorial misconduct but fails to
demonstrate that they were either error or had a probable persuasive effect on
the jurys decision. As such, he has failed to demonstrate that the
trial court abused its discretion in denying his motions for mistrial.
III. Jury Instructions
Stoltmann challenges two of the trial courts final jury instructions. Instruction of
the jury is left to the sound judgment of the trial court and
will not be disturbed absent an abuse of discretion. Jury instructions are
not to be considered in isolation but as a whole and in reference
to each other. Reed v. State, 720 N.E.2d 431, 435 (Ind. Ct.
App. 1999) (citation omitted), trans. denied (2000). The instructions must be a
complete, accurate statement of the law which will not confuse or mislead the
jury. Sylvester v. State, 698 N.E.2d 1126, 1131 (Ind. 1998).
A. Refusal to Take Chemical Breath Test
Stoltmann first claims that the following instruction was confusing and misleading: A
defendants refusal to submit to a chemical test may be considered as evidence
of the defendants guilt. Appellants App. at 194. Two panels of
this court have concluded that the giving of this instruction is not an
abuse of discretion. See Luckhart v. State, 780 N.E.2d 1165, 1168 (Ind.
Ct. App. 2003) ([T]here was no dispute that Luckhart had been driving when
he refused to take the test, and it is not likely that the
jury was confused about the proper element of the offense to which the
evidence pertained.); Hurt v. State, 553 N.E.2d 1243, 1249 (Ind. Ct. App. 1990)
(The use of the word guilt, taken in the context of all the
instructions, was not confusing, nor was the instruction otherwise impermissible.). The Luckhart
court expressed reservations about the instruction but concluded that it was not erroneous:
In this case, as in
Hurt, the trial courts instructions repeatedly referenced the
issue of Luckharts guilt, and expressly set forth the elements that had to
be proved to establish Luckharts guilt. It might have been more accurate
for the trial court to have instructed the jury that Luckharts refusal to
take a chemical breath test was evidence of his intoxication rather than evidence
of his guilt of the offense of driving while intoxicated, as there is
no connection between his refusal to take the test and his operation of
Luckhart, 780 N.E.2d at 1168.
The purpose of a jury instruction is to inform the jury of the
law applicable to the facts without misleading the jury and to enable it
to comprehend the case clearly and arrive at a just, fair, and correct
Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001). [I]nstructions
that unnecessarily emphasize one particular evidentiary fact, witness, or phase of the case
have long been disapproved. Id. An instruction as to what evidence
warrants an inference of guilt clearly invades the jurys province. Crawford v.
State, 550 N.E.2d 759, 761 (Ind. 1990). While Stoltmanns refusal to take
the chemical breath test was admissible into evidence, see Ind. Code § 9-30-6-3(b),
the challenged instruction unduly emphasizes its importance. Furthermore, the instruction confuses and
misleads the jury by permitting it to infer that the refusal is sufficient
to establish all the elements of the offense of operating a vehicle while
intoxicated, when, at best, it establishes only that he refused to take the
Our supreme court recently disapproved the use of an analogous instruction. In
Dill, the court found that the trial court erred in instructing the jury
that it could consider the flight of a person after the commission of
a crime as evidence of guilt. Dill, 741 N.E.2d at 1231-32.
The Dill court determined that the instruction was confusing and misleading and unduly
emphasized specific evidence. Id. at 1233. For similar reasons, we conclude
that the trial court abused its discretion in instructing the jury regarding Stoltmanns
refusal to submit to the chemical breath test.
We note, however, that
[e]rrors in the giving or refusing of instructions are harmless where a conviction
is clearly sustained by the evidence and the jury could not properly have
found otherwise. An instruction error will result in reversal when the reviewing
court cannot say with complete confidence that a reasonable jury would have rendered
a guilty verdict had the instruction not been given.
Smith v. State, 755 N.E.2d 1150, 1152 (Ind. Ct. App. 2001) (citations and
quotation marks omitted). Here, Stoltmann admitted to Deputy South that he had
operated the vehicle and was intoxicated. Stoltmanns conviction for operating a vehicle
while intoxicated is clearly sustained by the evidence, and the jury could not
have properly found otherwise. The giving of the instruction was harmless error.
B. Prior Inconsistent Statement
Stoltmann also takes issue with the following instruction:
The credibility of a witness may be attacked by introducing evidence that on
some former occasion the witness made a statement inconsistent with his testimony in
this case. It is inconsistent if the witness denied making the prior
statement or if the witness could not remember making the prior statement.
Evidence of this kind may be considered by you in deciding the weight
to given to the testimony of that witness as well as substantial evidence
of the guilt of the defendant.
Appellants App. at 204. Because Stoltmann did not object to this instruction
at trial, he has waived this issue on appeal.
See Boesch v.
State, 778 N.E.2d 1276, 1279 (Ind. 2002).
To avoid procedural default, he contends that the instruction was fundamental error.
The fundamental error rule is extremely narrow, and applies only when the error
constitutes a blatant violation of basic principles, the harm or potential for harm
is substantial, and the resulting error denies the defendant fundamental due process.
When determining whether a defendant suffered a due process violation based on an
incorrect jury instruction, we look not to the erroneous instruction in isolation, but
in the context of all relevant information given to the jury, including closing
argument, and other instructions. There is no resulting due process violation where
all such information, considered as a whole, does not mislead the jury as
to a correct understanding of the law.
Id. (citations omitted). In support of his contention that the giving of
the instruction was fundamental error, Stoltmann points both to Romans prior inconsistent unsworn
statement in which he identified Stoltmann as the driver and to the prosecutors
reliance on the statement during closing argument.
We agree with Stoltmann that a witnesss prior inconsistent unsworn statement is not
admissible as substantive evidence.
Indiana Evidence Rule 801(d)(1)(A) provides that a statement is not hearsay if [t]he
declarant testifies at the trial or hearing and is subject to cross examination
concerning the statement, and the statement is
inconsistent with the declarant's testimony
and was given under oath subject to the penalty of perjury at a
trial, hearing or other proceeding, or in a deposition [.]
Humphrey v. State, 680 N.E.2d 836, 838 (Ind. 1997) (alterations in Humphrey).
Because Romans prior inconsistent statement was not given under oath, it was hearsay
and therefore inadmissible under Evidence Rule 802. See Ind. Evidence Rule 802
(Hearsay is not admissible except as provided by law or by these rules.).
The statement was admissible under Evidence Rule 613, however, for the limited
purpose of impeaching Roman. See Ind. Evidence Rule 613 (Extrinsic evidence of
a prior inconsistent statement by a witness is not admissible unless the witness
is afforded an opportunity to explain or deny the same and the opposite
party is afforded an opportunity to interrogate the witness thereon, or the interests
of justice otherwise require.); see also Humphrey at 838-39. The trial court
erred in instructing the jury otherwise. Nevertheless, given Stoltmanns admission to Deputy
South that he had driven the vehicle and the circumstantial evidence supporting this
admission, we cannot conclude that the giving of this instruction substantially harmed Stoltmann
or denied him fundamental due process.
FRIEDLANDER, J., and MAY, J., concur.
We heard oral argument in this case on July 28,
2003, in Indianapolis. We commend counsel for their spirited appellate advocacy.
Footnote: Ind. Code § 9-30-10-17.
Ind. Code § 9-30-5-2(a).
Luckhart court cited to Hurt, 553 N.E.2d at 1249,
for the proposition that the United States Supreme Court had approved the use
of this instruction in South Dakota v. Neville, 459 U.S. 553 (1983).
As the Hurt court correctly acknowledged, however, Neville held only that the admission
of a defendants refusal to take a chemical breath test as substantive evidence
of guilt is not fundamentally unfair. See Hurt, 553 N.E.2d at 1249
(citing Neville, 459 U.S. at 565).