Preview:

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT: STEVEN A. HOLT ERIKA K. KORNOWA Holt, Fleck & Romine Noblesville, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana JOBY D. JERRELLS Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

May 16 2008, 8:57 am

CLERK

IN THE COURT OF APPEALS OF INDIANA
STEPHEN W. SCHMIDT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 29A05-0710-CR-570

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable J. Richard Campbell, Judge Cause No. 29D04-0512-CM-7553

May 16, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Following his conviction for class C misdemeanor operating a vehicle while intoxicated ("OWI"), Stephen W. Schmidt challenges the sufficiency of the evidence establishing venue. We affirm. On the evening of November 25, 2005, Schmidt, his friend, and his nephew dined at a restaurant near Geist Reservoir.1 At dinner, Schmidt drank at least three beers. Schmidt and his friend left the restaurant in Schmidt's Cadillac. Schmidt drove "southwest" on Fall Creek Road. Tr. at 149. Hamilton County Sheriff's Deputy Greg Lockhart clocked Schmidt's Cadillac traveling fifty-one miles per hour in a thirty-five-miles-per-hour zone and followed Schmidt. According to Deputy Lockhart, he and Schmidt traveled "technically westbound on Fall Creek Road because it starts to parallel with 96th Street as you get into Marion County." Id. at 85. Deputy Lockhart noticed that Schmidt "slowed down for the intersection of 96th and Fall Creek. But he didn't stop." Id. Deputy Lockhart stopped Schmidt for speeding and failure to stop "[j]ust inside Marion County." Id. at 86. Schmidt had bloodshot eyes, and a strong odor of alcohol emanated from his vehicle. Deputy Lockhart asked Schmidt to exit his vehicle and perform field sobriety tests, which he failed. Deputy Lockhart transported Schmidt to the Fishers Police Department and administered a certified breath test, which indicated that Schmidt had a blood alcohol content of .08. The State charged Schmidt with Count I, OWI endangering a person, a class A misdemeanor, and Count II, operating a vehicle with an alcohol concentration of .08 or more,
No evidence was presented regarding either the municipality or the county in which the restaurant was located.
1

2

a class C misdemeanor. On June 28, 2007, Schmidt's jury trial commenced in Hamilton Superior Court. Deputy Lockhart testified that "Fall Creek is probably the number one place to look for DUIs. Personally in this county and 96th Street." Id. at 115 (emphasis added). At the close of the State's evidence, Schmidt moved to dismiss for failure to prove venue. The trial court took the motion under advisement. The jury found Schmidt guilty of class C misdemeanor OWI as a lesser-included offense of Count I and found him guilty of Count II. On June 29, 2007, the trial court denied Schmidt's motion to dismiss. The court entered judgment of conviction and sentenced Schmidt on Count I. On appeal, Schmidt renews his argument that the State failed to prove venue, i.e., that he committed OWI in Hamilton County. Our supreme court has explained that [p]roper venue must be proven by the State in the same manner as the essential elements of the crimes as defined by statute, but only by a preponderance of the evidence. Proof of venue is required because the defendant has a constitutional right to be tried in the county in which the crime was committed. Ind. Const., Art. 1,

Download Stephen W. Schmidt v. State of Indiana.pdf

Indiana Law