Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 1 of 26

ATTORNEY FOR APPELLANT

M. Slaimon Ayoubi

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Courtney Staton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James W. Combs,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

July 9, 2020

Court of Appeals Case No.

19A-CR-1991

Appeal from the Boone Superior 

Court

The Honorable Bruce E. Petit, 

Judge

Trial Court Cause No.

06D02-1702-F3-134

Tavitas, Judge.

Case Summary

[1] James Combs appeals his convictions for Counts I, II, and III, possession of 

narcotic drugs, Level 3 felonies; Count V, operating a vehicle while intoxicated 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 2 of 26

endangering a person, a Class A misdemeanor; Count VI, operating a vehicle 

while intoxicated, a Class C misdemeanor; Count VII, operating a vehicle with 

a schedule I or II controlled substance or its metabolite in the body, a Class C 

misdemeanor; Count VIII, leaving the scene of an accident, a Class B 

misdemeanor; and Count IX, public intoxication, a Class B misdemeanor. We 

affirm in part, reverse in part, and remand. 

Issues

[2] Combs raises six issues on appeal; however, we consolidate and restate the 

issues as follows: 

I. Whether the trial court erred in admitting certain evidence. 

II. Whether the trial court abused its discretion in failing to 

replace a juror with an alternate juror. 

III. Whether the prosecutor committed misconduct.

IV. Whether the evidence is sufficient to sustain Combs’ 

convictions. 

Facts

[3] On February 11, 2017, Combs was driving his gold van when he swerved to 

avoid another vehicle and struck an electrical box in Lebanon. After the 

accident, Combs exited his vehicle and took photographs of the damage. 

Witnesses described Combs as “lethargic” and “quiet” at the scene of the 

accident. Tr. Vol. III p. 11. Witnesses also reported to law enforcement that 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 3 of 26

Combs looked for something under the driver’s seat of the vehicle, was 

“rummaging around,” and trying to “push things around.” Id. at 13. Shortly 

thereafter, Combs left the scene. 

[4] Officer James Koontz, a patrol officer with the Lebanon Police Department, 

responded to a dispatch call regarding the accident and arrived approximately 

two minutes later. Combs was not at the scene when Officer Koontz arrived. 

Witnesses directed Officer Koontz to a nearby neighborhood, to which Combs 

reportedly drove after the accident. Officer Koontz traveled to the 

neighborhood, where he observed a fluid trail and a damaged van. 

[5] The van was parked in Combs’ driveway and had a flat driver-side front tire; 

Officer Koontz observed that the fluid trail continued up the driveway to the 

van. Officer Koontz arrived as Combs stepped from the driver’s seat of the van. 

Officer Koontz advised Combs to remove his hands from his pockets and asked 

if Combs had any weapons. Combs advised Officer Koontz he had three guns

on his person, which Officer Koontz removed. Combs also stated that he 

intended to call the police about the accident. 

[6] Officer Koontz requested Combs’ identification. As Combs retrieved his 

identification from the van, Officer Koontz observed a knife in “the area 

between the two front seats.” Tr. Vol. II p. 11. Officer Koontz asked Combs to 

step away from the van. As Officer Koontz questioned Combs about the 

accident, witnesses to the accident arrived at Combs’ house. Officer Koontz 
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asked Combs for permission to search the van; however, Combs refused, unless 

Combs could hand Officer Koontz the items in the vehicle. 

[7] During the conversation, Officer Koontz observed that Combs’ eyes were 

glassy, Combs had pinpoint pupils, and Combs’ speech was slowed. Officer 

Koontz did not detect any odors from Combs’ breath; however, Officer Koontz 

became suspicious that Combs may be under the influence of medication or 

drugs. Accordingly, Officer Koontz proceeded with an investigation for 

operating while intoxicated. Several other officers arrived at the scene, 

including Lieutenant Rich Mount, with the Lebanon Police Department. 

[8] Combs failed two of the field sobriety tests; however, a portable breath test was 

negative for alcohol. Officer Koontz asked if Combs took any prescription 

medication that day, and Combs advised that he took his prescribed Adderall 

medication. Officer Koontz read Combs the Indiana Implied Consent Law,

and Combs agreed to submit to a chemical test. 

[9] At some point after Combs was handcuffed to be transported for the chemical 

test,

1 but before Combs was taken to the hospital, Officer Koontz asked Combs 

if Officer Koontz could look under the front seat of his van. Combs initially 

consented to the officers looking under the front passenger seat of the van. The

officers looked under the seat and found a black bag. Combs, however, told the 

1 At the hearing on the motion to suppress, Officer Koontz testified that he had detained Combs at this point; 

however, Combs was not under arrest. 
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officers that they could not look inside the bag. The officers then ended their 

search. 

[10] As Officer Koontz transported Combs to the hospital for the chemical test, 

Lieutenant Mount telephoned the prosecutor’s office from his vehicle. 

Lieutenant Mount remained with Combs’ van to “figure out . . . what [officers] 

were gonna [sic] do with the [van].” Id. at 52. The officers learned that the van 

contained valuable items related to Combs’ business. 

[11] The officers called for the van to be towed, and an inventory search of the van

was conducted while the van was still in the driveway. The inventory search 

yielded several personal items, including white pills in a clear bag,

2 and a 

prescription bottle belonging to Combs. The white pills were identified as

Alprazolam, Hydrocodone, Oxycodone—all controlled substances. Some

personal items collected from the van were turned over to Combs’ wife at the 

scene. Two days later, Combs’ van was also returned to his wife. 

[12] Combs’ urine drug screen revealed the presence of amphetamine, AHydroxyalprazolam, “which is a metabolite for Xanax,” hydrocodone, 

oxycodone, and T.H.C. Tr. Vol. IV p. 66. The blood screen detected the

presence of alprazolam and amphetamine. 

2 The white pills were found in the small black bag under the driver’s seat. 
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[13] On February 13, 2017, the State charged Combs with Counts I, II, and III, 

possession of narcotic drugs,3 Level 3 felonies; Count IV, possession of a 

controlled substance, a Level 6 felony; Count V, operating a vehicle while 

intoxicated endangering a person, a Class A misdemeanor; Count VI, operating 

a vehicle while intoxicated, a Class C misdemeanor; Count VII, operating a 

vehicle with a schedule I or II controlled substance or its metabolite in the 

body, a Class C misdemeanor; Count VIII, leaving the scene of an accident, a 

Class B misdemeanor; and Count IX, public intoxication, a Class B 

misdemeanor. 

[14] On May 10, 2017, Combs filed a motion to suppress all evidence obtained from 

the search of Combs’ van, which he claimed violated his rights pursuant to the

Fourth and Fifth Amendments of the United States Constitution and Article 1, 

Section 11 of the Indiana Constitution. On July 7, 2017, the trial court held a 

hearing on Combs’ motion to suppress. 

[15] At the hearing on the motion to suppress, Lieutenant Mount testified that he 

“was leaning towards towing [the van] as evidence because it was involved in 

the leaving the scene of a property damage accident,” and police department 

policy allows impoundment when the vehicle is evidence of a crime.4

 Tr. Vol. 

3 These charges were based on the white pills found in Combs’ van: Count I was for possession of 

hydrocodone; Count II was for possession of 10 milligrams of oxycodone pills; and Count III was for 

possession of 7.5 milligrams of oxycodone pills. Count IV was for possession of Alprazolam; however, 

Combs was found not guilty of Count IV. 

4 The Lebanon Police Department’s written policy for impound and inventory of vehicles was admitted as an 

exhibit at the motion to suppress hearing. 
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II p. 53. Lieutenant Mount then testified that officers were “definitely” going to 

arrest Combs for leaving the scene of a property damage accident after his 

blood draw at the hospital; therefore, officers began the process of impounding 

and inventorying the van. Id. at 67. When he was asked whether a less 

intrusive method was available to obtain the needed evidence, Lieutenant 

Mount testified that this procedure was “just [the department’s] policy.” Id. at 

70. 

[16] In closing arguments at the hearing on the motion to suppress, the State argued 

that the decision to impound Combs’ van was “discretionary.” Id. at 85. On 

August 9, 2017, the trial court issued an order denying Combs’ motion to 

suppress. The trial court found that the officers had probable cause to believe 

the van was connected to criminal activity, and thus, could seize the van

without a warrant. 

[17] Combs filed a motion to reconsider on August 27, 2018. The trial court entered 

an order again denying Combs’ motion to suppress and found as follows: 

This Court finds that in this case under consideration, the State 

did not rely on the automobile exception to enter onto 

Defendant’s property and seize evidence as was prohibited in 

Collins v. Virginia[, __ U.S. __, 138 S. Ct. 1663 (2018)]. The 

officer first to arrive at Defendant’s residence was in fresh pursuit 

of the Defendant and his arrival at Defendant’s residence 

occurred at the same time the alleged crime was unfolding. 

These exigent circumstances allowed the officer to enter onto 

Defendant’s property. Additionally, the officer had probable 

cause to believe the Defendant had violated I.C. 9-26-1-1.1[ ] and 

further, had the authority to arrest the Defendant on his property 
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as a result. The obvious nature of Defendant’s van as evidence of 

Leaving the Scene of an Accident allowed its seizure pursuant to 

the plain view doctrine. . . .

Appellant’s App. Vol. II p. 115. Combs moved to certify the order for 

interlocutory appeal on September 26, 2018, which the trial court granted on 

September 28, 2018. Our Court denied jurisdiction over Combs’ interlocutory 

appeal. 

[18] At Combs’ jury trial from May 14 to May 16, 2019, witnesses testified to the 

foregoing facts. Combs lodged a continuing objection to the evidence recovered 

from the van. At the trial, Lieutenant Mount again testified that law 

enforcement towed Combs’ van as evidence of a crime. Lieutenant Mount 

testified that he did not obtain a warrant to search the van because obtaining a 

search warrant was “a pain in the a**.” Tr. Vol. III p. 169. Also during his 

testimony, Lieutenant Mount acknowledged that Combs admitted his 

involvement in the accident; however, when pressed about why the van would 

need to be seized given Combs’ admission, Lieutenant Mount testified that he 

was unsure and that Combs may have initially denied any involvement in the 

accident. The jury found Combs not guilty of Count IV, but guilty of the 

remaining counts. Combs now appeals. 

Analysis

I. Admission of Evidence

[19] “The general admission of evidence at trial is a matter we leave to the discretion 

of the trial court.” See Clark v. State, 994 N.E.2d 252, 259-60 (Ind. 2013). “We 
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review these determinations for abuse of that discretion and reverse only when 

admission is clearly against the logic and effect of the facts and circumstances 

and the error affects a party’s substantial rights.” Id. at 260. 

A. Search of Combs’ Vehicle 

[20] Combs argues that his Fourth Amendment rights were violated when police 

searched his vehicle without a warrant.5

 Because Combs appeals from a 

completed jury trial rather than the denial of his motion to suppress, the issue is 

more appropriately framed as whether the trial court properly admitted the 

evidence at trial. See Clark v. State, 994 N.E.2d 252, 259 (Ind. 2013). We review 

the trial court’s conclusions on the admission of evidence for an abuse of 

discretion. See id. at 260. “However, when a challenge to an evidentiary ruling 

is predicated on the constitutionality of a search or seizure of evidence, it raises 

a question of law that is reviewed de novo.” Curry v. State, 90 N.E.3d 677, 683 

(Ind. Ct. App. 2017), trans. denied (citations omitted). “The State has the burden 

to demonstrate that the measures it used to seize information or evidence were 

constitutional.” Id.

[21] The Fourth Amendment to the United States Constitution protects citizens 

against unreasonable searches and seizures by prohibiting them without a 

5 Combs also argued in his motion to suppress that the search was improper under Article 1, Section 11 of the 

Indiana Constitution. Combs, however, does not articulate an Indiana Constitution argument in his brief as 

required. See Abel v. State, 773 N.E.2d 276, 278 n.1 (Ind. 2002) (“Because Abel presents no authority or 

independent analysis supporting a separate standard under the state constitution, any state constitutional 

claim is waived.”). Accordingly, we agree with the State that this argument is waived. See Ind. Appellate 

Rule 46(A). 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 10 of 26

warrant supported by probable cause. U.S. Const. amend. IV. “The 

fundamental purpose of the Fourth Amendment to the United States 

Constitution is to protect the legitimate expectations of privacy that citizens 

possess in their persons, their homes, and their belongings.” Taylor v. State, 842 

N.E.2d 327, 330 (Ind. 2006). This protection has been “extended to the states 

through the Fourteenth Amendment.” Bradley v. State, 54 N.E.3d 996, 999 

(Ind. 2016). “As a deterrent mechanism, evidence obtained in violation of this 

rule is generally not admissible in a prosecution against the victim of the 

unlawful search or seizure absent evidence of a recognized exception.” Clark, 

994 N.E.2d at 260. 

[22] The State argues that the officers lawfully viewed Combs’ van without 

conducting a search under the Fourth Amendment and, therefore, the seizure of 

Combs’ van was valid under the open view doctrine as evidence of a crime.6

 

This argument diverges from the trial court’s order,7 which allowed seizure of 

the vehicle under the plain view doctrine rather than the open view doctrine. 

6 The State also argues that Combs waived this argument by failure to raise a cogent argument in his briefs. 

Combs’ substantive analysis on this issue spans one sentence. We, however, will address the issue because, 

although appellant’s brief was severely lacking, the arguments made at trial and in the motion to suppress on 

this issue are sufficient for us to conduct a meaningful review. Although we address this issue, we again 

instruct counsel to review Indiana Appellate Rule 46, specifically, the requirement for cogent arguments. 

7 We note that the State has advanced several theories for the search of the vehicle, and the trial court denied 

the suppression of the evidence on varying theories. Specifically, Lieutenant Mount initially testified that “he

was leaning toward towing [the van] as evidence of a crime and that the subsequent inventory search was 

done pursuant to policy, tr. vol. II p. 53; however, Lieutenant Mount also testified that the officers decided 

what they were going to do with the vehicle once they arrested Combs, which implies that the search was 

incident to arrest. At the hearing on the motion to suppress, the State argued the seizure was a discretionary 
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Often confused with the plain view doctrine is the concept of 

‘open view,’ which is used in situations in which a law 

enforcement officer sees contraband from an area that is not 

constitutionally protected, but rather is in a place where the 

officer is lawfully entitled to be. In such situations, anything that 

is within ‘open view’ may be observed without having to obtain a 

search warrant because making such ‘open view’ observations 

does not constitute a search in the constitutional sense. 

Nonetheless, in order to lawfully seize items in ‘open view,’ it 

may be necessary to obtain a search warrant or be able to justify a 

warrantless seizure under an exception to the warrant 

requirement. 

McAnalley v. State, 134 N.E.3d 488, 501 (Ind. Ct. App. 2019), trans. denied. 

[23] In Houser v. State, 678 N.E.2d 95, 101 (Ind. 1997), our Supreme Court held that 

a warrant is not required to seize incriminating evidence under the plain view 

doctrine 

if the following conditions are met: (1) police have a legal right to 

be at the place from which the evidence can be plainly viewed; 

(2) the incriminating character of the evidence is immediately 

apparent; and (3) police have a lawful right of access to the object 

itself.

Houser, 678 N.E.2d at 101. “The immediately apparent prong of the doctrine 

requires that the officer have probable cause to believe the evidence will prove 

useful in solving a crime.” Wilkinson v. State, 70 N.E.3d 392, 402 (Ind. Ct. App. 

impound. The trial court denied Combs’ motion to suppress, then denied Combs’ motion to reconsider and 

found the State did not rely on the automobile exception, but instead, the plain view doctrine. On appeal, the 

State argues only that the open view doctrine applies. 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 12 of 26

2017) (quotations omitted). “Probable cause requires only that the information 

available to the officer would lead a person of reasonable caution to believe the 

items could be useful as evidence of a crime. A practical, nontechnical 

probability that incriminating evidence is involved is all that is required.”8

 

Taylor v. State, 659 N.E.2d 535, 539 (Ind. 1995) (quotations and citations 

omitted). 

[24] We do not find the open view or plain view doctrines to be operable here. It is 

clear from the record that the towing and impound search of the vehicle were

merely pretextual means by which officers could search the vehicle to find 

incriminating evidence. 

[25] Witnesses reported to officers that Combs looked for something under his seat,

and Officer Koontz asked to search the vehicle early in his investigation. 

Combs declined to consent. The vehicle was parked in Combs’ driveway, and 

officers had time to procure a warrant before searching the vehicle, but they 

declined to do so due to the inconvenience. At the hearing on the motion to 

suppress, Lieutenant Mount initially testified that the officers seized the vehicle 

as evidence of a crime. Photographs of the vehicle, however, were not admitted 

into evidence at trial, and the record reveals that the vehicle was returned to 

Combs’ wife two days after it was towed from Combs’ driveway. 

8 We observe that the State’s argument and the cases the State cites discuss probable cause in the context of 

the open view doctrine and not the automobile exception. Accordingly, we will focus on this area of 

probable cause in our opinion as well. 
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[26] Combs admitted that he was going to contact law enforcement regarding the 

accident; therefore, it is not clear why the officers needed the van to solve the 

crime. The State presented no evidence that the van would “prove useful in 

solving” the investigations into the charges of leaving the scene of an accident 

or driving while intoxicated. Wilkinson, 70 N.E.3d at 402. The damage was on 

the outside of the vehicle and photographs of the vehicle could have preserved 

the evidence. Nothing in the record indicates that the officers had probable 

cause to believe the van contained evidence that was related to the offenses 

being investigated.

[27] The record supports the finding that the officers’ inventory search was a pretext

for searching Combs’ van.

9

 See Fair, 627 N.E.2d at 436 (finding the inventory 

search at issue “presents several indicia of pretext which raise a question about 

whether it was conducted in good faith”); see also Sams v. State, 71 N.E.3d 372,

382 (Ind. Ct. App. 2017) (finding that a search is “pretextual and therefore 

unreasonable” when “any administrative benefits of the officers’ inventory 

search were incidental to the investigative benefits when the law required the 

opposite”); see cf. Widduck v. State, 861 N.E.2d 1267, 1271 (Ind. Ct. App. 2007)

(finding that the inventory search was reasonable under the Fourth 

Amendment, in part, because “the record before [the court was] devoid of any 

indicia of pretext or subterfuge for general rummaging”). Here, we find indicia 

9 The fact that the State admitted as an exhibit at the motion to suppress hearing the police department policy 

regarding impoundment of vehicles and the subsequent inventory searches does not overcome the pretextual 

facts we observe in this record. 
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of pretext to search Combs’ vehicle for incriminating evidence; accordingly, the 

search was unreasonable. We conclude that the search of Combs’ vehicle was 

impermissible under the open view and plain view doctrines and the Fourth 

Amendment.

[28] In considering the admissibility of evidence obtained from an illegal search, we 

must consider the fruit of the poisonous tree doctrine.

The fruit of the poisonous tree doctrine bars the admission of 

evidence “directly obtained by [an] illegal search or seizure as 

well as evidence derivatively gained as a result of information 

learned or leads obtained during that same search or seizure.” 

To invoke the doctrine, a defendant must first prove a Fourth

Amendment violation and then must show the evidence was a 

“fruit” of the illegal search. But the exclusion of evidence is not 

the result of a simple “but for” test. The doctrine has no 

application where (1) “evidence [is] initially discovered during, 

or as a consequence of, an unlawful search, but [is] later obtained 

independently from activities untainted by the initial illegality,” . 

. . ; (2) “the information ultimately or inevitably would have been 

discovered by lawful means,” . . . or (3) “the connection between 

the lawless conduct of the police and the discovery of the 

challenged evidence has ‘become so attenuated as to dissipate the 

taint,’ . . . The burden is on the State to prove one of these 

exceptions applies. 

Ogburn v. State, 53 N.E.3d 464, 475 (Ind. Ct. App. 2016) (quotations and 

citations omitted), trans. denied. 

[29] Here, the discovery of the evidence obtained from the vehicle was a direct result 

of the pretextual and illegal search of Combs’ van. There is also no indication 

that the evidence from the van could have been obtained in another way. 
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Moreover, the connection between the search and the evidence is not 

attenuated to such a point that we could conclude it is no longer tainted. See 

also Wright v. State, 108 N.E.3d 307, 315 (Ind. 2018) (holding that the Fourth 

Amendment requires that “the objected-to-evidence will be excluded as fruit of 

the poisonous tree if police obtained it by exploiting the primary illegality”).10 

[30] The officers violated Combs’ Fourth Amendment rights by searching his vehicle 

without a warrant, and the evidence obtained from the search was fruit of the 

poisonous tree. Specifically, the pills found in Combs’ vehicle should not have 

been admitted at trial. Those pills formed the basis for Combs’ convictions for 

Counts I, II, and III. Accordingly, we reverse Combs’ convictions for Counts I, 

II, and III, and we remand for proceedings consistent with our opinion. 

10 For the reasons discussed above, we also conclude that impoundment of the vehicle would have been 

invalid. Law enforcement may have authority to impound a vehicle either through statute or law 

enforcement’s community caretaking function. Wilford v. State, 50 N.E.3d 371, 375 (Ind. 2016). Our 

Supreme Court:

[has] set forth a strict two-prong standard for proving that the decision to impound a 

person’s vehicle without a warrant was reasonable: 

(1) Consistent with objective standards of sound policing, an officer must believe 

the vehicle poses a threat of harm to the community or is itself imperiled; and 

(2) The officer’s decision to impound adhered to established departmental 

routine or regulation.

Id. at 375-76 (quoting Fair v. State, 627 N.E.2d 427, 433 (Ind. 1993)). Combs’ vehicle, parked in 

his driveway, would not have posed a threat of harm to the community; nor was the vehicle itself 

imperiled. See Fair, 627 N.E.2d at 435 (concluding that impounding the defendant’s vehicle was 

improper even when the vehicle was not parked at the defendant’s home, but “the permissibility of 

it remaining at the complex was in the hands of his acquaintances”). 
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B. Chemical Test Results

[31] Next, Combs argues that the trial court abused its discretion in admitting the 

certified chemical results pursuant to Indiana Code Section 9-30-6-6(a) because 

the State was unable to prove that the person who drew blood from Combs 

acted under the direction of or under a protocol prepared by a physician. 

Indiana Code Section 9-30-6-6(a) states: 

(a) A physician, a person trained in retrieving contraband or 

obtaining bodily substance samples and acting under the 

direction of or under a protocol prepared by a physician, or a 

licensed health care professional acting within the professional’s 

scope of practice and under the direction of or under a protocol 

prepared by a physician, who:

(1) obtains a blood, urine, or other bodily substance 

sample from a person, regardless of whether the sample is 

taken for diagnostic purposes or at the request of a law 

enforcement officer under this section;

(2) performs a chemical test on blood, urine, or other 

bodily substance obtained from a person; or

(3) searches for or retrieves contraband from the body 

cavity of an individual;

shall deliver the sample or contraband or disclose the results of 

the test to a law enforcement officer who requests the sample, 

contraband, or results as a part of a criminal investigation. 

Samples, contraband, and test results shall be provided to a law 

enforcement officer even if the person has not consented to or 

otherwise authorized their release.
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[32] First, we agree with the State that Combs has waived this issue because he did 

not raise non-compliance with Indiana Code Section 9-30-6-6(a) below. See 

Shorter v. State, 144 N.E.3d 829, 841 (Ind. Ct. App. 2020) (quoting Washington v. 

State, 808 N.E.2d 617, 625 (Ind. 2004)) (concluding that failure to raise an 

argument in the trial court constituted waiver on appeal because “‘a trial court 

cannot be found to have erred as to an issue or argument that it never had an 

opportunity to consider’”). Waiver notwithstanding, Tiffany Long, a lab 

phlebotomist at Witham Health Services, who conducted Combs’ blood draw,

testified that she followed a specific protocol required for blood draws, and that 

the procedure, therefore, was approved by a physician.11 Long then testified in 

detail about the process, which included inverting the tubes of blood, labeling 

the samples, placing the samples in a biohazard bag, taping the bags shut, and 

placing them in a lock box. The trial court did not abuse its discretion in 

admitting the evidence of the chemical blood draw. 

II. Request to replace juror

[33] Combs next argues the trial court erred in refusing his request to replace a juror

after the juror disclosed, after the trial began, that he knew one of the State’s 

witnesses. “Trial courts have broad discretion in deciding whether to remove 

and replace a juror before deliberations have begun and, in such circumstances, 

11 The name of the physician who approved the procedure was not given at trial. 
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we reverse only for an abuse of discretion.” Durden v. State, 99 N.E.3d 645, 650 

(Ind. 2018) (citations omitted). 

[34] During the State’s case-in-chief, the trial court was advised that a juror formerly 

worked at a pharmacy that Lieutenant Mount frequented. The juror did not 

initially recognize Lieutenant Mount’s name on the witness list during voir dire. 

When questioned about the nature of the juror’s relationship to Lieutenant 

Mount, the juror stated that: (1) he and Lieutenant Mount did not have a social 

relationship; (2) the juror was no longer in contact with Lieutenant Mount; but 

(3) the juror thought positively of Lieutenant Mount. The juror told the trial 

court that the juror could consider the “big picture” of all the evidence in 

reaching a result in the case. Tr. Vol. III p. 68. Combs requested that the juror 

be replaced by an alternate juror, which the trial court denied. 

[35] We cannot say the trial court abused its discretion. The juror advised the trial 

court his familiarity with Lieutenant Mount would not prevent him from 

considering and weighing the evidence independently. Moreover, the juror

knew Lieutenant Mount professionally, not socially, and the two were no 

longer in contact. Accordingly, the trial court did not abuse its discretion in 

declining to replace the juror with an alternate juror. 
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III. Prosecutorial Misconduct

[36] Combs argues the prosecutor committed misconduct by improperly shifting the 

State’s burden of proof at trial to Combs regarding certain evidence. 12 During 

the defense’s case-in-chief, Vicki Combs (“Vicki”), Combs’ wife, testified that 

the pills belonged to Vicki’s family members and that Vicki’s family members

had prescriptions for the pills. During Vicki’s testimony, the following colloquy 

occurred on cross-examination: 

[DEPUTY PROSECUTOR]: And of course this happened about 

two and a half (2-1/2) years ago, right? 

[VICKI]: Correct. 

[DEPUTY PROSECUTOR]: Alright. And it is your testimony 

today that the pills found in the bag belonged to your, and I 

apologize, grandmother?

[VICKI]: My mother, grandmother, father, they were a 

culmination of, of all that she [sic] was finding at the house.

[DEPUTY PROSECUTOR]: So you [have] had two and a half 

(2-1/2) years to perhaps get some prescription records for your 

mother, grandmother, is that right?

[COMBS’ COUNSEL]: Objection Judge. May we approach?

12 We observe that this issue is likely a moot point on remand as we have decided that admission of items in 

the van, which includes the pills, was improper. 
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Tr. Vol. IV p. 174. Combs objected on the grounds that this question left the 

jury with the belief “that the defense had a duty to produce exculpatory 

evidence, instead of the true requirement that the jury must find that the State 

themselves produced sufficient evidence” to support Combs’ convictions. 

Appellant’s Br. p. 27. The trial court sustained Combs’ objection insofar as 

how the State asked the question, i.e., why Vicki did or did not produce any 

documentation to support her claim that the pills belonged to her family 

members; however, the trial court allowed the State to ask Vicki whether she 

produced such documentation. 

[37] When reviewing a claim of prosecutorial misconduct, we must determine 

whether the prosecutor: (1) engaged in misconduct that, (2) under all of the 

circumstances, placed the defendant in a position of grave peril to which he or 

she would not have been otherwise subjected. Ryan v. State, 9 N.E.3d 663, 667 

(Ind. 2014); see also Nichols v. State, 974 N.E.2d 531, 535 (Ind. Ct. App. 

2012). “‘Whether a prosecutor’s argument constitutes misconduct is measured 

by reference to case law and the Rules of Professional Conduct.’” Nichols, 974 

N.E.2d at 535 (quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). We 

measure the weight of the peril by the probable persuasive effect of the 

misconduct on the jury rather than the degree of impropriety of the 

conduct. Id.

[38] We are not persuaded that the State’s question resulted in improper burdenshifting. As the State articulates in its brief, the deputy prosecutor’s question 

was “aimed at illuminating the suspicious timing of [Vicki’s] claims of 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 21 of 26

Defendant’s innocence and was relevant to the jury’s assessment of her 

credibility.” Appellee’s Br. p. 42. Moreover, as the State also argues, the final 

jury instructions explained the State’s burden to prove each element of the 

crime beyond a reasonable doubt. Based on the record before us, Combs has 

failed to demonstrate that the deputy prosecutor committed misconduct. 

IV. Insufficiency of Evidence

[39] Combs argues the evidence is insufficient to support his convictions for 

operating while intoxicated and leaving the scene of a property damage 

accident. When a challenge to the sufficiency of the evidence is raised, “[w]e 

neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 

N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 

1985), cert. denied), cert. denied. Instead, “we ‘consider only that evidence most 

favorable to the judgment together with all reasonable inferences drawn 

therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the 

judgment if it is supported by ‘substantial evidence of probative value even if 

there is some conflict in that evidence.’” Id.; see also McCallister v. State, 91 

N.E.3d 554, 558 (Ind. 2018) (holding that, even though there was conflicting 

evidence, it was “beside the point” because that argument “misapprehend[s] 

our limited role as a reviewing court”). “We will affirm the conviction unless 

no reasonable fact-finder could find the elements of the crime proven beyond a 

reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. 

State, 867 N.E.2d 144, 146 (Ind. 2007)).
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 22 of 26

A. Operating While Intoxicated

[40] Pursuant to Indiana Code Section 9-30-5-2(b), “a person who operates a vehicle 

while intoxicated,” commits operating a vehicle while intoxicated. If the 

operation is done “in a manner that endangers a person,” the offense is a Class 

A misdemeanor. Ind. Code § 9-30-5-2(b). Combs argues the evidence was 

insufficient that: (1) Combs was the driver of the vehicle; and (2) intoxication

occurred contemporaneously with his operation of the vehicle. 

[41] Regarding Combs’ first argument, the State provided sufficient evidence that 

Combs operated the vehicle. One of the witnesses to the accident testified that 

the driver who left the scene of the accident was the same person she later 

observed speaking with the police in Combs’ driveway. See Tr. Vol. III p. 12.

13 

Moreover, moments after the accident was reported, Officer Koontz observed 

Combs exit the driver’s side of the vehicle. According to the officers, Combs 

claimed he intended to call the police to report the accident, which supports the 

inference that Combs was the driver. The evidence was sufficient to prove that 

Combs operated the van. 

[42] In addition, the evidence also supported the finding that Combs operated the 

van while intoxicated. Officer Koontz identified Combs’ pinpoint pupils, slow 

speech, and glassy eyes. Combs failed two field sobriety tests. The blood and 

urine tests administered shortly after Combs drove the vehicle revealed positive 

13 The witness did not identify Combs in the courtroom; however, the witness was clear that the person she 

saw at the scene of the accident was the same person she saw speaking with the police in Combs’ driveway. 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 23 of 26

results for controlled substances. Dr. Sheila Arnold, a forensic toxicologist with 

the Indiana State Department of Toxicology, testified that the concentrations of 

substances found in Combs’ system “were consistent with the impairment 

observed by the officer.” Tr. Vol. IV p. 113. Specifically, Dr. Arnold testified 

that pinpoint pupils are a “classic indicator” of opioids in an individual’s 

system. Id. at 120. 

[43] Combs’ arguments that: (1) we cannot determine the precise time of 

intoxication; and (2) Combs could not have been intoxicated because he was 

able to avoid an accident with another vehicle, are merely requests for us to 

reweigh evidence, which we cannot do. See Gibson, 51 N.E.3d at 210. The 

evidence was sufficient to find Combs guilty of operating while intoxicated. 

B. Leaving the Scene of an Accident 

[44] Combs next argues that the evidence was insufficient to support Combs’ 

conviction for leaving the scene of an accident. Combs was charged under 

Indiana Code Sections 9-26-1-1.1(a)(4) and (b). 

(a) The operator of a motor vehicle involved in an accident shall 

do the following:

(1) Except as provided in section 1.2 of this chapter, the 

operator shall immediately stop the operator’s motor 

vehicle:

(A) at the scene of the accident; or

(B) as close to the accident as possible;
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 24 of 26

in a manner that does not obstruct traffic more than is 

necessary.

(2) Remain at the scene of the accident until the operator 

does the following:

(A) Gives the operator’s name and address and the 

registration number of the motor vehicle the 

operator was driving to any person involved in the 

accident.

(B) Exhibits the operator's driver's license to any 

person involved in the accident or occupant of or 

any person attending to any vehicle involved in the 

accident.

* * * * *

(4) If the accident involves a collision with an unattended 

vehicle or damage to property other than a vehicle, the 

operator shall, in addition to the requirements of 

subdivisions (1) and (2):

(A) take reasonable steps to locate and notify the 

owner or person in charge of the damaged vehicle 

or property of the damage; and

(B) if after reasonable inquiry the operator cannot 

find the owner or person in charge of the damaged 

vehicle or property, the operator must contact a law 

enforcement officer or agency and provide the 

information required by this section.
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 25 of 26

(b) An operator of a motor vehicle who knowingly or 

intentionally fails to comply with subsection (a) commits leaving 

the scene of an accident, a Class B misdemeanor. 

Ind. Code § 9-26-1-1.1. Combs argues that the statute did not require Combs to 

stay at the scene of the accident to determine the owner of the property and/or 

contact law enforcement. 

[45] “When interpreting a statute, our primary goal is to fulfill the legislature’s 

intent.” Day v. State, 57 N.E.3d 809, 813 (Ind. 2016). The best evidence of the 

legislature’s intent is the statute’s language. See id. “If that language is clear 

and unambiguous, we simply apply its plain and ordinary meaning, heeding 

both what it does say and what it does not say.” Id. (quotations omitted). 

[46] Here, the statute contemplates what a person must do, under Indiana Code 

Section 9-26-1-1.1(a)(4), when a driver is in an accident that results in property 

damage. That subsection of the statute specifically states the requirements are 

in addition to the mandate of Indiana Code Section 9-26-1-1.1(a)(2), under 

which a driver must remain at the scene of an accident. The statute does not 

provide that, in the event of property damage, a person may drive away and call

law enforcement at a later, more convenient time. Accordingly, the statute 

required Combs to determine the owner of the property or contact law 

enforcement at the scene of the accident. 

[47] Sufficient evidence supports Combs’ conviction for leaving the scene of an 

accident. Witness testimony revealed that Combs hit the electrical box, got out 
Court of Appeals of Indiana | Opinion 19A-CR-1991 | July 9, 2020 Page 26 of 26

of his vehicle, took photographs with his phone, drove away from the scene, 

and went home. Accordingly, the evidence was sufficient to convict Combs of 

leaving the scene of an accident, a Class B misdemeanor. 

Conclusion

[48] The warrantless search of Combs’ vehicle violated his Fourth Amendment 

rights; therefore, evidence found as a result of the illegal search should have 

been excluded. Accordingly, we reverse Combs’ convictions for Counts I, II, 

and III, and remand for proceedings consistent with this opinion. The trial 

court, however, did not abuse its discretion in admitting the results of Combs’ 

chemical blood test or in failing to replace a juror with the alternate juror. The 

deputy prosecutor did not commit misconduct, and the evidence was sufficient 

to convict Combs of leaving the scene of an accident and operating a vehicle 

while intoxicated. Accordingly, we affirm in part, reverse in part, and remand 

for proceedings consistent with our opinion. 

[49] Affirmed in part, reversed in part, and remanded. 

Riley, J., and Mathias, J., concur.