Court of Appeals of Indiana | Opinion 27A05-1411-CR-517 | December 4, 2015 Page 1 of 12

ATTORNEY FOR APPELLANT

Jerry T. Drook

Marion, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Larry D. Allen

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Dannie Carl Pattison,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

December 4, 2015

Court of Appeals Case No.

27A05-1411-CR-517

Appeal from the Grant Superior 

Court 

The Honorable Warren Haas, Judge

Trial Court Cause No.

27D03-1303-FD-110

May, Judge.
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[1] Dannie Carl Pattison appeals his conviction of Class D felony operating a vehicle 

with an alcohol concentration equivalent (ACE) of .08% or more with a prior 

conviction within the last five years.1

 Pattison asserts a jury instruction included a 

constitutionally impermissible evidentiary presumption that shifted the burden of 

proof to him on an element of the offense.

[2] We reverse.

Facts and Procedural History

[3] On March 3, 2013, around 1:30 a.m., Jonesboro Police Officer Justin Chambers 

stopped Pattison’s car because the taillights were not working. Officer Chambers 

activated his lights in order to pull Pattison over. Pattison did not stop until he 

pulled into his own driveway, approximately five hundred feet later. Officer 

Chambers pulled into the driveway behind Pattison. 

[4] Pattison pulled himself out of the car as Officer Chambers approached. Pattison 

did not provide his driver’s license when requested. Officer Chambers noticed 

Pattison had “watery eyes and slurred speech and . . . a strong odor of . . . an 

alcoholic beverage.” (Tr. at 11.) Pattison “stated that he had had a couple of beers 

earlier that night.” (Id. at 12.) Officer Chambers decided to conduct field sobriety 

tests. 

 

1 Ind. Code § 9-30-5-1(a) (2001) & Ind. Code § 9-30-5-3(a)(1) (2008). 
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[5] Pattison claimed that, due to prior injuries, he could perform only the horizontal 

gaze nystagmus (“HGN”) test. Pattison failed that test and a portable breathalyzer 

test. After being advised of Indiana’s implied consent law, Pattison agreed to a 

certified chemical test. That test indicated his alcohol concentration equivalent 

(“ACE”) was .10%. Pattison was arrested and charged with operating a vehicle 

with an ACE of .08% or more. 

[6] The jury first found Pattison guilty of Class C misdemeanor operating a vehicle 

with an ACE of .08% or more. Then the State presented evidence of Pattison’s 

prior convictions, which Pattison did not contest. The jury found Pattison guilty of 

Class D felony operating a vehicle with an ACE of 0.08% or more, with a prior 

conviction within five (5) years. The trial court pronounced a three-year sentence.

Discussion and Decision

[7] Pattison challenges a jury instruction. “The manner of instructing a jury is left to 

the sound discretion of the trial court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. 

App. 2013), trans. denied. We reverse only if the instructions are an abuse of 

discretion, Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010), which occurs 

when an instruction is erroneous and the instructions, taken as a whole, misstate 

the law or mislead the jury. Id. 

[8] Pattison did not object at trial to the jury instruction now challenged. An issue is 

waived for appellate review unless a party objected to the alleged error at trial. 

Lewis v. State, 34 N.E.3d 240, 246 (Ind. 2015). Despite waiver, relief remains 

available under a narrow exception for fundamental error. Id. A fundamental 
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error is one that “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.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 

2006)). 

[9] Pattison asserts the challenged instruction resulted in fundamental error because it

contained a constitutionally impermissible evidentiary presumption. An 

evidentiary presumption is an “assumption that a fact exists because of the known 

or proven existence of some other fact or group of facts.” Black’s Law Dictionary 

1376 (10th ed. 2014). When the law requires one fact to be assumed based on 

another fact or other facts, the presumption created is mandatory.2

 Sturgeon v. 

State, 575 N.E.2d 679, 680 n.4 (Ind. Ct. App. 1991). Mandatory presumptions can 

be conclusive or rebuttable. Id. “A conclusive presumption removes the presumed 

element from the case once the State has proved the predicate facts.” Id. A 

rebuttable presumption “does not remove the presumed element from the case” but 

requires the jury to presume it to be true unless the defendant persuades them 

otherwise. Id. 

[10]As Black’s further explains:

Most presumptions are rules of evidence calling for a certain result in a 

given case unless the adversely affected party overcomes it with other 

evidence. A presumption shifts the burden of production or 

 

2 When the law permits, but does not require, a factual conclusion to be drawn based on other facts known or 

proven, a permissive inference has been created. Sturgeon v. State, 575 N.E.2d 679, 680 n.4 (Ind. Ct. App. 

1991). 
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persuasion to the opposing party, who can then attempt to overcome 

the presumption.

[11]Black’s Law Dictionary 1376. Both conclusive and rebuttable mandatory

presumptions “violate the Due Process Clause if they relieve the State of the 

burden of persuasion on an element of a criminal offense.” Sturgeon, 575 N.E.2d at 

680. See also Collins v. State, 567 N.E.2d 798, 801 (Ind. 1991) (Regarding 

instruction that informed jury evidence of letter being mailed was prima facie proof 

that it was received, the court held: “Even though the instruction made the 

presumption rebuttable, a mandatory rebuttable presumption is no less 

unconstitutional.”).

[12]With this background in mind, we turn to the instruction Pattison challenges. To 

prove Pattison guilty as charged, the State had to present evidence he “operate[d] a 

vehicle with an alcohol concentration equivalent [ACE] to at least eighthundredths (0.08) gram of alcohol . . . per . . . two hundred ten (210) liters of the 

person’s breath.” Ind. Code § 9-30-5-1. At a trial for such charge, evidence of the 

driver’s ACE at the time of driving or within three hours thereof is admissible. 

Ind. Code § 9-30-6-15(a) (certain ACE evidence is admissible) & Ind. Code § 9-30-

6-2 (if tested within three hours). 

[13]Furthermore, our legislature has provided:

If, in a prosecution for an offense under IC 9-30-5, evidence establishes 

that:

(1) a chemical test was performed on a test sample taken from the 

person charged with the offense within the period of time allowed for 

testing under section 2 of this chapter; and
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(2) the person charged with the offense had an alcohol concentration 

equivalent to at least eight-hundredths (0.08) gram of alcohol per:

(A) one hundred (100) milliliters of the person’s blood at the 

time the test sample was taken; or

(B) two hundred ten (210) liters of the person’s breath;

the trier of fact shall presume that the person charged with the offense 

had an alcohol concentration equivalent [ACE] to at least eighthundredths (0.08) gram of alcohol per one hundred (100) milliliters of 

the person’s blood or per two hundred ten (210) liters of the person’s 

breath at the time the person operated the vehicle. However, this 

presumption is rebuttable.

Ind. Code § 9-30-6-15(b).3

[14]Because Pattison’s test was administered within the permissible time frame and his 

BAC was .10%, the trial court gave the following jury instruction: 

Rebuttable Presumption

If in a prosecution for operating a vehicle with at least eighthundredths (0.08) gram of alcohol in 210 liters of the breath, if 

evidence establishes that:

• a chemical test was performed within three (3) hours after the 

law enforcement officer had probable cause to believe the 

person committed the crime; and

• the person charged with the offense had an alcohol 

concentration equivalent to at least eight-hundredths (0.08) 

gram of alcohol per two hundred ten (210) liters of the person’s 

breath;

 

3 Our Legislature enacted the first version of this statute shortly after our court held ACE results from a test 

taken after an arrest were sufficiently relevant to be admissible as to the question of ACE at the time of 

driving, but that such results could not prove ACE at the time of driving. See Hall v. State, 560 N.E.2d 561, 

563 (Ind. Ct. App. 1990) (“Shortly after the Smith [v. State, 502 N.E.2d 122, 123 (Ind. Ct. App. 1986), trans. 

denied, superseded by statute] case, the legislature added” the subsection.). 
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the jury shall presume that the person charged with the offense had an 

alcohol concentration equivalent to at least eight-hundredths (0.08) 

gram of alcohol per two hundred ten (210) liters of the person’s breath 

at the time the person operated the vehicle. However, the presumption 

is rebuttable.

[15](App. at 33.) Pattison argues the presumption created in that instruction 

unconstitutionally shifted the burden of proof to him.

[16]In 1989, we first addressed the constitutionality of the statutory presumption that 

underlies the instruction given to Pattison’s jury. Chilcutt v. State, 544 N.E.2d 856, 

857-58 (Ind. Ct. App. 1989), trans. denied. Chilcutt argued the statute 

“unconstitutionally shifted the burden of proof away from the State, effectively 

requiring him to prove his innocence.” Id. at 857. We held

the State did prove each element of the offense beyond a reasonable 

doubt. The defendant admitted operating the vehicle and the State 

proved that a proper and reliable blood alcohol test was given to him. 

The test results, showing that defendant had a .17% blood alcohol 

content, were entered into evidence. In addition, the State also had 

the following testimony of Officer Jolley: “[Chilcutt] stated that he had 

not had anything to drink since the accident.”

In 22A C.J.S. Criminal Law § 579, pp. 331-332, it is stated:

“The legislature may enact laws declaring that, on proof of one 

fact, another fact may be inferred or presumed, and such 

enactments are constitutional, provided no constitutional right 

of accused is destroyed thereby, the presumption is subject to 

rebuttal, and there is some rational connection between the fact 

proved and the ultimate fact presumed.”

22A C.J.S. Criminal Law § 579.

There is a rational connection in IND.CODE § 9-11-4-15 [now 

codified at Ind. Code § 9-30-6-15] between the fact proved and the 

ultimate fact presumed. The fact proved is the person had a blood 

alcohol content of at least .10% at the time the test sample was taken, 

which was within the specified period of time. This leads to the 
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ultimate fact presumed that within this time period when the 

defendant had been operating his vehicle he had at least a blood 

alcohol content of .10%.

Presumptions in criminal statutes are not considered conclusive and do 

not affect the burden of proof, but shift the burden of going forward 

with evidence to the defendant. 22A C.J.S. Criminal Law § 579 (1988 

Supp.). The State remains responsible for proving the necessary 

elements of the offense beyond a reasonable doubt. The defendant’s 

constitutional rights have not been destroyed. The presumption is 

rebuttable and the defendant may produce evidence to overcome the 

presumption.

[Chilcutt] argues that he is having to prove his innocence by producing 

evidence of post-accident consumption of alcohol. While the State 

must establish all the elements of the crime, it does not have the 

burden of negating all affirmative defenses which excuse or exempt the 

defendant. . . . .

Post-accident consumption of alcohol is regarded as an affirmative 

defense. . . . Thus, defendant had the burden of establishing this 

defense and none of his constitutional rights were destroyed thereby. 

Chilcutt, 544 N.E.2d at 858. 

[17]Then, a year later, in Hall, we held that, although Chilcutt properly determined the 

statute creating the presumption was constitutional, a jury instruction that tracked 

the language of the statute was erroneous because it ran the risk of misleading a 

jury into thinking the presumption was mandatory, rather than permissive:

We agree with our Third District that the language contained in the 

instruction does not create a conclusive presumption nor shift the 

burden of proof to defendant.

This is not to say, however, that the mandatory language of the statute 

and instruction compels the trier of fact to accept the presumption 

when the defendant falls somewhat short of rebutting it. The statute 

and instruction do not create and implement a conclusive 

presumption. They do however appear to contemplate a mandatory 

presumption.
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The instruction does not advise that the presumption is permissive in 

the sense that the jury may accept or reject it and is not compelled to 

find the presumed fact even if the defendant does not come forward 

with evidence to rebut the presumption. To the contrary, the 

instruction tracks the statute. The statute appears to create a 

mandatory presumption and states that the jury “shall presume” unless 

the presumption has been rebutted. 

Chilcutt v. State held that the statute does not excuse the State from 

proving each and every element of the offense beyond a reasonable 

doubt and that it does not shift the burden of proof as to any such 

element to the defendant. In light of this holding we are constrained to 

state that notwithstanding the phrase “shall presume,” the statute does 

not create a mandatory presumption. We hold therefore that even in a 

case in which the defendant does not rebut or attempt to rebut the 

presumption, the trier of fact is not compelled to find the presumed 

fact of blood alcohol content at the time of vehicle operation from the 

proved fact of blood alcohol content at the time of later testing. The 

jury is free to accept the presumption or not, just as it is free to do with 

other evidence.

Accordingly, the instruction although faithfully tracking the language 

of the statute, was subject to a mandatory interpretation which could 

have misled the jury with regard to its duty and prerogatives. 

In its brief the State acknowledges that the Unites States Supreme 

Court has repudiated mandatory presumptions and mandatory 

rebuttable presumptions. It also recognizes that the words “shall be 

presumed” have been held in other jurisdictions to create only a 

permissive presumption. 

We now hold likewise. Furthermore, we hold that an instruction 

which embraces the statute must clearly advise the jury that the 

presumption is only permissive. The instruction given in this case did 

not do so.

Accordingly, we reverse the judgment and remand for a new trial. 

Hall, 560 N.E.2d at 563-64 (internal citations omitted). 

[18]We have reaffirmed the reasoning of Chilcutt and Hall on a number of occasions. 

See Disbro v. State, 791 N.E.2d 774, 778 (Ind. Ct. App. 2003) (finding no error in 
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jury instruction that included statutory language but also informed jury the 

presumption could be rejected even if not rebutted by other evidence), trans. denied; 

Finney v. State, 686 N.E.2d 133, 135 (Ind. Ct. App. 1997) (statute creating 

presumption, Ind. Code § 9-30-6-15, is constitutional); Thompson v. State, 646 

N.E.2d 687, passim (Ind. Ct. App. 1995) (no error when jury instructed the 

presumption created by Ind. Code § 9-30-6-15 was both rebuttable and permissive, 

such that jury could reject the presumption), trans. denied; Regan v. State, 950 

N.E.2d 640, 645 (Ind. Ct. App. 1992) (Ind. Code § 9-11-4-15 is constitutional, and 

jury instructions as a whole created no error when language of Ind. Code § 9-11-4-

15 supplemented with language informing jury that BAC alone was insufficient to 

prove the element of ‘intoxication’ and that defendant had no burden to present 

evidence to rebut the BAC evidence); Sturgeon, 575 N.E.2d at 681 (jury instruction 

that tracked language of Ind. Code § 9-11-4-15 was constitutional error). 

[19]As the instruction given to Pattison’s jury is essentially the same instruction given 

in Hall, that instruction was erroneous.

4

 See Sturgeon, 575 N.E.2d at 681 

(instruction tracking statutory language created constitutional error); Hall, 560 

 

4 The trial court indicated “we have, in the pattern instructions, things that are helpful, but I don’t think that 

they’re really, um, simple to follow.” (Tr. at 80.) Unlike the constitutionally infirm instruction that was 

given to the jury, the pattern jury instruction on this point of law at the time of Pattison’s trial explained: “It 

creates an inference that the Defendant was sufficiently under the influence of alcohol to lessen Defendant’s 

driving ability so as to be intoxicated within the meaning of the law. This inference is not conclusive. You 

may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.117. In 2014, the instruction was updated to 

read: “[Y]ou may infer that the Defendant was sufficiently under the influence of alcohol to lessen 

Defendant’s driving ability so as to be intoxicated within the meaning of the law. You are not required to 

make this inference. You may accept it or reject it.” Ind. Pattern Jury Instr. – Crim No. 7.4240. As such, 

the Pattern Jury Instruction was, and is, a more constitutionally appropriate statement of the inference 

allowed.
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N.E.2d at 564 (“instruction which embraces the statute must clearly advise the jury 

that the presumption is only permissive”).

[20]A single erroneous instruction, however, need not render the trial court’s entire 

charge to the jury an abuse of discretion if other instructions correct the error 

created by the erroneous instruction. See, e.g., Regan, 950 N.E.2d at 645 (no error 

when statutory language supplemented with other language). The State points out 

that the jury received a “Presumption of Innocence” instruction that explained the 

State was responsible to prove “each element of the crime charged . . . [and] Mr. 

Pattison was not required to present any evidence to prove his innocence or to 

prove or explain anything.” (Appellee’s Br. at 11.) However, that instruction 

about the presumption of innocence does not correct the improper presumption 

created by the statute-based instruction at issue. See Sturgeon, 575 N.E.2d 682 

(“General instructions on the State’s burden of persuasion and the defendant’s 

presumption of innocence are not inconsistent with the burden-shifting 

presumption and therefore do nothing to lessen the harm.”). Accordingly the 

challenged instruction created constitutional error. See id. (holding instruction 

created error). 

[21]Nevertheless, as the State contends, an instruction that impermissibly shifts the 

burden of proof “does not . . . automatically require the reversal of an otherwise 

valid conviction” because even instructions that improperly shift the burden of 

proof can be harmless. Id. Instructional error does “not require reversal of a 

conviction where, after review of the entire record, the reviewing court concludes 

the error was harmless beyond a reasonable doubt.” Collins, 567 N.E.2d at 801. 
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[22]Unlike Regan, 950 N.E.2d 640, in which the defendant was charged with a version 

of driving while intoxicated that permitted the jury to find the defendant guilty 

based on his physical characteristics and behavior, Pattison was charged only with 

driving while intoxicated with an ACE over .08%. As Pattison did not challenge 

that he was driving, the presumption created by the erroneous instruction shifted 

the burden of proof to Pattison on the only contested element in the case. In this 

situation, we cannot say the instructional error was harmless. See, e.g., Sturgeon, 

575 N.E.2d at 683 (unable to hold error harmless where evidence of Sturgeon’s 

“appearance of intoxication” was inconclusive and conflicting). Accordingly, we 

must reverse.

Conclusion

[23]Because the error caused by the court’s constitutionally infirm jury instruction was 

neither corrected by the court’s other instructions nor harmless based on the other 

evidence presented, we must reverse Pattison’s conviction. 

[24]Reversed.

Robb, J., and Mathias, J., concur.