Daniel Cummings v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Feb 11 2015, 8:48 am 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.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Dori Newman Gregory R. Zoeller Newman & Newman, PC Attorney General of Indiana Noblesville, Indiana Katherine Modesitt Cooper Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Daniel Cummings, February 11, 2015

Appellant-Defendant, Court of Appeals Cause No. 29A02-1407-CR-509 v. Appeal from the Hamilton Superior Court. The Honorable Gail Bardach, Judge. State of Indiana, Cause No. 29D06-1306-CM-4740 Appellee-Plaintiff.

Barteau, Senior Judge

Statement of the Case [1] Daniel Cummings appeals his conviction by jury of Operating a Vehicle While

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Intoxicated as a Class C misdemeanor.1 We affirm.

Issue [2] The sole issue for our review is whether there is sufficient evidence to support

Cummings’ conviction.

Facts and Procedural History [3] On June 20, 2013, at approximately 9:15 a.m., Carmel Police Department

Officer Chad Amos stopped Cummings for speeding. As he approached the

car, Officer Amos smelled a strong odor of burnt marijuana emanating from the

vehicle. When Officer Amos asked Cummings for his registration, Cummings

shuffled through a stack of papers in his glove box unable to find it. Officer

Amos saw the registration in the papers and pointed it out to Cummings.

Officer Amos noticed that Cummings’ speech was slurred and repetitive, and

his eyes were red, glassy, and bloodshot. [4] Officer Amos asked Cummings to exit the vehicle, where the officer found a

half-smoked marijuana cigarette directly to the left of the driver’s seat. As he

prepared to administer field sobriety tests, Officer Amos performed a routine

check of Cummings’ mouth for foreign objects and found a “green plant

material floating all around in his mouth, stuck to his teeth, and coating the

1 Ind. Code § 9-30-5-2 (2001).

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inside of his mouth as if he had just chewed a plant material.” Tr. p. 140. The

plant material looked and smelled like marijuana. [5] Thereafter, Officer Amos administered several field sobriety tests. During the

horizontal gaze nystagmus test, Cummings’ eyes did not converge or cross.

This is a sign of marijuana use because certain drugs such as cannabis do not

permit eye convergence. In addition, Officer Amos observed that Cummings

had body tremors. Cummings failed both the one-leg stand and the nine-step

walk and turn test because he stepped off the line, missed the heel to toe, used

his arms for balance, and took eight steps instead of nine. [6] When Cummings refused to submit to a chemical test, Officer Amos obtained a

search warrant for Cummings’ blood, which was drawn at the Hamilton

County Jail. Lab tests revealed 3.9 nanograms of THC per milliliter of blood,

which is a level where one would expect to see impairment. [7] A jury convicted Cummings of possession of marijuana as a Class A

misdemeanor and operating a vehicle while intoxicated as a Class C

misdemeanor. Cummings appeals his conviction for operating a vehicle while

intoxicated as a Class C misdemeanor.

Discussion and Decision [8] Cummings argues that there is insufficient evidence to support his conviction.

Specifically, his sole contention is that there is insufficient evidence that he was

intoxicated.

Court of Appeals of Indiana | Memorandum Decision 29A02-1407-CR-509 | February 11, 2015 Page 3 of 5 [9] In reviewing the sufficiency of the evidence, this Court will affirm the

convictions if the probative evidence and reasonable inferences to be drawn

therefrom could allow a reasonable trier of fact to find the defendant guilty

beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

On appeal, we do not reweigh the evidence or judge the credibility of witnesses.

Fields v. State, 679 N.E.2d 898, 900 (Ind. 1997). Rather, we look only to the

evidence and reasonable inferences supporting the judgment to determine

whether the trier of fact could reasonably reach the conclusion. Id. If there is

substantial evidence of probative value supporting a conviction, this Court will

not set the judgment aside. Id. [10] Indiana Code section 9-30-5-2 provides that a person who operates a vehicle

while intoxicated commits a Class C misdemeanor. Proof of intoxication may

be established by showing impairment. Perkins v. State, 812 N.E.2d 836, 841

(Ind. Ct. App. 2004). Evidence of the following can establish impairment: 1)

impaired attention and reflexes; 2) watery or bloodshot eyes; 3) the odor of

marijuana; 4) unsteady balance; 5) failure of field sobriety tests; and 6) slurred

speech. See Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999). [11] Here, our review of the evidence reveals that Cummings exhibited impaired

attention and reflexes as evidenced by his decreased manual dexterity and

fumbling through papers trying to find his car registration. He also exhibited

red, glassy, and bloodshot eyes as well as slurred and repetitive speech. Officer

Amos smelled the strong odor of burning marijuana emanating from the

vehicle, and Cummings failed several field sobriety tests, including the nine-step

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walk and turn test and the one-leg stand test. This is sufficient evidence from

which a jury could have concluded beyond a reasonable doubt that Cummings

was intoxicated at the time Officer Amos stopped him for speeding. [12] Affirmed. [13] Baker, J., and Riley, J., concur.

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