Demarkco Ray Arthur v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Feb 18 2016, 9:15 am

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 William Byer, Jr. Gregory F. Zoeller Byer & Byer Attorney General of Indiana Anderson, Indiana Karl M. Scharnberg Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Demarkco Ray Arthur, February 18, 2016 Appellant-Defendant, Court of Appeals Cause No. 48A02-1508-CR-1088 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-1406-FD-965

Barnes, Judge. Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016 Page 1 of 5

Case Summary [1] Demarkco Arthur appeals his convictions for Class A misdemeanor operating a

vehicle while intoxicated endangering a person and Class D felony operating a

vehicle while intoxicated. We affirm in part and vacate in part.

Issue [2] Arthur raises one issue, which we restate as whether the evidence is sufficient to

sustain his convictions.

Facts [3] On May 30, 2014, Indiana State Trooper Earnest Paige and his field training

officer Indiana State Trooper Brad Quakenbush were patrolling at 1:40 a.m. in

Anderson when they noticed Arthur’s vehicle repeatedly cross the double

yellow centerline of the roadway. The third time that the vehicle crossed the

centerline, it almost struck an oncoming vehicle. Trooper Paige initiated a

traffic stop, and he saw that the driver, Arthur, had his head slumped onto his

chest. Trooper Paige asked for Arthur’s driver’s license and registration, and

Arthur said, “I just want to go home.” Tr. p. 81. Arthur fumbled through

numerous cards and was unable to locate his license, and the passenger had to

locate the registration. Arthur said that he was coming from the “local bar,”

and Trooper Paige “strongly smelled the odor of alcohol.” Id. at 82-83. When

asked how much he had to drink, Arthur said, “Not much.” Id. at 83. Arthur

had bloodshot and glassy eyes. Trooper Paige had Arthur get out of his vehicle,

and Arthur had to keep his hand on the car to maintain his balance. Arthur

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then performed the three standard field sobriety tests—the horizontal gaze and

nystagmus, the walk and turn, and the one leg stand—and he failed all three

tests. Arthur then refused to submit to a chemical test. [4] The State charged Arthur with Class A misdemeanor operating a vehicle while

intoxicated endangering a person and Class D felony operating a vehicle while

intoxicated with a prior conviction. A jury found Arthur guilty of Class A

misdemeanor operating a vehicle while intoxicated with a prior conviction.

Arthur then pled guilty to having a prior conviction, and the trial court entered

a conviction for Class D felony operating a vehicle while intoxicated. The trial

court sentenced him to 1095 days with 714 days on home detention and the

remaining 365 days suspended to probation. Arthur now appeals.

Analysis [5] Arthur argues that the evidence is insufficient to sustain his convictions. When

reviewing the sufficiency of the evidence needed to support a criminal

conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

supporting the judgment and any reasonable inferences that can be drawn from

such evidence.” Id. We will affirm if there is substantial evidence of probative

value such that a reasonable trier of fact could have concluded the defendant

was guilty beyond a reasonable doubt. Id. [6] A person who operates a vehicle while intoxicated in a manner that endangers a

person commits Class A misdemeanor operating a vehicle while intoxicated.

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Ind. Code § 9-30-5-2(b). To support the Class D felony conviction, the State

was required to prove that Arthur operated a vehicle while intoxicated having

been previously convicted of operating while intoxicated within the preceding

five years. Ind. Code § 9-30-5-3. Arthur claims that the State failed to prove

that he was intoxicated. [7] Indiana law defines “intoxicated” as “under the influence of . . . alcohol . . . so

that there is an impaired condition of thought and action and the loss of normal

control of a person’s faculties.” Ind. Code § 9-13-2-86(1). Impairment may be

established by evidence of “(1) the consumption of significant amount of

alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4)

the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field

sobriety tests; and (7) slurred speech.” Woodson v. State, 966 N.E.2d 135, 142

(Ind. Ct. App. 2012), trans. denied. [8] The State presented evidence that Arthur repeatedly crossed the centerline and

almost hit another vehicle. When the officers initiated a traffic stop, Arthur

said that he had had just left the local bar, and Trooper Paige could smell

alcohol. Arthur fumbled while attempting to locate his driver’s license and

registration. His eyes were bloodshot and glassy, and after getting out of the

vehicle, he had to steady himself by placing a hand on his vehicle. Arthur failed

all three field sobriety tests. On appeal, Arthur argues that the evidence is

insufficient because of some discrepancies between the officers’ testimony and

the police reports. Arthur also argues that he swerved as a result of cigarette

ash being dropped on his leg and that his balance was affected by an old injury.

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These arguments are requests for us to reweigh the evidence and judge the

credibility of the witnesses, which we cannot do. Bailey, 907 N.E.2d at 1005.

We conclude that the evidence is sufficient to show that Arthur was

intoxicated. [9] We sua sponte note that Arthur’s convictions for both Class A misdemeanor

operating a vehicle while intoxicated and Class D felony operating a vehicle

while intoxicated violate the prohibition against double jeopardy. See Puckett v.

State, 843 N.E.2d 959, 964 (Ind. Ct. App. 2006) (concluding that merger was

insufficient and remanding with instructions to vacate Class C misdemeanor

operating while intoxicated conviction where it was a factually lesser included

offense of Class D felony operating while intoxicated conviction). We conclude

that the convictions violate double jeopardy and therefore remand with

instructions to vacate the Class A misdemeanor conviction. As Arthur’s

sentences were ordered to be served concurrently, the vacation of his Class A

misdemeanor conviction does not affect the aggregate term of his sentence.

Conclusion [10] The evidence is sufficient to sustain Arthur’s conviction for Class D felony

operating a vehicle while intoxicated. Arthur’s conviction for Class A

misdemeanor operating a vehicle while intoxicated violates the prohibition

against double jeopardy. We affirm in part and vacate in part. [11] Affirmed in part and vacated in part.

Robb, J., and Altice, J., concur. Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016 Page 5 of 5