David A. Kinder v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any FILED court except for the purpose of establishing Oct 29 2018, 9:20 am

the defense of res judicata, collateral CLERK estoppel, or the law of the case. Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE David M. Payne Curtis T. Hill, Jr. Ryan & Payne Attorney General of Indiana Marion, Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

David A. Kinder, October 29, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-654 v. Appeal from the Grant Superior Court State of Indiana, The Honorable Warren Haas, Appellee-Plaintiff. Judge Trial Court Cause No. 27D03-1704-CM-51

Friedlander, Senior Judge. Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018 Page 1 of 4 [1] A few minutes after midnight on April 12, 2017, Indiana State Police Trooper

Steven Glass was patrolling Grant County when he began following a vehicle

after the driver failed to signal while pulling out of a gas station. The vehicle,

driven by Kinder, wove back and forth between the center line and fog line, and

Kinder failed to timely signal before making an abrupt right turn. Trooper

Glass, a field sobriety instructor, initiated a traffic stop. [2] Upon approaching the vehicle, Trooper Glass began talking to Kinder and

noticed Kinder’s slurred speech and glassy, bloodshot eyes. Kinder was

lethargic and fumbled through his wallet to retrieve his driver’s license.

Trooper Glass detected the odor of alcoholic beverage emanating from the

vehicle and asked Kinder if he had been drinking, to which Kinder responded

that he had had a couple of beers thirty minutes before. Suspecting impairment,

Trooper Glass asked Kinder to exit the vehicle and administered three field

sobriety tests (“FSTs”). Kinder failed all three FSTs and had difficulty

maintaining his balance at times. [3] Following the failed FSTs, Trooper Glass attempted to administer a portable

breath test but was unable to do so due to discovering marijuana in Kinder’s

mouth. Two additional FSTs were then administered, both of which Kinder

also failed. Kinder was transported to the Grant County Jail, where a certified

breath test determined his blood alcohol content (“BAC”) to be 0.074. [4] On April 21, the State charged Kinder with one count of Class C misdemeanor

operating a vehicle while intoxicated. Following a bench trial held on February

Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018 Page 2 of 4

28, 2018, the trial court found Kinder guilty as charged and sentenced him to

sixty days of incarceration, with two days executed and the remainder

suspended to probation. [5] Kinder contends that the State failed to produce sufficient evidence to establish

that he was intoxicated while operating his vehicle. When reviewing the

sufficiency of the evidence, we do not reweigh evidence or assess witness

credibility. Fields v. State, 888 N.E.2d 304 (Ind. Ct. App. 2008). We consider

the evidence most favorable to the factfinder’s decision and the reasonable

inferences drawn therefrom. Id. We will affirm if there is probative evidence

from which a reasonable factfinder could have found the defendant guilty

beyond a reasonable doubt. Id. [6] “Intoxicated” is defined as being “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) (2013). Proof of intoxication may

be established by showing impairment and does not require proof of any

particular BAC. Ballinger v. State, 717 N.E.2d 939 (Ind. Ct. App. 1999).

Impairment can be established by evidence showing (1) the consumption of

significant amounts 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 FSTs, or (7) slurred speech. Id. [7] Kinder does not contest that he was operating the vehicle, only that he was

intoxicated while doing so. We conclude that there was ample evidence of

Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018 Page 3 of 4

impairment from which the trial court could have reasonably found beyond a

reasonable doubt that Kinder was intoxicated. Kinder admitted that he had

been drinking, and Trooper Glass detected the odor of alcoholic beverage

coming from inside the vehicle. Kinder’s eyes were bloodshot and his speech

was slurred. Kinder’s poor manual dexterity, as he fumbled through his wallet

to retrieve his driver’s license, displayed impaired reflexes. Finally, Kinder

failed all five FSTs and had difficulty maintaining his balance while they were

administered. Kinder argues that the proof of intoxication was insufficient by

pointing to the fact that his BAC was below the 0.08 legal limit as set forth in

Indiana Code section 9-30-5-1(a)(2) (2001), which provides that “[a] person

who operates a vehicle with an alcohol concentration equivalent to at least

eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15)

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

a Class C misdemeanor.” Kinder, however, was not charged under Indiana

Code section 9-30-5-1, and we have previously noted that proof of intoxication

does not require proof of BAC for the offense of which Kinder was convicted.

See Ballinger, 717 N.E.2d 939. Kinder has failed to establish that the State

produced insufficient evidence to support the trial court’s determination that he

was intoxicated while operating a vehicle. [8] Judgment affirmed.

Riley, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018 Page 4 of 4