Daniel Cummings v. State of Indiana (mem. dec.) ( 2015 )

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.
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[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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