Tawanda Nyanhongo v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be
Jun 06 2019, 6:13 am
regarded as precedent or cited before any
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brian A. Karle Curtis T. Hill, Jr.
Ball Eggleston, PC Attorney General of Indiana
Lafayette, Indiana
Samantha M. Sumcad
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Tawanda Nyanhongo, June 6, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2539
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Christina
Appellee-Plaintiff Klineman, Judge
Trial Court Cause No.
49G17-1804-F6-12536
May, Judge.
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[1] Tawanda G. Nyanhongo appeals his conviction of Level 6 felony operating a
vehicle while intoxicated with a previous conviction within five years. 1
Nyanhongo argues the State presented insufficient evidence to sustain his
conviction. 2 We affirm and sua sponte remand for correction of the Abstract of
Judgment.
Facts and Procedural History
[2] On April 13, 2018, Nyanhongo and Yazmin Robinson went to the park to grill
and eat dinner. During dinner, Nyanhongo drank a couple beers, so Robinson
drove them to her house. While there, Nyanhongo had trouble walking. After
ten to fifteen minutes at the house, Nyanhongo wanted to go to the liquor store.
Robinson offered to drive, but they left Robinson’s house with Nyanhongo
driving the vehicle. Robinson tried to convince Nyanhongo to stop driving.
She called 911. She also made multiple attempts to pull the keys from the
ignition, causing the vehicle to swerve.
[3] At approximately 11:30 p.m., Officer Harris was on his way to investigate
Robinson’s 911 call when he observed Nyanhongo’s vehicle make a left turn,
cross a double yellow line, and partially leave the lane of traffic. Nyanhongo
corrected the vehicle’s path. Officer Harris then saw Nyanhongo’s vehicle
1
Ind. Code §§ 9-30-5-2(a), 9-30-5-3(a)(1).
2
Nyanhongo was also convicted of Class B misdemeanor possession of marijuana. Ind. Code § 35-48-4-11.
He received a suspended sentence of 180 days. Nyanhongo does not appeal that conviction or sentence, and
accordingly we need not elaborate the facts and procedure related to that crime.
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swerve across the double yellow line a second time, and he initiated a traffic
stop. Nyanhongo told Officer Harris that Robinson was trying to pull the keys
out of the ignition. Officer Harris asked Nyanhongo to exit the vehicle and
noticed a strong smell of alcohol. Nyanhongo’s eyes were glassy and
bloodshot.
[4] Officer Alexander Redding also arrived at the scene. He noticed Nyanhongo
leaning against the vehicle. Officer Redding administered a series of field
sobriety tests. He conducted the horizontal gaze nystagmus test at the scene,
and Nyanhongo failed that test. Officer Redding then transferred Nyanhongo
to the Speedway Police Department because it was dark and raining at the
scene. There, Officer Redding administered the walk and turn test and the one-
legged stand test. Nyanhongo failed the walk and turn test but passed the one-
legged stand test. Officer Redding concluded there was probable cause to
invoke Indiana’s Implied Consent Law and offered Nyanhongo a chemical
breath test. Nyanhongo refused the chemical breath test, so Officer Redding
obtained a warrant authorizing a blood draw. The sample showed
Nyanhongo’s whole body blood alcohol concentration to be in the range of .059
to .071% (0.059 to 0.071 g/100mL). (Tr. Vol. II at 32-33.)
[5] The State charged Nyanhongo with Class A misdemeanor operating a vehicle
while intoxicated endangering a person, pursuant to Indiana Code section 9-30-
5-2. The State also charged Nyanhongo with a Level 6 Felony enhancement of
that operating charge based on Nyanhongo having another conviction of
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operating while intoxicated within the prior five years, pursuant to Indiana
Code section 9-30-5-3(a)(1). 3
[6] The court found Nyanhongo guilty of Level 6 felony operating a vehicle while
intoxicated. The court sentenced Nyanhongo to concurrent terms of 365 days
for operating a vehicle while intoxicated and 180 days for possession of
marijuana. After giving Nyanhongo credit for time served, the trial court
suspended the remainder of his sentence.
Discussion and Decision
Sufficiency of the Evidence
[7] Our standard of review for assessing sufficiency of the evidence is well-settled.
We look only at the probative evidence and the reasonable inferences
supporting the verdict. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We
neither reweigh the evidence nor assess the credibility of the witnesses. Id. We
affirm the trial court unless no reasonable fact-finder could find the elements of
the crime proven beyond a reasonable doubt. Id.
[8] Operating a vehicle while intoxicated with a previous conviction in the last five
years is a Level 6 felony. Ind. Code § 9-30-5-2(a) (operating while intoxicated);
Ind. Code § 9-30-5-3(a)(1) (enhancement for prior conviction). Nyanhongo
3
The State also charged Nyanhongo with Class A misdemeanor domestic battery, but it dismissed that
charge prior to trial.
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does not dispute he had another conviction within the prior five years. Instead
he argues the State presented insufficient evidence of intoxication.
[9] Our legislature defined intoxication as “under the influence of: (1) 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. This statute does not
require separate proof of impairment of action, impairment of thought, and loss
of control of faculties. Curtis v. State, 937 N.E.2d 868, 873-874 (Ind. Ct. App.
2010). Rather, “impairment is established by proof of certain behaviors and
traits evincing impairment, irrespective of whether that evidence established
particularized impairment of action, thought, and loss of control of faculties.”
Id. (emphasis in original).
[10] Nyanhongo asks us to reconsider Curtis and hold the State must demonstrate
separately proof of (1) impairment of action, (2) impairment of thought, and (3)
loss of control of faculties. We decline to do so. For one, our reasoning in
Curtis is sound. As we explained, “a person’s unfitness to operate a vehicle, i.e.,
his impairment, is to be determined by considering his capability as a whole,
not component by component, such that impairment of any of the three abilities
necessary for the safe operation of a vehicle equals impairment.” Id. at 873.
Second, we will follow our previous decisions unless provided with a strong
justification not to do so. Lincoln Utils., Inc. v. Office of Util. Consumer Counselor,
661 N.E.2d 562, 565 (Ind. Ct. App. 1996), reh’g denied, trans. denied.
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[11] Third, Nyanhongo’s claim would fail even if we were to adopt his suggested
interpretation of the statute. The State can demonstrate impairment by
showing: “(1) the consumption of a 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.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans.
denied. Robinson observed Nyanhongo drink alcohol and have trouble walking
before he started driving. Nyanhongo’s eyes were glassy and bloodshot. Both
Officer Harris and Officer Redding smelled alcohol on him. Nyanhongo had to
lean against the vehicle for support. Nyanhongo failed two field sobriety tests,
the horizontal gaze nystagmus test and the walk and turn test. This evidence
demonstrates impairment of Nyanhongo’s actions, impairment of Nyanhongo’s
thoughts, and loss of control of his faculties. See Ind. Code § 9-13-2-86
(definition of intoxicated).
[12] Nyanhongo notes his blood alcohol concentration was below .08. However,
the offense with which he was charged does not require proof of a specified
blood alcohol content. Compare Ind. Code § 9-30-5-2 (operating while
intoxicated) with Ind. Code § 9-30-5-1 (operating with blood alcohol
concentration of .08 or higher). Sufficient evidence supports Nyanhongo’s
conviction. See Burnett v. State, 74 N.E.3d 1221, 1226 (Ind. Ct. App. 2017)
(holding defendant’s slow and slurred speech, glassy eyes, and alcohol smell on
breath, combined with officer’s observations at the scene, were sufficient
evidence of intoxication).
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Abstract of Judgment
[13] Sua sponte, we observe the Abstract of Judgment does not accurately reflect the
judgment announced at the conclusion of trial. 4 At trial, after Nyanhongo
conceded the required prior conviction, the court indicated it would enter the
conviction as a Level 6 felony. (See Tr. Vol. II at 65.) However, the Abstract
lists the charged crime for Count I as “9-30-5-2(a)(b)/F6: Operating a Vehicle
While Intoxicated: Endangering a Person.” (App. Vol. 2 at 11.) It lists the
statutory citation for the charge as “9-30-5-2(a)(b)” and notes disposition as
“Finding of Guilty Lesser Included.” 5 (Id.) The Abstract of Judgment contains
no reference to Indiana Code section 9-30-5-3(a)(1), which permitted the Class
C misdemeanor crime to be enhanced to a Level 6 felony conviction.
Therefore, we remand for the trial court to amend the Abstract of Judgment to
reflect Nyanhongo is guilty of Level 6 felony operating a vehicle while
intoxicated with a previous conviction, in violation of Indiana Code section 9-
30-5-3(a)(1). See Borum v. State, 951 N.E.2d 619, 632 (Ind. Ct. App. 2011)
(remanding for trial court to correct the abstract of judgment).
Conclusion
4
Nor, as written, does it support the one-year sentence imposed for Count I.
5
“Finding of Guilty Lesser Included” is a reference to the trial court’s refusal to find Nyanhongo endangered
a person as required for the Class A misdemeanor conviction under Indiana Code section 9-30-5-2(b).
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[14] We affirm Nyanhongo’s conviction for operating a vehicle while intoxicated
because the State presented sufficient evidence to support the conviction.
However, we remand for the trial court to amend the Abstract of Judgment to
accurately reflect the verdict announced at trial.
Affirmed and remanded.
Mathias, J., and Brown, J., concur.
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