David A. Kinder v. State of Indiana (mem. dec.) ( 2018 )

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
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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
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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.
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