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.
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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.
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