Edgar Duncan v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Feb 26 2013, 8:51 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case. CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILLIAN C. KEATING GREGORY F. ZOELLER
CATHY M. BROWNSON Attorney General of Indiana
Coots, Henke & Wheeler, P.C.
Carmel, Indiana RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
EDGAR DUNCAN, )
)
Appellant-Defendant, )
)
vs. ) No. 29A04-1209-CR-450
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Gail Bardach, Judge
Cause No. 29D06-1205-CM-4461
February 26, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
NAJAM, Judge
STATEMENT OF THE CASE
Edgar Duncan appeals his conviction for operating a vehicle while intoxicated, as
a Class C misdemeanor, following a bench trial. Duncan presents two issues for our
review:
1. Whether the trial court abused its discretion when it permitted a
police officer to testify that, in his opinion, Duncan was intoxicated.
2. Whether the State presented sufficient evidence to sustain his
conviction.
We affirm.
FACTS AND PROCEDURAL HISTORY
At approximately 10:30 a.m. on February 24, 2012, Duncan was driving on
Cumberland Road in Noblesville when he turned onto Conner Street without using a turn
signal. Noblesville Police Department Officer Eric Cunningham was patrolling the area
in his vehicle when he observed Duncan make the turn without signaling, and Officer
Cunningham proceeded to follow Duncan. Officer Cunningham then observed Duncan
turn into a McDonald’s parking lot without using a turn signal. Officer Cunningham then
initiated a traffic stop in the parking lot.
Officer Cunningham approached Duncan and observed that Duncan’s eyes were
“slightly watery” and his speech was “slow and thick.” Transcript at 14-15. In addition,
Duncan had “some difficulty” getting his license out of his wallet. Id. at 14. Officer
Cunningham asked Duncan whether he had had anything to drink or had taken any
medication. Duncan responded that he had taken some anti-anxiety medication “on an
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empty stomach[.]” Id. at 16. And Duncan stated that “he thought that was a mistake.”
Id.
Officer Cunningham proceeded to conduct three field sobriety tests on Duncan
while he was still sitting in his vehicle. After Duncan failed all three tests, Officer
Cunningham asked Duncan to get out of his vehicle to undergo additional testing “to
determine whether or not he was impaired[.]” Id. at 19. Once outside the car, Duncan
failed three more field sobriety tests. Because Officer Cunningham did not smell an odor
of alcohol on Duncan, he did not suspect that Duncan was intoxicated on alcohol.
Instead, Officer Cunningham asked Officer Joshua Blocher, a drug recognition expert
who had arrived at the scene, to conduct a drug recognition evaluation (“DRE”) on
Duncan.
Officer Cunningham transported Duncan to the Hamilton County Jail. En route,
Duncan told Officer Cunningham that he had taken one milligram of Risperdal 1 that
morning. Duncan further stated that he “had a prescription [for Risperdal] in the past”
but he had “run out” and had taken a pill “not prescribed by a doctor.” Transcript at 30.
Once at the jail, Officer Blocher conducted the DRE on Duncan, which involved several
tests. Based on Duncan’s performance on the tests and Duncan’s statements, Officer
Blocher concluded that Duncan was “under the influence of a depressant” which had
impaired his driving. Id. at 57.
1
Risperdal is the brand name of a medication known as risperidone.
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The State charged Duncan with operating a vehicle while intoxicated, as a Class C
misdemeanor. Following a bench trial, the trial court found Duncan guilty as charged
and entered judgment of conviction and sentence accordingly. This appeal ensued.
DISCUSSION AND DECISION
Issue One: Admission of Officer Cunningham’s Testimony
Duncan first contends that the trial court abused its discretion when it permitted
Officer Cunningham to testify that Duncan was intoxicated. A trial court’s decision to
admit or exclude evidence is reviewed for an abuse of discretion. McVey v. State, 863
N.E.2d 434, 440 (Ind. Ct. App. 2007), trans. denied. An abuse of discretion occurs if a
trial court’s decision is clearly against the logic and effect of the facts and circumstances
before the court. Id.Duncan maintains that, because Officer Cunningham testified that he “had no
training in recognizing the impact of drugs, anti-anxiety medications, or mental health on
impairment assessment”, his opinion “could not be supported by a factual basis.” Brief
of Appellant at 10-11. And Duncan asserts that Officer Cunningham’s “opinion of
intoxication was not rationally based on the facts and thus did not comport with the
requirements of Indiana Evidence Rule 701.”2 Id. at 11. Finally, Duncan contends that
“such opinion without foundation served only to improperly raise a legal conclusion that
Duncan was guilty of operating a vehicle while intoxicated.” Id. We cannot agree.
Indiana Code Section 9-13-2-86 defines intoxicated as under the influence of
alcohol or drugs “so that there is an impaired condition of thought and action and the loss
2
Indiana Evidence Rule 701 provides that opinions by lay witnesses are limited to those opinions
or inferences which are (a) rationally based on the perception of the witness and (b) helpful to a clear
understanding of the witness’s testimony or the determination of a fact in issue.
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of normal control of a person’s faculties.” It is well settled in Indiana law that “a non-
expert witness may offer an opinion upon intoxication, and a conviction may be sustained
upon the sole testimony of the arresting officer.” See Wright v. State, 772 N.E.2d 449,
460 (Ind. Ct. App. 2002). Impairment can 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.
Duncan’s contention that only officers trained in drug recognition evaluation can
testify regarding intoxication by drugs is simply without merit. Here, Officer
Cunningham observed that Duncan had watery eyes, “slow and thick” speech, and
impaired dexterity; was unsteady on his feet; and failed several field sobriety tests.
Officer Cunningham testified that he “felt that [Duncan] was” intoxicated based on those
observations. Transcript at 10. The trial court did not abuse its discretion when it
permitted that testimony.
Issue Two: Sufficiency of the Evidence
Duncan also contends that the State presented insufficient evidence to support his
conviction. When the sufficiency of the evidence to support a conviction is challenged,
we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm
if there is substantial evidence of probative value supporting each element of the crime
from which a reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of
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the fact-finder to determine whether the evidence in a particular case sufficiently proves
each element of an offense, and we consider conflicting evidence most favorably to the
trial court’s ruling. Id. at 906.
Duncan maintains that the evidence is insufficient to show that he was intoxicated
as contemplated in Indiana Code Section 9-30-5-2. As used in that statute, “intoxicated”
is defined by Indiana Code Section 9-13-2-86 to mean
under the influence of:
(1) alcohol;
(2) a controlled substance (as defined in IC 35-48-1);
(3) a drug other than alcohol or a controlled substance;
(4) a substance described in [Indiana Code Section] 35-46-6-2 or [Indiana
Code Section] 35-46-6-3; or
(5) a combination of substances described in subdivisions (1) through (4);
so that there is an impaired condition of thought and action and the loss of
normal control of a person’s faculties.
“[I]mpairment of any of the three abilities necessary for the safe operation of a
vehicle[, thought, action, or normal control of a person’s faculties,] renders the operation
of a vehicle dangerous.” Curtis v. State, 937 N.E.2d 868, 873 (Ind. Ct. App. 2010)
(emphasis in original).
[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 within the meaning of
[Indiana Code Section] 9-30-5-2. Indeed, one might argue that impairment
of any of the three necessarily implies impairment of the others.
Id. (citations omitted) (emphasis in original). In other words, “impairment is established
by proof of certain behaviors and traits evincing impairment, irrespective of whether that
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evidence established particularized impairment of action, thought, and loss of control of
faculties.” Id. at 873-74 (emphasis in original).
Here, Officer Cunningham observed Duncan make two turns in his vehicle
without using a turn signal. Officer Cunningham then observed that Duncan had
difficulty getting his license out of his wallet; had “slow and thick” speech; had watery
eyes; and failed several field sobriety tests. Duncan admitted to having ingested
Risperdal, a prescription anti-anxiety medication, on an empty stomach. And Officer
Blocher determined, after a battery of tests, that Duncan was impaired. Indeed, Duncan
admitted to Officer Blocher that he had taken someone else’s Risperdal and that “he
shouldn’t have been driving.” Transcript at 56. The evidence is sufficient to support
Duncan’s conviction.
Still, Duncan contends that his “admission of taking a 1 milligram dose of
Risperidone and his performance on field or DRE testing is not enough to satisfy the
intoxication element.” Brief of Appellant at 13. Duncan states further that “[t]here
simply was no link made between Duncan’s admission to taking Risperidone and the
outcome of the field testing that sufficiently proved intoxication.” Id. at 15.
First, to the extent Duncan maintains that the State was required to show evidence
of Risperidone in his blood, it is well settled that circumstantial evidence is sufficient to
prove operating a vehicle while intoxicated. See Jellison v. State, 656 N.E.2d 532, 535
(Ind. Ct. App. 1995). Further, again, Duncan admitted that he had ingested Risperidone,
and the evidence shows that that medication is a “[central nervous system] depressant.”
Transcript at 57. And Officer Blocher testified that Duncan’s test result in the
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horizontal gaze nystagmus test was “consistent with someone [who is] under the
influence of a depressant.” Id. Duncan’s admission, when combined with the fact that he
failed the field sobriety tests and his physical symptoms, indicates that he suffered from a
condition of thought and action and possibly the loss of normal control of his faculties.
Such satisfied the definition of “impairment” under Indiana Code Section 9-13-2-86. The
evidence is sufficient to prove beyond a reasonable doubt that Duncan operated a vehicle
while intoxicated.
Affirmed.
FRIEDLANDER, J., and BRADFORD, J., concur.
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