      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                        FILED
      this Memorandum Decision shall not be
                                                                               Apr 23 2019, 10:08 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
      Marcelino Lopez                                          Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Evan M. Comer
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Dylan M.A. Jacob,                                        April 23, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1700
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Clayton A.
      Appellee-Plaintiff.                                      Graham, Judge
                                                               Trial Court Cause No.
                                                               49G07-1803-CM-8796



      Mathias, Judge.


[1]   Dylan Jacob (“Jacob”) appeals his conviction of Operating a Vehicle While

      Intoxicated from the Marion Superior Court. He argues one issue, which we


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019                    Page 1 of 8
      restate as whether the State presented sufficient evidence to support the

      conviction.

[2]   We affirm.


                                  Facts and Procedural History
[3]   On March 8, 2018, Jacob attended a concert in Bloomington, Indiana. Jacob

      testified he had four shots of tequila at the concert. After the concert, Jacob

      took an Uber to his sister’s house in Greenwood, slept for approximately an

      hour at her residence, and then decided to drive home. While travelling

      northbound on Interstate 465, his vehicle was struck from behind by a semi.


[4]   Indiana State Trooper Jayson Massey was dispatched to the scene on March 9,

      2018 at 1:33 a.m. and arrived at approximately 1:50 a.m. He observed a semi in

      the left lane and a Tesla passenger car in the right lane. Trooper Massey also

      observed significant rear-end passenger’s side damage to the Tesla. When

      Trooper Massey made contact with Jacob, the registered owner and driver of

      the Tesla, he observed that Jacob “had a hard time comprehending . . . the

      instructions that I gave him” and “seemed very out of it.” Tr. p. 9. Specifically,

      when Trooper Massey asked Jacob for his driver’s license, proof of insurance,

      and registration, Jacob seemed confused and unsure of what to do whereas the

      driver of the semi did not exhibit the same confusion.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019   Page 2 of 8
[5]   Trooper Massey asked Jacob if he had been drinking. Jacob replied that he had

      not.1 However, Trooper Massey was able to smell alcohol on Jacob’s breath

      from approximately two to three feet away. Trooper Massey a performed the

      Horizontal Gaze Nystagmus (“HGN”) field sobriety test on Jacob. During this

      test, Trooper Massey checked for equal pupil size, resting nystagmus, equal

      tracking, lack of smooth pursuit, “nystagmus prior to forty-five degrees” and

      “vertical nystagmus.” Tr. p. 12. Jacob displayed all six clues on this sobriety

      test. Trooper Massey also observed Jacob’s eyes to be bloodshot, “glassy,” and

      “shiny” when exposed to light. Tr. p. 11. Trooper Massey acknowledged on

      cross examination that a concussion could have skewed the results of the HGN

      test. Trooper Massey did not administer any further field sobriety tests at the

      time because traffic on I-465 was hindered due to the accident. Traffic was

      flowing through the center lane, and Trooper Massey believed further accidents

      could occur because the vehicles that had been involved in the accident were

      still on the road.

[6]   At this time, Trooper Massey read Jacob the implied consent and gave him a

      Miranda warning. Jacob consented to a blood draw. 2 He also admitted that he

      had Wendy’s for dinner, four shots of tequila at the concert in Bloomington,

      and took an Uber to his sister’s house in Greenwood, where he slept for about




      1
          Jacob disputes that he initially told Trooper Massey that he had not been drinking.
      2
       The blood draw results were not considered by the trial court because the State was unable to establish that
      the blood draw was taken within three hours of the operation of the vehicle as required by Indiana Code
      sections 9-30-6-2(c), 15. Mordacq v. State, 585 N.E.2d 22, 27 (Ind. Ct. App. 1992).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019                     Page 3 of 8
      an hour, and then felt fine to drive home. Jacob admitted that he was driving

      and had the vehicle on auto-pilot when he was struck from behind by the semi.

      Although Trooper Massey did not detect any signs of intoxication on the part of

      semi driver, the cause of the accident was determined to be primarily the fault

      of the semi driver. Jacob testified that he suffered from a concussion as a result

      of the accident and that officers from the Indianapolis Metropolitan Police

      Department (“IMPD”) initially arrived at the scene, but he was told that he had

      to wait for someone from the Indiana State Police (“ISP”) in order to file an

      official report.


[7]   Jacob was charged with Count I, operating a motor vehicle while intoxicated

      endangering a person as a Class A misdemeanor, and Count II, operating a

      motor vehicle while intoxicated with an alcohol concentration equivalent

      (“ACE”) of 0.08 or more as a Class C misdemeanor. A bench trial was held on

      July 17, 2018. At the bench trial, the trial court dismissed both counts, but

      allowed the State to pursue Count I as a lesser included offense of a Class C

      misdemeanor. Jacob was found guilty of this count and was sentenced to sixty

      days in jail, less time served, all of which was suspended to probation. Jacob

      now appeals.


                                     Discussion and Decision
[8]   Initially, we must note that Jacob argues that the trial court “erred in its

      application of Indiana Code 9-30-5-2(a)” and that the trial court’s

      determinations are questions of law under a de novo standard of appellate

      review. Appellant’s Br. at 8. Jacob then proceeds to argue that the evidence
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019   Page 4 of 8
       does not support the convictions. The State argues that this standard of review

       is not applicable to the issues in this case and that this Court should evaluate

       this matter pursuant to a sufficiency of evidence review. Here, we are not

       evaluating a question composed entirely of law. We are evaluating a question

       regarding application of the facts to the law and agree with the State that the

       sufficiency of evidence standard is the appropriate standard in this matter.

[9]    Upon a challenge to a conviction based on the sufficiency of evidence to

       support a conviction, a reviewing court does not reweigh the evidence or judge

       the credibility of the witnesses. Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind.

       2001). Appellate courts must consider only the probative evidence and

       reasonable inferences supporting the verdict. Bald v. State, 766 N.E.2d 1170,

       1173 (Ind. 2002). We “must affirm ‘if the probative evidence and reasonable

       inferences drawn from the evidence could have allowed 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) (citing Tobar v. State, 740 N.E.2d 109, 111–12

       (Ind. 2000)). A conviction may be based upon circumstantial evidence alone.

       Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App. 2007), trans. denied. Reversal is

       appropriate only when reasonable persons would not be able to form inferences

       as to each material element of the offense. Id.


[10]   “Intoxicated” is defined by Indiana Code section 9-13-2-86, in relevant part, as:


               under the influence of:


               (1) alcohol

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019   Page 5 of 8
                                                        ***


               so that there is an impaired condition of thought and action and
               the loss of control of a person’s faculties.


[11]   Proof of intoxication does not require proof of blood alcohol content; it is

       sufficient to show that the defendant was impaired. Ballinger v. State, 717

       N.E.2d 939, 943 (Ind. Ct. App. 1999). “The State need not present separate

       proof of impairment of action, impairment of thought, and loss of control of

       faculties to establish an individual’s intoxication.” Woodson v. State, 966 N.E.2d

       135, 142 (Ind. Ct. App. 2010), trans. denied. An individual’s impairment is

       determined by considering his capability as a whole, not component by

       component, such that impairment of any of these three abilities equals

       impairment. Id. Impairment can be established by the following: “(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 field sobriety tests; (7) slurred speech.” Fields v.

       State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008) (quoting Ballinger, 717 N.E.2d

       at 943).


[12]   Jacob primarily argues that the State was unable to prove that he was

       intoxicated while operating a motor vehicle. Jacob also argues that his case is

       analogous to the facts in Gatewood v. State, 921 N.E.2d 45 (Ind. Ct. App. 2010),

       trans. denied. In Gatewood, a panel of our court determined that the evidence was

       insufficient to show that a moped driver was intoxicated at the time he was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019   Page 6 of 8
       operating the moped, when the driver was found asleep in a hospital parking lot

       next to the moped with a blood alcohol content of 0.286. Id. Although

       Gatewood had been observed by a security guard stumbling when he first

       arrived at the hospital, he had recently undergone surgery, had metal in his feet

       and ankles which made walking difficult, and was taking hydrocodone for pain.

       Id. at 47. The security guards, who were trained in dealing with intoxicated

       individuals, were not alarmed by Gatewood’s driving when he arrived at the

       hospital. Id. at 50. In Gatewood, the driver also testified that he had bought

       vodka on the way to the hospital and that he drank the vodka in the parking lot

       after arriving because he did not “‘take hospitals very well.’” Id. at 47.


[13]   Here, even without the precise timing of the accident established in the record,

       the trial court could reasonably infer that Jacob had driven while intoxicated

       shortly before Trooper Massey was dispatched.3 When Trooper Massey arrived

       on the scene approximately twenty minutes after being dispatched at 1:33 a.m.,

       the vehicles involved in the accident were still in the lanes of I-465; they had not

       been pulled off to the shoulder, nor had they been towed. Trooper Massey




       3
         Jacob also challenges his conviction based on Rich v State, 864 N.E.2d 1130 (Ind. Ct. App. 2007), because
       officers from IMPD initially arrived on the scene and told him that he had to wait until an officer from ISP
       arrived in order to file a police report. He seems to argue that these IMPD officers should have given him a
       Miranda warning but simultaneously questions whether these officers had reasonable suspicion to believe a
       crime had occurred and whether this was an improper stop. Here, when Trooper Massey arrived and
       determined that he had probable cause to believe a crime had occurred, he read Jacob a Miranda warning and
       Jacob provided a statement. The State did not rely on any evidence from the IMPD officers who initially
       arrived at the scene. There is no indication that this was anything more than a routine accident investigation
       or that Jacob had been “stopped.” The State relied on the evidence from ISP Trooper Massey and Jacob’s
       arguments under Rich are unavailing.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019                     Page 7 of 8
       observed that Jacob had difficulty following his directions to provide his license,

       registration, and proof of insurance; Jacob’s eyes appeared glassy and

       bloodshot; Trooper Massey was able to detect the smell of alcohol on Jacob’s

       breath; and Jacob signaled as intoxicated for all six clues on the Horizontal

       Gaze Nystagmus test. After being read his Miranda rights, he admitted to

       drinking four shots of tequila at a concert in Bloomington, taking an Uber to his

       sister’s house in Greenwood, sleeping for approximately an hour, and then

       making the decision to drive home.

[14]   Jacob requests this court to attribute the behaviors and other observations by

       Trooper Massey that commonly indicate intoxication to the head injury Jacob

       sustained when his Tesla was struck by a semi. However, we will not weigh

       evidence or judge credibility; that is properly the province of the fact-finder at

       trial, here the judge in a bench trial. Alkhalidi, 753 N.E.2d at 627. As such, we

       conclude there was sufficient evidence in the record to support the conviction of

       Operating a Vehicle While Intoxicated as a Class C Misdemeanor.


                                                 Conclusion
[15]   The State of Indiana was able to show sufficient evidence to prove that Jacob

       committed the offense of Operating a Vehicle While Intoxicated, and any

       inferences made by the trial court were not unreasonable.


[16]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1700 | April 23, 2019   Page 8 of 8
