MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Mar 02 2020, 9:26 am

court except for the purpose of establishing                                    CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Timothy J. Burns                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Marjorie Lawyer-Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy Logan Miesen,                                    March 2, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1932
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A.
Appellee-Plaintiff.                                      Graham, Judge
                                                         Trial Court Cause No.
                                                         49G07-1905-CM-19844



Darden, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020                      Page 1 of 8
                                         Statement of the Case
[1]   Timothy Logan Miesen appeals his conviction of operating a vehicle while
                                                                                      1
      intoxicated in a manner endangering a person, a Class A misdemeanor. We

      affirm.


                                                    Issues
[2]   Miesen raises two issues, which we restate as:


                 I.       Whether the trial court erred by admitting a laboratory
                          report into evidence.


                 II.      Whether the evidence is sufficient to sustain his
                          conviction.


                                   Facts and Procedural History
[3]   On May 18, 2019, at approximately 6 p.m., Officer Kyle Jones was dispatched

      to investigate a report of an accident involving personal injury. When he

      arrived at the scene, he saw a moped laying on the side of the road, with minor

      scrapes on its right side. Jones also encountered Miesen, who was being treated

      by medics for an injury to his right leg. There were no other civilians in the

      area.




      1
          Ind. Code § 9-30-5-2 (2001).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020   Page 2 of 8
[4]   Jones asked Miesen what happened, and Miesen told Jones “he hit another

      vehicle while he was driving his moped.” Tr. Vol. II, p. 6. Jones noted that

      Miesen’s pupils were “constricted,” and he had slurred speech. Id. at 7. Next,

      Jones had Miesen perform a horizontal gaze nystagmus test. Miesen failed the

      test, which, according to Jones’ training, is a sign of intoxication. Jones did not

      ask Miesen to perform any other field sobriety tests because his injured leg

      limited his mobility.


[5]   Next, Jones asked Miesen to consent to a blood draw, and Miesen refused.

      Jones arrested Miesen and transported him to a hospital to have a blood sample
                                                               2
      drawn pursuant to a “warrant blood draw.” Id. at 9.


[6]   Jones testified at trial that the blood draw occurred approximately two hours

      after he first encountered Miesen. At the hospital, Jones watched a nurse draw

      two vials of blood from Miesen. Nurse Cassie Thomas signed a document

      certifying that she had drawn two tubes of blood from Miesen in the presence of

      an officer. The nurse next put the vials in a blue biohazard bag, which Jones

      then placed in an evidence bag. Nurse Thomas and Jones both signed a chain

      of custody document demonstrating she gave the vials to him. Next, pursuant

      to protocol Jones took the packaged vials to the Indianapolis Metropolitan




      2
       The record does not include any information about the circumstances under which the search warrant was
      obtained, and Miesen does not complain of any irregularities in the search warrant process.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020                 Page 3 of 8
      Police Force’s property room to be stored until they were taken to a laboratory

      for testing.


[7]   A forensic scientist employed by the Indianapolis-Marion County Forensic

      Services Agency tested the blood samples on May 21, 2019. The test revealed

      that the ethyl alcohol concentration in Miesen’s blood was “0.103% w/v (o.103

      b/100mL).” Tr. Ex. Vol., State’s Ex. 1. At trial, Miesen stipulated to the

      accuracy of the blood sample test.


[8]   On May 21, 2019, the State charged Miesen with operating a vehicle while

      intoxicated in a manner endangering a person, a Class A misdemeanor;

      operating a vehicle with an ACE of .08 or more, a Class C misdemeanor; and

      driving while suspended, a Class A misdemeanor. On June 3, 2019, the trial

      court ordered the suspension of Miesen’s driver’s license because he had refused

      to submit to a chemical test.


[9]   The trial court presided over a bench trial on July 23, 2019. At the beginning of

      the trial, the State moved to dismiss the charge of driving while suspended.

      After the parties presented their evidence and rested, the trial court found

      Miesen guilty of operating a vehicle while intoxicated in a manner endangering

      a person. The trial court also found him guilty of operating a vehicle with an

      ACE of .08 or more, but determined that the charge merged with the charge of

      operating a vehicle while intoxicated. The trial court granted the State’s motion

      to dismiss the charge of driving while suspended. Next, the trial court imposed

      a sentence, and this appeal followed.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020   Page 4 of 8
                                    Discussion and Decision
                             I. Admission of Laboratory Report
[10]   Miesen argues the trial court erred in admitting the laboratory report into

       evidence, claiming the report should have been excluded because of “a

       complete lack of foundation.” Appellant’s Br. p. 8.


[11]   In reviewing the admission or exclusion of evidence, we determine whether the

       trial court abused its discretion. McCallister v. State, 91 N.E.3d 554, 561 (Ind.

       2018). We will reverse only if the trial court’s ruling was clearly against the

       logic and effect of the facts and circumstances before it. Id.


[12]   Miesen claims the State failed to establish a foundation for the admission of the

       lab report because:


               the record of the blood draw is completely lacking. The record is
               silent as to the training of the nurse to obtain bodily substance
               samples. The record is silent as to whether the nurse was acting
               under the direction of a physician or a protocol prepared by a
               physician.


       Appellant’s Br. p. 11.


[13]   Miesen further claims the absence of the foundational information was unduly

       prejudicial to him and violated Indiana Appellate Rule 403. That rule provides:

       “[t]he court may exclude relevant evidence if its probative value is substantially

       outweighed by a danger of one or more of the following: unfair prejudice,




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020   Page 5 of 8
       confusing the issues, misleading the jury, undue delay, or needlessly presenting

       cumulative evidence.” Id.


[14]   Miesen’s sole objection at trial to the admission of the laboratory report was “as

       to chain of custody.” Tr. Vol. II, p. 11. He did not raise any of the

       foundational issues he now seeks to raise on appeal. A defendant may not

       argue one ground at trial and then raise a different ground on appeal, and the

       failure to raise an issue at trial waives the issue for appeal. Orta v. State, 940

       N.E.2d 370, 376 (Ind. Ct. App. 2011), trans. denied. Miesen has waived his

       foundational challenge to the admission of the laboratory report.


[15]   Waiver notwithstanding, “a party may not take advantage of an error that she

       commits, invites, or which is the natural consequence of her own neglect or

       misconduct.” Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App. 2016). At the

       beginning of the trial, Miesen and the State stipulated “to the results of the lab

       report.” Tr. Vol. II, p. 4. During trial, despite raising a challenge to the chain

       of custody of the samples, Miesen clarified that he stipulated to the report’s

       “accuracy.” Id. at 11. By stipulating that the report was accurate, he invited

       the court to disregard any foundational issues arising from the blood draw

       procedure. We need not further address this claim.


                                 II. Sufficiency of the Evidence
[16]   Miesen argues the record is devoid of facts to support a conclusion that he was

       intoxicated at the scene of the accident. We disagree. The standard of review

       for assessing the sufficiency of the evidence is well-established:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020   Page 6 of 8
               In reviewing a sufficiency of the evidence claim, the Court
               neither reweighs the evidence nor assesses the credibility of the
               witnesses. We look to the evidence most favorable to the verdict
               and reasonable inferences drawn therefrom. We will affirm the
               conviction if there is probative evidence from which a reasonable
               jury could have found the defendant guilty beyond a reasonable
               doubt.


       Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).


[17]   To obtain a conviction as charged, the State was required to prove beyond a

       reasonable doubt that: (1) Miesen; (2) operated a vehicle; (3) while intoxicated;

       (4) in a manner that endangered a person. Ind. Code § 9-30-5-2. “Intoxicated”

       is defined, in relevant part, 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 (2013).


[18]   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. 2012), trans.

       denied. Instead, “[e]vidence of the following can establish impairment: (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; [and] (7) slurred speech.”

       Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999).


[19]   In Miesen’s case, Officer Jones noted that Miesen had constricted pupils and

       slurred speech. In addition, Miesen failed the horizontal gaze nystagmus field

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020   Page 7 of 8
       sobriety test. Finally, although a blood test is not necessary to prove

       intoxication, in this case the ethyl alcohol concentration in Miesen’s blood was

       “0.103% w/v (o.103 b/100mL).” Tr. Ex. Vol., State’s Ex. 1. This is ample

       evidence to demonstrate beyond a reasonable doubt that Miesen was

       intoxicated at the scene of the accident. See Woodson, 966 N.E.2d at 142 (State

       proved Woodson was intoxicated; he displayed three of the factors discussed

       above).


[20]   Miesen argues that the State did not present any evidence related to loss of

       balance, hindered attention span and ability to listen to instructions, or

       difficulty standing. This argument is a request to reweigh the evidence, which

       our standard of review forbids.


                                                Conclusion
[21]   For the reasons stated above, we affirm the judgment of the trial court.


[22]   Affirmed.


       Brown, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020   Page 8 of 8
