MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                       Mar 19 2015, 9:37 am
Memorandum Decision shall not be 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
Gregory L. Fumarolo                                      Gregory F. Zoeller
Fort Wayne, Indiana                                      Attorney General of Indiana

                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Robert P. Stoppenhagen,                                  March 19, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         76A04-1408-CR-374
        v.                                               Appeal from the Steuben Superior
                                                         Court
State of Indiana,                                        The Honorable William C. Fee,
Appellee-Plaintiff.                                      Judge

                                                         Cause No. 76D01-1202-FD-125




Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015     Page 1 of 13
[1]   Robert P. Stoppenhagen appeals his conviction for operating a vehicle while

      intoxicated as a class D felony. Stoppenhagen raises two issues which we

      consolidate and restate as whether the evidence is sufficient to support

      Stoppenhagen’s conviction. We affirm.


                                      Facts and Procedural History

[2]   In the early morning hours of January 21, 2012, Steuben County Sheriff’s

      Deputy Rex Snider was on patrol in a fully marked patrol vehicle and was

      traveling westbound on Baker Road approaching Old 27 in Steuben County.

      At approximately 2:40 a.m., Deputy Snider observed some headlights and a

      vehicle sitting at Lane 140 on Lake George. Deputy Snider pulled up to a stop

      sign and decided to go north to check to make sure that the vehicle was not in

      distress. Deputy Snider passed the vehicle and observed the driver’s door open,

      the interior lights illuminated, and Stoppenhagen standing next to the vehicle

      urinating. Deputy Snider pulled up a bit farther so that he could turn around

      and make contact with Stoppenhagen.


[3]   When Stoppenhagen saw Deputy Snider, he quickly entered his vehicle and

      attempted to leave by driving his vehicle southbound on Old 27. Deputy Snider

      activated his emergency lights, and Stoppenhagen stopped his vehicle. Deputy

      Snider asked Stoppenhagen why he was urinating outdoors, and he said that he

      had just left his girlfriend’s house. Deputy Snider asked why he did not “go

      there,” and Stoppenhagen said “[j]ust because it’s cold.” Transcript at 78.




      Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 2 of 13
[4]   Deputy Snider observed that Stoppenhagen’s speech was slow and slurred, that

      his eyes were red and watery, and that an odor of an alcoholic beverage was

      coming from inside the vehicle. Deputy Snider asked Stoppenhagen if he had

      been consuming alcohol, and Stoppenhagen stated that he had a drink

      approximately an hour earlier. Deputy Snider asked Stoppenhagen for his

      license and registration. Stoppenhagen pulled his wallet out and fumbled with

      opening it, and Deputy Snider observed that Stoppenhagen’s manual dexterity

      was poor as he attempted to retrieve his license from his wallet.


[5]   Deputy Snider asked Stoppenhagen to exit his vehicle, and as he exited the

      vehicle, Deputy Snider observed a fairly large wet spot in Stoppenhagen’s groin

      area. Deputy Snider did not perform field sobriety tests because the road was

      snow and ice covered.


[6]   Typically, Deputy Snider would just have had Stoppenhagen’s vehicle towed,

      but Stoppenhagen requested that his vehicle not be towed, and Deputy Snider

      allowed him to contact his girlfriend to remove the vehicle. Deputy Michael

      Kugler responded to the scene to assist Deputy Snider. The deputies obtained

      Stoppenhagen’s consent to move his vehicle because it was partially in the

      roadway. Deputy Kugler moved Stoppenhagen’s vehicle and observed “an

      open half . . . bottle of . . . harder alcohol” and a bottle of mouthwash between

      the seats. Id. at 102.


[7]   Deputy Snider transported Stoppenhagen to the Steuben County Jail for testing.

      At the jail, he offered Stoppenhagen the opportunity to submit to standard field


      Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 3 of 13
      sobriety tests, but Stoppenhagen did not agree to take the tests and said that “he

      had double vision and also both of his knees were bad and . . . he couldn’t walk

      a straight line even if he was sober.” Id. at 81. Deputy Snider offered

      Stoppenhagen the opportunity to submit to a chemical breath test, and he

      agreed to take the test. Stoppenhagen had “issues with getting a good breath

      and he started and stopped . . . several times,” and the first test came back

      invalid. Id. at 86. Deputy Snider performed a second test, and the test

      indicated .08.


[8]   On February 2, 2012, the State charged Stoppenhagen with Count I, operating

      a vehicle while intoxicated as a class C misdemeanor; Count IA, operating a

      vehicle while intoxicated – second/subsequent offense as a class D felony;

      Count II, operating a vehicle with at least .08 gram alcohol content as a class C

      misdemeanor; and Count IIA, operating a vehicle with an ACE of .08 or more-

      second/subsequent offense as a class D felony.


[9]   On March 6, 2014, the court held a jury trial on Counts I and II and

      Stoppenhagen was found guilty as charged. After a second phase of the trial on

      Counts IA and IIA, the jury found Stoppenhagen guilty of those counts. After

      reading the verdicts, the court stated: “The Court would then recognize and

      accept those verdicts and find as a matter of law that they do merge and are

      consolidated under one count A of the Information, a Class D Felony.

      Judgment of Conviction is entered.” Id. at 150. The court merged the counts

      into Count IA, entered judgment of conviction on that count, and ultimately

      sentenced Stoppenhagen to two years in the Department of Correction.

      Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 4 of 13
                                                       Discussion

[10]   The issue is whether the evidence is sufficient to support Stoppenhagen’s

       conviction for operating a vehicle while intoxicated as a class D felony. 1 When

       reviewing claims of insufficiency of the evidence, we do not reweigh the

       evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816,

       817 (Ind. 1995), reh’g denied. Rather, we look to the evidence and the

       reasonable inferences therefrom that support the verdict. Id. We will affirm the

       conviction if there exists evidence of probative value from which a reasonable




       1
         Stoppenhagen also argues that the evidence was insufficient to sustain his conviction for operating a vehicle
       with at least .08 grams of alcohol content. The record reveals that the court entered judgment of conviction
       on the charge of operating while intoxicated as a class D felony and merged the other counts. In addition to
       the court’s statement at trial that the court recognized the verdicts and found as a matter of law that they
       merged and were consolidated under Count IA, the March 6, 2014 order titled “Judgment of Conviction
       (Jury Trial)” states: “Counts are now merged into Count IA as a matter of law.” Appellant’s Appendix at 78.
       The order also states: “Having accepted and filed said verdict, it is now ordered and adjudged by the court
       that defendant, Robert Paul Stoppenhagen who is a male person, 72 years of age, is guilty of the crime of
       Operating While Intoxicated/Prior, a Class D Felony as charged in the Information.” Id. The document
       titled “Judgment of Conviction, Sentence and Commitment Order Upon Guilty Verdict by Jury” dated July
       14, 2014 states:
                Findings are entered that the jury of this cause delivered in open court the following
                guilty verdict, to wit: OPERATING WHILE INTOXICATED, a CLASS D FELONY
                on as charged in the Information. Having accepted and filed said verdict, IT IS
                ORDERED THAT A JUDGMENT OF CONVICTION for the above stated offense is
                entered and defendant is sentenced on the following terms . . . .
       Id. at 88. Because the trial court merged the other counts and only one judgment was entered, we need not
       address his claim with respect to the charge of operating while intoxicated with at least .08 grams of alcohol
       content. See Carter v. State, 750 N.E.2d 778, 781 (Ind. 2001) (holding that “a jury verdict on which the court
       did not enter judgment for one reason or another (merger, double jeopardy, etc.) is unproblematic”); Fry v.
       State, 748 N.E.2d 369, 373 n.2 (Ind. 2001) (“Because the trial court merged the robbery conviction into the
       conspiracy to commit robbery conviction, here we do not separately address the sufficiency of the evidence
       with regard to the robbery conviction.”); Mann v. State, 754 N.E.2d 544, 550 n.6 (Ind. Ct. App. 2001) (noting
       that the defendant argued that the trial court abused its discretion in allowing the State to amend the charging
       information and in instructing the jury with respect to the other counts charged and holding that we need not
       address these claims because the trial court merged those counts and only one judgment was entered), trans.
       denied.



       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015               Page 5 of 13
       trier of fact could find the defendant guilty beyond a reasonable doubt. Id. A

       conviction may be based upon circumstantial evidence alone. Fought v. State,

       898 N.E.2d 447, 450 (Ind. Ct. App. 2008). Reversal is appropriate only when

       reasonable persons would not be able to form inferences as to each material

       element of the offense. Id.


[11]   The offense of operating a vehicle while intoxicated is governed by Ind. Code §

       9-30-5-2, which provides that “a person who operates a vehicle while

       intoxicated commits a Class C misdemeanor.” At the time of the offense, Ind.

       Code § 9-30-5-32 provided that a person who violates Ind. Code § 9-30-5-2

       commits a class D felony if the person has a prior conviction of operating while

       intoxicated that occurred within five years immediately preceding the

       occurrence of the violation of Ind. Code § 9-30-5-2. Thus, to convict

       Stoppenhagen of operating a vehicle while intoxicated as a class D felony, the

       State needed to prove that he operated a vehicle while intoxicated and that he

       had a prior conviction of operating while intoxicated within five years.


[12]   Stoppenhagen does not argue that his offense did not qualify as a class D

       felony. Rather, he contends that the evidence was insufficient to demonstrate

       that he: (A) operated the vehicle; and (B) was intoxicated.




       2
           Subsequently amended by Pub. L. No. 158-2013, § 159 (eff. July 1, 2014).


       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 6 of 13
       A. Operating the Vehicle


[13]   Stoppenhagen argues that the State failed to prove that he was “operating” a

       vehicle and asserts that the State presented no evidence that the car was running

       when the deputy first approached the scene or that the engine was running

       when Deputy Snider approached the vehicle and asked for his license and

       registration. Appellant’s Brief at 11. The State argues that there was clear

       evidence in the record that Stoppenhagen operated the vehicle.


[14]   The record reveals that Deputy Snider observed Stoppenhagen standing next to

       his vehicle at Lane 140 on Lake George urinating with the driver’s door open

       and the interior lights illuminated at approximately 2:40 a.m. The following

       exchange occurred during direct examination of Deputy Snider:

               Q Okay and ultimately did you make contact with [Stoppenhagen]?
               A Yes, actually Mr. Stoppenhagen, when he saw me, he quickly got
               back into his vehicle and attempted to leave. And that’s when I, so I
               turned around and came back in my vehicle and then activated
               emergency lighting.
               Q Okay, so as he sees you, he hopped in his vehicle and began
               driving?
               A Yes.


[15]   Transcript at 76-77. Stoppenhagen also told Deputy Snider that he had “just

       left his girlfriend’s house.” Id. at 78. Based upon the record, we conclude that




       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 7 of 13
       the State presented evidence of a probative nature from which a reasonable jury

       could have found that Stoppenhagen operated his vehicle.3


       B. Intoxication


[16]   Stoppenhagen argues that the State failed to prove an essential element of the

       crime, i.e., that he was operating his vehicle in an impaired condition.

       Stoppenhagen relies upon Warner v. State, 497 N.E.2d 259 (Ind. Ct. App. 1986).

       He asserts that the jury was instructed pursuant to Ind. Code § 9-13-2-131 that

       prima facie evidence of intoxication includes evidence that at the time of an

       alleged violation there was at least eight-hundredths (.08) of a gram of alcohol

       in two hundred ten (210) liters of a person’s breath, but “based upon the

       holding in [Warner], proof of BAC of .08 or above is not sufficient to establish

       that the driver was intoxicated as that term is defined by I.C. § 9-30-5-2(a).”

       Appellant’s Brief at 15. The State argues that the record is replete with evidence

       of Stoppenhagen’s intoxication and points to his urinating in the road, excuse

       for urinating in the road, the wet spot on his pants, his slow and slurred speech,

       his bloodshot and watery eyes, and his poor manual dexterity.


[17]   At the time of the offense, Ind. Code § 9-13-2-86 provided that “[i]ntoxicated

       means under the influence of . . . alcohol . . . so that there is an impaired



       3
         Stoppenhagen cites Mordacq v. State, 585 N.E.2d 22 (Ind. Ct. App. 1992); and Hiegel v. State, 538 N.E.2d 265
       (Ind. Ct. App. 1989), trans. denied. Those cases did not include testimony from the police officer indicating
       that he actually observed the defendant drive the vehicle as in this case. Thus, we do not find Mordacq or
       Hiegel instructive.



       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015             Page 8 of 13
       condition of thought and action and the loss of normal control of a person’s

       faculties.”4 “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. Rather, a person’s impairment is to be determined by

       considering his capability as a whole, not component by component, such that

       impairment of any of these three abilities equals impairment. Id. Such

       impairment can be established by evidence of: (1) the consumption of a

       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. Id. (citing Fought, 898

       N.E.2d at 451). Ind. Code § 9-13-2-131 provides: “‘Prima facie evidence of

       intoxication’ includes evidence that at the time of an alleged violation the

       person had an alcohol concentration equivalent to at least eight-hundredths

       (0.08) gram of alcohol per: (1) one hundred (100) milliliters of the person’s

       blood; or (2) two hundred ten (210) liters of the person’s breath.”


[18]   In Warner, a police officer was informed by two women that Robert Warner,

       the driver of a pickup truck, attempted to pick them up and was bothering them.

       497 N.E.2d at 260. The officer followed the truck for approximately seventeen

       blocks and observed nothing unusual about its operation and decided to pull the




       4
           Subsequently amended by Pub. L. No. 196-2013, § 3 (eff. May 7, 2013).


       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 9 of 13
       truck over to conduct an investigatory stop. Id. During a brief conversation,

       the officer detected an odor of alcohol on Warner’s breath and that his eyes

       appeared to be bloodshot. Id. Warner completed a field sobriety test with good

       results. Id. The officer conducted a portable breathalyzer test and later

       obtained a BAC Verifier Test which indicated that Warner had a blood alcohol

       content of .23 percent. Id. Warner was convicted of operating a vehicle while

       intoxicated as a class A misdemeanor. Id.


[19]   On appeal, the court concluded that when a defendant is charged with driving

       while intoxicated, Ind. Code § 9-11-1-7 (Supp. 1984), which provided that prima

       facie evidence of intoxication includes evidence that at the time of an alleged

       violation there was ten-hundredths percent or more by weight of alcohol in the

       person’s blood, did not apply to allow the State to make its case merely by

       demonstrating that the defendant had a BAC of .10 percent or above. Id. at

       262. The court also held that as an essential element of the crime, the State

       must demonstrate that the driver was intoxicated, i.e., that he was under the

       influence of alcohol such that there was an impaired condition of thought and

       action and the loss of normal control of the driver’s faculties to such an extent

       as to endanger any person.5 Id. The court ultimately found that the State failed

       to present sufficient evidence of Warner’s intoxication and observed that

       Warner drove seventeen blocks without the officer observing anything




       5
        The requirement that the impaired condition endanger a person was removed after 2001. See Ind. Code § 9-
       13-2-86 (Supp. 2001); Tin Thang v. State, 10 N.E.3d 1256, 1262 (Ind. 2014).

       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015        Page 10 of 13
       indicating Warner’s driving was impaired, Warner completed a field sobriety

       test, and there was no evidence that his speech was slurred or that his thought

       process was impaired in any way. Id. at 263.


[20]   We note that two other panels from this court disagreed with the analysis in

       Warner. See Boyd v. State, 519 N.E.2d 182, 184 n.4 (Ind. Ct. App. 1988)

       (disagreeing with the holding in Warner); Clark v. State, 512 N.E.2d 223, 227 n.1

       (Ind. Ct. App. 1987) (disagreeing with the holding in Warner).6 In Mullins v.

       State, 646 N.E.2d 40, 48 (Ind. 1995), the Indiana Supreme Court addressed

       what was required of the prosecution and the defense when the prosecution

       offers breath-test results for admission as evidence and held that “[c]learly,

       evidence showing that a defendant’s blood-alcohol level was 0.10 percent by

       weight or greater is relevant to a prosecution under either § 9-30-5-1 or § 9-30-5-

       2.” The court noted:

               Breath-test results in a prosecution for operating a vehicle while
               intoxicated under § 9-30-5-2 are also obviously relevant, but are
               especially relevant in light of § 9-13-2-131 (Burns 1991), which
               provides: “‘Prima facie evidence of intoxication’ includes evidence
               that at the time of an alleged violation there was at least ten-
               hundredths percent (0.10%) by weight of alcohol in the person’s
               blood.” But see Warner v. State (1986), Ind. App., 497 N.E.2d 259 (in
               order to sustain a conviction under § 9-11-2-2, the predecessor statute
               to § 9-30-5-2, in addition to proof of a blood-alcohol level of 0.10
               percent or greater, the State must also offer evidence of actual




       6
         In Clark, Judge Shields authored a concurring opinion and stated that she was in complete agreement with
       the holding of Warner. 512 N.E.2d at 228.

       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015          Page 11 of 13
               impairment), questioned by Clark v. State (1987), Ind. App., 512
               N.E.2d 223, 228 n.1.


       Id. at 48 n.9.


[21]   Even assuming that Warner applies and the State cannot demonstrate

       intoxication merely by showing that Stoppenhagen had a blood alcohol content

       equal to or greater than .08, we cannot say that reversal is warranted. Deputy

       Snider testified that Stoppenhagen’s speech was slow and slurred, his eyes were

       red and watery, and he observed an odor of an alcoholic beverage coming from

       inside the vehicle. Deputy Snider also observed that Stoppenhagen’s manual

       dexterity was poor as he attempted to retrieve his license from his wallet.

       Stoppenhagen urinated by his vehicle and had a fairly large wet spot on his

       pants in his groin area. He told Deputy Snider that he had a drink

       approximately an hour earlier, and Deputy Kugler observed an open bottle of

       alcohol in Stoppenhagen’s vehicle. Further, Deputy Snider testified that he

       received training in relation to the investigation of intoxicated individuals, had

       encountered hundreds of intoxicated individuals, and believed that

       Stoppenhagen was intoxicated.


[22]   Based upon the record, we conclude that evidence of probative value exists

       from which the jury could have found Stoppenhagen was intoxicated and guilty

       beyond a reasonable doubt of operating a vehicle while intoxicated as a class D

       felony.




       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 12 of 13
                                                   Conclusion

[23]   For the foregoing reasons, we affirm Stoppenhagen’s conviction for operating a

       vehicle while intoxicated as a class D felony.


[24]   Affirmed.


       Bailey, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 76A04-1408-CR-374 | March 19, 2015   Page 13 of 13
