MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                        FILED
regarded as precedent or cited before any                          Dec 21 2016, 8:15 am

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
Timothy J. Burns                                        Gregory F. Zoeller
Indianapolis, Indiana                                   Attorney General of Indiana

                                                        Richard C. Webster
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Gerald Spaulding, Sr.,                                  December 21, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1605-CR-1039
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Carol Ann Terzo,
Appellee-Plaintiff                                      Senior Judge
                                                        Trial Court Cause No.
                                                        49G12-1509-CM-31304



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1039 | December 21, 2016    Page 1 of 6
                                             Case Summary
[1]   Gerald Spaulding, Sr., appeals his conviction following a bench trial for class A

      misdemeanor operating a vehicle while intoxicated. His sole assertion on

      appeal is that the State presented insufficient evidence to sustain his conviction.

      Finding the evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   A little after midnight on September 3, 2015, Indianapolis Metropolitan Police

      Department Officer Evan Meyer was patrolling on Lafayette Road in

      Indianapolis when he noticed in his rearview mirror that a pickup truck was

      approaching his vehicle from behind. Officer Meyer was traveling at the speed

      limit, which was thirty-five miles per hour, and he observed that the pickup was

      traveling at a high rate of speed as it quickly caught up to his police vehicle. In

      addition to the high rate of speed, Officer Meyer observed that the pickup truck

      was weaving back and forth on the road. Officer Meyer pulled to the side of the

      road so that the pickup truck could pass him, and then he pulled out behind the

      truck and began following it. Officer Meyer again observed that the driver was

      “moving from the fog lane to like the lane marker” and “was generally weaving

      back and forth between the two lines.” Tr. at 9. After following the pickup

      truck for approximately “half a mile,” Officer Meyer conducted a traffic stop.

      Id.


[3]   Officer Meyer approached the driver of the vehicle, who was later identified as

      Spaulding, and explained why he had stopped him. Officer Meyer observed


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1039 | December 21, 2016   Page 2 of 6
      that Spaulding “had the odor of an alcoholic beverage on his person” and that

      his eyes were red, bloodshot, and glassy. Id. at 10. Spaulding told Officer

      Meyer that he had consumed two beers at a strip club on his way home. Officer

      Meyer administered three field sobriety tests to Spaulding. Spaulding passed

      the horizontal Gaze nystagmus test, but failed the nine-step walk-and-turn test,

      and the one-leg-stand test. Based upon his observations, Officer Meyer believed

      that he had probable cause to request Spaulding to take a certified breath test.

      Officer Meyer read the implied consent law to Spaulding, and Spaulding agreed

      to take the breath test. Officer Meyer transported Spaulding to the northwest

      district police headquarters and administered the test. The result of the test

      indicated that Spaulding had a blood alcohol content of .138 grams per 210

      liters of breath. Officer Meyer then arrested Spaulding. Further investigation

      revealed that Spaulding’s driver’s license was suspended due to a prior

      conviction within the last ten years.


[4]   The State charged Spaulding with Count I, class A misdemeanor operating a

      vehicle while intoxicated, Count II, class C misdemeanor operating a vehicle

      with an ACE of .08 or more, and Count III, class A misdemeanor operating a

      vehicle while suspended. Following a bench trial on March 9, 2016, the trial

      court found Spaulding guilty of Counts I and II, and not guilty of Count III.

      During sentencing, the trial court merged the convictions and entered judgment

      of conviction only as to Count I. This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1039 | December 21, 2016   Page 3 of 6
                                     Discussion and Decision
[5]   Spaulding contends that the State presented insufficient evidence to support his

      conviction. When reviewing a claim of insufficient evidence, we neither

      reweigh the evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495,

      499 (Ind. 2015). We look to the evidence and reasonable inferences drawn

      therefrom that support the conviction, and will affirm if there is probative

      evidence from which a reasonable factfinder could have found the defendant

      guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

      trier of fact is enough to support the conviction, then the reviewing court will

      not disturb it. Id. at 500.


[6]   To convict Spaulding of class A misdemeanor operating a vehicle while

      intoxicated, the State was required to prove that Spaulding operated a vehicle

      while intoxicated in a manner that endangered a person. Ind. Code § 9-30-5-

      2(b). The term “intoxicated” is defined as “under the influence of … (1)

      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.


[7]   Spaulding first asserts that the State failed to prove that he was impaired.

      Impairment can be proven based on 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.” Vanderlinden v. State, 918

      N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied (2010). Here, Officer Meyer


      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1039 | December 21, 2016   Page 4 of 6
      testified that Spaulding smelled of alcohol, had red, bloodshot, and glassy eyes,

      and he failed two out of three field sobriety tests. This evidence was sufficient

      to demonstrate that Spaulding was impaired. His alternative explanations for

      why he smelled of alcohol, had bloodshot eyes, and failed the tests are simply

      invitations for us to reweigh the evidence and reassess witness credibility, which

      we cannot do.


[8]   Spaulding also maintains that the State failed to prove that he operated his

      vehicle in a manner that endangered a person. To prove endangerment, the

      State was required to present evidence “showing that the defendant’s condition

      or operating manner could have endangered any person, including the public,

      the police, or the defendant.” Id. Although the State must submit proof of

      endangerment that goes beyond mere intoxication, see Outlaw v. State, 929

      N.E.2d 196 (Ind. 2010), expressly adopting Outlaw v. State, 918 N.E.2d 379 (Ind.

      Ct. App. 2009), endangerment does not require that “a person other than the

      defendant be in the path of the defendant’s vehicle or in the same area to obtain

      a conviction.” Vanderlinden, 918 N.E.2d. 644-45.


[9]   The State clearly met its burden of proof here. The evidence demonstrated that

      Spaulding drove his pickup truck at a high rate of speed while weaving back

      and forth within the driving lane. Indeed, Officer Meyer’s vehicle was initially

      directly in front of Spaulding’s vehicle and in harm’s way when Officer Meyer

      first observed Spaulding driving in this manner. It was the trial court’s

      prerogative, as the trier of fact, to conclude that this manner of operation could

      have endangered any person, including the public, Officer Meyer, or Spaulding.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1039 | December 21, 2016   Page 5 of 6
       Spaulding’s assertions to the contrary are again simply requests for us to

       reweigh the evidence, and we cannot. The State presented sufficient evidence

       to support Spaulding’s conviction for class A misdemeanor operating a vehicle

       while intoxicated. Therefore, we affirm his conviction.


[10]   Affirmed.


       Riley, J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1605-CR-1039 | December 21, 2016   Page 6 of 6
