MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                  Sep 14 2018, 10:20 am
regarded as precedent or cited before any
                                                                             CLERK
court except for the purpose of establishing                             Indiana Supreme Court
                                                                            Court of Appeals
the defense of res judicata, collateral                                       and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew B. Arnett                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Matthew B. Mackenzie
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Mason,                                            September 14, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-240
        v.                                               Appeal from the Johnson Superior
                                                         Court
State of Indiana,                                        The Honorable Peter D. Nugent,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         41D02-1610-F6-483



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018                Page 1 of 8
[1]   Daniel Mason appeals his conviction of Level 6 felony operating a vehicle

      while intoxicated. 1 Mason argues there is insufficient evidence to support his

      conviction and his sentence is inappropriate. We affirm and remand.



                          Facts and Procedural History
[2]   On October 14, 2016, Deputy Jason Wienhorst responded to a call about a

      suspicious driver. Deputy Wienhorst observed a truck cross over the center line

      after a “burnout.” 2 (Tr. Vol. II at 40.) Deputy Wienhorst activated his

      emergency lights and siren, and he pursued the truck, which did not

      immediately pull over. After stopping the vehicle, Deputy Wienhorst ordered

      the driver, Mason, out of the car. Mason staggered out of the vehicle and

      swayed as he walked back to Deputy Wienhorst. Deputy Wienhorst smelled

      alcohol on Mason and noticed Mason had glassy and bloodshot eyes. Deputy

      Wienhorst attempted to conduct a field sobriety test, but Mason did not

      cooperate. As Deputy Wienhorst conducted the test, Mason did not follow the

      stimulus and instead stared at the Deputy. This occurred multiple times, even

      though Deputy Wienhorst reviewed the instructions each time and Mason




      1
       Ind. Code § 9-30-5-2(a) (a person who operates a vehicle while intoxicated commits a Class C
      misdemeanor); Ind. Code § 9-30-5-3 (2014) (raising Class C misdemeanor to Level 6 felony for prior
      conviction of OWI within five years).
      2
       Deputy Wienhorst defined a “burnout” as “spun the tires, where you apply pressure on the brake, and the
      gas at the same time, breaks the tires loose, causes them to spin, and in return it makes the rear of the vehicle
      break loose from traction and cause it be somewhat out of control.” (Tr. Vol. II at 40.)

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018                     Page 2 of 8
      confirmed he understood them. Deputy Weinhorst found a half empty case of

      beer inside the truck and two open cans of beer in the cupholders.


[3]   Deputy Wienhorst placed Mason under arrest and obtained a warrant to draw

      his blood. Mason’s blood-alcohol level was .257%. Mason was charged with

      Level 6 felony operating a vehicle as a habitual traffic violator, 3 Level 6 felony

      operating while intoxicated with a prior conviction, Class A misdemeanor

      operating while intoxicated endangering a person, 4 and Class C misdemeanor

      operating while intoxicated. 5 The State also filed an information alleging

      Mason was a Habitual Vehicular Substance Offender, 6 because he had at least

      two prior unrelated convictions of a “vehicular substance offense.”

      (Appellant’s App. Vol. 2 at 120.)


[4]   At trial, a jury found Mason guilty of Class C misdemeanor operating while

      intoxicated and Level 6 felony operating while intoxicated, and determined

      Mason was a Habitual Vehicular Substance Offender. The trial court merged

      the Class C misdemeanor into the Level 6 felony and imposed a 2.5-year

      sentence for the felony conviction. The court then enhanced that sentence by 6




      3
          Ind. Code § 9-30-10-16(a)(1) (2015).
      4
          Ind. Code § 9-30-5-2 (2001).
      5
          Ind. Code § 9-30-5-2 (2001).
      6
          Ind. Code § 9-30-15.5-2 (2015).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018   Page 3 of 8
      years because Mason is a Habitual Vehicular Substance Offender, such that

      Mason’s sentence for the Level 6 felony was 8.5 years. 7



                              Discussion and Decision
                                   Sufficiency of Evidence
[5]   Mason argues the record contains insufficient evidence to support his

      conviction. When considering the sufficiency of evidence, “a reviewing court

      does not reweigh the evidence or judge the credibility of the witnesses.”

      McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). 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.” Id. at 126 (internal citation omitted).


[6]   Mason specifically challenges the admission of the State’s evidence to prove

      intoxication. The testing revealed Mason’s blood alcohol level was .257%,

      which is well above the legal limit. See Ind. Code § 9-30-5-1 (2001) (defining

      legal limit as .08%). Mason believes the blood drawn from him was

      mishandled and, therefore, did not accurately reveal his blood-alcohol level.

      Mason claims the vial of blood was shaken and was not refrigerated, both of




      7
        The trial court’s Order and Abstract of Judgment do not indicate Mason was found to be a Habitual
      Vehicular Substance Offender. As that finding is needed to enhance his sentence it should be reflected in the
      orders, and we direct the trial court to amend those orders accordingly. Additionally, the Order contains
      language stating Mason waived his right to appeal; however, we find no support for that in the transcript and
      direct the trial court to remove that language in the amended order.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018                 Page 4 of 8
      which would alter the results of the blood test. However, Robert Ruhl, a

      forensic scientist for the Indiana Department of Toxicology, testified as to the

      effects of the mistreatment of the blood sample. Ruhl said that the tipping or

      shaking of the blood would have no effect on the test and the lack of

      refrigeration, if it were to have an effect, would lower the alcohol level in the

      blood. Accordingly, Mason has not demonstrated the alleged mistreatment of

      his blood sample rendered the test result invalid or prejudicial.


[7]   Furthermore, the State did not need to rely on a chemical test to prove

      intoxication. “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; (7) slurred speech.” Fought v.

      State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008). Deputy Wienhorst testified he

      observed Mason drive his truck erratically, cross the center line and speed

      away. Deputy Wienhorst watched Mason stagger and sway as he walked,

      noticed Mason had bloodshot and glassy eyes, and smelled alcohol on Mason.

      Mason failed to follow instructions to complete a field sobriety test. Open beer

      cans and a half empty case of beer were found in the truck. Based on these

      facts, the evidence was sufficient to prove intoxication. See, e.g., Fields v. State,

      888 N.E.2d 304, 308 (Ind. Ct. App. 2008) (affirming conviction of operating

      while intoxicated based on similar evidence proving intoxication).




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018   Page 5 of 8
                                      Inappropriate Sentence
[8]   Mason argues that, in light of his character and the nature of his offense, his

      sentence was inappropriate.


              We “may revise a sentence authorized by statute if, after due
              consideration of the trial court’s decision, the Court finds that the
              sentence is inappropriate in light of the nature of the offense and
              the character of the offender.” Ind. Appellate Rule 7(B).
              “Although appellate review of sentences must give due
              consideration to the trial court’s sentence because of the special
              expertise of the trial bench in making sentencing decisions,
              Appellate Rule 7(B) is an authorization to revise sentences when
              certain broad conditions are satisfied.” Shouse v. State, 849
              N.E.2d 650, 660 (Ind. Ct. App. 2006), trans. denied (citations and
              quotation marks omitted). “[W]hether we regard a sentence as
              appropriate at the end of the day turns on our sense of the
              culpability of the defendant, the severity of the crime, the damage
              done to others, and myriad other factors that come to light in a
              given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).
              In addition to the “due consideration” we are required to give to
              the trial court’s sentencing decision, “we understand and
              recognize the unique perspective a trial court brings to its
              sentencing decisions.” Rutherford v. State, 866 N.E.2d 867, 873
              (Ind. Ct. App. 2007).


      Couch v. State, 977 N.E.2d 1013, 1017 (Ind. Ct. App. 2012), reh’g denied, trans.

      denied. The appellant bears the burden of demonstrating his sentence is

      inappropriate. Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App. 2011),

      trans. denied.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018   Page 6 of 8
[9]    Regarding the nature of the offense, the trial court acknowledged Mason was

       driving without a license. Mason also had a passenger in the vehicle, and

       Mason put the passenger in danger. As a result of performing a burnout,

       Mason also endangered other drivers when he crossed over the center line and

       created a lot of dust, smoke and debris, making it difficult for other drivers to

       see.


       As for Mason’s character, the trial court noted Mason’s thirteen prior

       misdemeanors and six prior felonies including his six prior convictions of

       operating a vehicle while intoxicated. Mason argues the court did not

       recognize several mitigating factors such as his two young children, his

       financial support for his family, and his potential to receive treatment.

       However, during the presentence investigation, Mason admitted he did not

       have a job or any money and asserted he did not believe further treatment for

       his substance abuse would do any good. Mason also expressed disinterest in

       probation or any other community supervision. The trial court did

       acknowledge Mason was respectful towards the jury and court staff.


[10]   The sentencing guideline for a Level 6 felony is 6 months to 2.5 years. Ind.

       Code § 35-50-2-7(b) (2016). The sentencing guidelines allow for an

       enhancement following an adjudication as a Habitual Vehicular Substance

       Offender of one to eight years. Ind. Code § 9-30-15.5-2(d) (2015). Considering

       Mason’s character and the nature of his offense, we do not believe his sentence

       of eight and half years is inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018   Page 7 of 8
                                           Conclusion
[11]   The evidence demonstrates that Mason was intoxicated and, therefore, guilty of

       Level 6 felony operating a vehicle while intoxicated. Also, in light of Mason’s

       character and the nature of his offense, Mason’s eight-and-half-year sentence is

       not inappropriate. Nevertheless, we remand for the trial court to fix the Order

       and Abstract of Judgment as stated in footnote 7.


[12]   Affirmed and remanded.


       Baker, J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-240 | September 14, 2018   Page 8 of 8
