MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Mar 15 2018, 8:33 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
Rory Gallagher                                           Curtis T. Hill, Jr.
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cory Jones,                                              March 15, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1708-CR-1854
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Linda Brown,
Appellee-Plaintiff.                                      Judge
                                                         The Honorable Steven Rubick,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G10-1704-CM-13838



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018            Page 1 of 8
                                Case Summary and Issue
[1]   Following a bench trial, Cory Jones was convicted of operating a vehicle with

      an alcohol concentration equivalent (“ACE”) to at least .08 grams of alcohol

      per one hundred milliliters of blood, a Class C misdemeanor. Jones appeals his

      conviction, raising one issue for review: whether the evidence is sufficient to

      support his conviction. Concluding the evidence is sufficient, we affirm.



                            Facts and Procedural History
[2]   On April 14, 2017, around 9:15 pm, Officer Robert F. Williams of the

      Indianapolis Metropolitan Police Department came across a silver Toyota

      wedged between two boulders off the side of the road. The vehicle was running

      and the headlights were on. Officer Williams approached the vehicle and found

      Jones in the driver’s seat. Officer Williams testified that when he started talking

      to Jones, “there was a strong odor of alcohol emitting from the vehicle and his

      person.” Transcript, Volume II at 5. Officer Williams also testified that Jones

      was walking in an unsteady manner, was slurring his speech, and had glassy

      and bloodshot eyes. Officer Williams identified these as signs of intoxication

      and requested a certified DUI investigator be sent to the scene.


[3]   Officer Stout, who has been trained as a DUI investigator, arrived on the scene

      around 9:50 pm. Officer Stout pulled Jones aside and identified signs of

      intoxication, including slurred speech, glassy and bloodshot eyes, and unsteady

      balance. Officer Stout proceeded to administer a horizontal gaze nystagmus


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 2 of 8
      field sobriety test on Jones. This was the only field sobriety test administered

      on Jones, because Jones said he had a physical injury which would impair his

      ability to perform additional tests. After Jones failed the horizontal gaze

      nystagmus test, Officer Stout explained the Indiana Implied Consent Law to

      Jones. Jones refused to submit to a chemical test despite being advised that his

      refusal would result in the suspension of his license for one year. Officer Stout

      read Jones his rights and requested a search warrant authorizing a chemical test

      on Jones. When Officer Stout asked what happened regarding the accident,

      Jones stated “he must have been going too fast to make the turn[.]” Tr., Vol. II

      at 18. After receiving an electronic search warrant, Officer Stout took Jones to

      Eskenazi Hospital for a blood draw. The results indicated Jones had an ACE of

      .14 grams per one hundred milliliters of blood when it was drawn.


[4]   The State charged Jones with operating a vehicle while intoxicated endangering

      a person, a Class A misdemeanor, and operating a vehicle with an ACE of .08

      or more, a Class C misdemeanor. At a bench trial at which Officer Williams

      and Officer Stout testified, Jones moved for a Trial Rule 41(B) involuntary

      dismissal regarding both charges. The trial court granted the dismissal

      regarding the operating a vehicle while intoxicated endangering a person

      charge, finding a lack of evidence to support endangerment and the mental

      status requirement of intoxication. Tr., Vol. II at 24. The trial court denied the

      motion regarding the charge of operating a vehicle with an ACE of .08 or more

      and subsequently found Jones guilty of this charge. The trial court then

      sentenced Jones to sixty days in county jail with fifty-eight days suspended,


      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 3 of 8
      ninety days of probation, twenty-four hours of community service, and

      suspended his driver’s license for one year. Jones now appeals his conviction.



                                Discussion and Decision
                                     I. Standard of Review
[5]   When reviewing a defendant’s claim of insufficient evidence, “[o]ur standard of

      review is deferential to the factfinder[.]” Taylor v. State, 86 N.E.3d 157, 163

      (Ind. 2017). We neither reweigh the evidence nor judge the credibility of the

      witnesses. Buelna v. State, 20 N.E.3d 137, 141 (Ind. 2014). We consider only

      the probative evidence and reasonable inferences supporting the verdict. Id.

      Evidence is considered sufficient if “an inference may reasonably be drawn

      from it to support the verdict.” Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007)

      (quotation omitted). We will affirm the conviction “unless no reasonable

      factfinder could find the defendant guilty.” Griffith v. State, 59 N.E.3d 947, 958

      (Ind. 2016).


                              II. Sufficiency of the Evidence
                                     A. Operation of Vehicle
[6]   First, Jones argues that there was insufficient evidence presented at trial to

      establish that he was operating his vehicle, a required element of operating with

      an ACE of at least .08. Jones reasons that Officer Williams finding him off the

      side of the road was not enough to establish his operation of the vehicle.

      Although Jones admits that he operated his vehicle at some point that day, he

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 4 of 8
      contends that “the record fails to establish when this occurred.” Brief of

      Appellant at 13.


[7]   In Indiana, “[a] person who operates a vehicle with an alcohol concentration

      equivalent to at least eight-hundredths (0.08) gram of alcohol but less than

      fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100) milliliters

      of the person’s blood . . . commits a Class C misdemeanor.” Ind. Code § 9-30-

      5-1(a). “Operate” means “to navigate or otherwise be in actual physical control

      of a vehicle, motorboat, off-road vehicle, or snowmobile.” Ind. Code § 9-13-2-

      117.5. Factors that may be considered to determine whether a person has

      operated a vehicle include, but are not limited to, the location of the vehicle

      when discovered; whether the vehicle was in motion when discovered; and

      evidence that the defendant was observed operating the vehicle before he or she

      was discovered. West v. State, 22 N.E.3d 872, 876 (Ind. Ct. App. 2014), trans.

      denied. In addition to these factors, “any evidence that leads to a reasonable

      inference should be included.” Id.


[8]   Officer Williams testified that when he discovered Jones’ vehicle off the road,

      the lights were on and “the vehicle was running.” Tr., Vol II at 5. Upon

      approaching the vehicle, Officer Williams testified that Jones was “sitting in the

      . . . driver’s seat with the vehicle running.” Id. Jones told Officer Williams that

      he ended up off the road because he forgot to turn. Officer Stout testified that

      Jones admitted to driving and, when asked what happened, “said he must have

      been going too fast to make the turn, and went straight into the construction lot

      . . . .” Id. at 18.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 5 of 8
[9]    This evidence indicates that Jones admitted to driving his vehicle off the road

       and was found in the driver’s seat of that vehicle while it was running and with

       the headlights on. We believe a reasonable factfinder could infer from this

       evidence that Jones was in actual physical control of his vehicle and met the

       statutory definition of “operate” pursuant to Indiana Code section 9-13-2-117.5.


                                     B. Alcohol Concentration
[10]   Second, Jones argues that there was insufficient evidence presented at trial to

       establish that he had an ACE of at least .08 while he was operating his vehicle.


[11]   To prove an offense under Indiana Code chapter 9-30-5, “evidence of the

       alcohol concentration that was in the blood of the person charged with the

       offense: (1) at the time of the alleged violation; or (2) within the time allowed

       for testing under [IC 9-30-6-2] . . . is admissible.” Ind. Code § 9-30-6-15(a). If a

       chemical test is administered within three hours after a law enforcement officer

       has probable cause to believe a person has committed an offense under Indiana

       Code chapter 9-30-5, and the results show an ACE of at least .08, “the trier of

       fact shall presume that the person charged with the offense had an alcohol

       concentration equivalent to at least eight-hundredths (0.08) gram of alcohol per

       one hundred (100) milliliters of the person’s blood . . . at the time the person

       operated the vehicle. However, this presumption is rebuttable.” Ind. Code § 9-

       30-6-15(b).


[12]   The State acknowledges that it did not establish that the chemical test was

       administered within the proper timeframe to take advantage of the statutory

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 6 of 8
       presumption found in Indiana Code section 9-30-6-15(b). Nevertheless, the

       State argues it still presented “substantial evidence . . . to support [Jones’]

       conviction.” State’s Brief of Appellee at 14.


[13]   During the bench trial, evidence was presented that Jones drove his vehicle off

       the road and into a construction lot. Two officers testified that they detected

       the odor of alcohol coming from Jones when they arrived at the scene of the

       accident. Officer Stout, a certified DUI investigator, testified that he found

       probable cause to believe Jones had operated a vehicle while intoxicated from

       alcohol. Because Jones refused to submit to a chemical test, Officer Stout

       obtained a search warrant for a blood draw. After obtaining the warrant,

       Officer Stout transported Jones from the scene of the accident to the hospital.

       The results of a blood draw on Jones show an alcohol concentration of .14

       grams per one hundred milliliters. The testimony of Officers Williams and

       Stout also indicates that Jones was in the presence of the police from the time

       Officer Williams arrived on the scene until Jones’ blood draw at the hospital.


[14]   Jones argues that the State’s evidence was insufficient because there was no

       expert evidence extrapolating the results of the blood draw back to the time that

       Jones was operating the vehicle. However, on appeal, we consider only

       whether “an inference may reasonably be drawn from [the evidence presented]

       to support the verdict.” Drane, 867 N.E.2d at 147. Given the testimony of the

       officers regarding the odor of alcohol on Jones at the scene of the accident, the

       subsequent result of Jones’ blood draw, which was well over the .08 threshold

       required under the statute, and the constant police presence between the time

       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 7 of 8
       Officer Williams discovered Jones and the time of the blood draw, we cannot

       say that “no reasonable factfinder could find the defendant guilty.” Griffith, 59

       N.E.3d at 958. Therefore, we conclude that Jones’ claims of insufficient

       evidence to support his conviction are unavailing.



                                               Conclusion
[15]   The evidence presented by the State supports the judgment that Jones operated

       his vehicle with an alcohol content equivalent to at least .08 grams of alcohol

       per one hundred milliliters of blood. Jones’ conviction is therefore affirmed.


[16]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1708-CR-1854 | March 15, 2018   Page 8 of 8
