MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    Feb 18 2016, 9:15 am

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
William Byer, Jr.                                        Gregory F. Zoeller
Byer & Byer                                              Attorney General of Indiana
Anderson, Indiana
                                                         Karl M. Scharnberg
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Demarkco Ray Arthur,                                     February 18, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         48A02-1508-CR-1088
        v.                                               Appeal from the Madison Circuit
                                                         Court
State of Indiana,                                        The Honorable Angela Warner
Appellee-Plaintiff.                                      Sims, Judge
                                                         Trial Court Cause No.
                                                         48C01-1406-FD-965



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016        Page 1 of 5
                                             Case Summary
[1]   Demarkco Arthur appeals his convictions for Class A misdemeanor operating a

      vehicle while intoxicated endangering a person and Class D felony operating a

      vehicle while intoxicated. We affirm in part and vacate in part.


                                                     Issue
[2]   Arthur raises one issue, which we restate as whether the evidence is sufficient to

      sustain his convictions.


                                                     Facts
[3]   On May 30, 2014, Indiana State Trooper Earnest Paige and his field training

      officer Indiana State Trooper Brad Quakenbush were patrolling at 1:40 a.m. in

      Anderson when they noticed Arthur’s vehicle repeatedly cross the double

      yellow centerline of the roadway. The third time that the vehicle crossed the

      centerline, it almost struck an oncoming vehicle. Trooper Paige initiated a

      traffic stop, and he saw that the driver, Arthur, had his head slumped onto his

      chest. Trooper Paige asked for Arthur’s driver’s license and registration, and

      Arthur said, “I just want to go home.” Tr. p. 81. Arthur fumbled through

      numerous cards and was unable to locate his license, and the passenger had to

      locate the registration. Arthur said that he was coming from the “local bar,”

      and Trooper Paige “strongly smelled the odor of alcohol.” Id. at 82-83. When

      asked how much he had to drink, Arthur said, “Not much.” Id. at 83. Arthur

      had bloodshot and glassy eyes. Trooper Paige had Arthur get out of his vehicle,

      and Arthur had to keep his hand on the car to maintain his balance. Arthur

      Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016   Page 2 of 5
      then performed the three standard field sobriety tests—the horizontal gaze and

      nystagmus, the walk and turn, and the one leg stand—and he failed all three

      tests. Arthur then refused to submit to a chemical test.


[4]   The State charged Arthur with Class A misdemeanor operating a vehicle while

      intoxicated endangering a person and Class D felony operating a vehicle while

      intoxicated with a prior conviction. A jury found Arthur guilty of Class A

      misdemeanor operating a vehicle while intoxicated with a prior conviction.

      Arthur then pled guilty to having a prior conviction, and the trial court entered

      a conviction for Class D felony operating a vehicle while intoxicated. The trial

      court sentenced him to 1095 days with 714 days on home detention and the

      remaining 365 days suspended to probation. Arthur now appeals.


                                                  Analysis
[5]   Arthur argues that the evidence is insufficient to sustain his convictions. When

      reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh evidence nor judge witness credibility. Bailey v.

      State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence

      supporting the judgment and any reasonable inferences that can be drawn from

      such evidence.” Id. We will affirm if there is substantial evidence of probative

      value such that a reasonable trier of fact could have concluded the defendant

      was guilty beyond a reasonable doubt. Id.


[6]   A person who operates a vehicle while intoxicated in a manner that endangers a

      person commits Class A misdemeanor operating a vehicle while intoxicated.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016   Page 3 of 5
      Ind. Code § 9-30-5-2(b). To support the Class D felony conviction, the State

      was required to prove that Arthur operated a vehicle while intoxicated having

      been previously convicted of operating while intoxicated within the preceding

      five years. Ind. Code § 9-30-5-3. Arthur claims that the State failed to prove

      that he was intoxicated.


[7]   Indiana law defines “intoxicated” 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(1). Impairment may 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; and (7) slurred speech.” Woodson v. State, 966 N.E.2d 135, 142

      (Ind. Ct. App. 2012), trans. denied.


[8]   The State presented evidence that Arthur repeatedly crossed the centerline and

      almost hit another vehicle. When the officers initiated a traffic stop, Arthur

      said that he had had just left the local bar, and Trooper Paige could smell

      alcohol. Arthur fumbled while attempting to locate his driver’s license and

      registration. His eyes were bloodshot and glassy, and after getting out of the

      vehicle, he had to steady himself by placing a hand on his vehicle. Arthur failed

      all three field sobriety tests. On appeal, Arthur argues that the evidence is

      insufficient because of some discrepancies between the officers’ testimony and

      the police reports. Arthur also argues that he swerved as a result of cigarette

      ash being dropped on his leg and that his balance was affected by an old injury.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016   Page 4 of 5
       These arguments are requests for us to reweigh the evidence and judge the

       credibility of the witnesses, which we cannot do. Bailey, 907 N.E.2d at 1005.

       We conclude that the evidence is sufficient to show that Arthur was

       intoxicated.


[9]    We sua sponte note that Arthur’s convictions for both Class A misdemeanor

       operating a vehicle while intoxicated and Class D felony operating a vehicle

       while intoxicated violate the prohibition against double jeopardy. See Puckett v.

       State, 843 N.E.2d 959, 964 (Ind. Ct. App. 2006) (concluding that merger was

       insufficient and remanding with instructions to vacate Class C misdemeanor

       operating while intoxicated conviction where it was a factually lesser included

       offense of Class D felony operating while intoxicated conviction). We conclude

       that the convictions violate double jeopardy and therefore remand with

       instructions to vacate the Class A misdemeanor conviction. As Arthur’s

       sentences were ordered to be served concurrently, the vacation of his Class A

       misdemeanor conviction does not affect the aggregate term of his sentence.


                                                 Conclusion
[10]   The evidence is sufficient to sustain Arthur’s conviction for Class D felony

       operating a vehicle while intoxicated. Arthur’s conviction for Class A

       misdemeanor operating a vehicle while intoxicated violates the prohibition

       against double jeopardy. We affirm in part and vacate in part.


[11]   Affirmed in part and vacated in part.


       Robb, J., and Altice, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 48A02-1508-CR-1088 | February 18, 2016   Page 5 of 5
