MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                           FILED
regarded as precedent or cited before any                              Mar 05 2020, 9:38 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
Barbara J. Simmons                                       Curtis T. Hill, Jr.
Batesville, Indiana                                      Attorney General of Indiana
                                                         Myriam Serrano
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Timothy L. Jackson,                                      March 5, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1788
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Clayton A. Graham,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G07-1810-CM-35027



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1788 | March 5, 2020                  Page 1 of 5
                                               Case Summary
[1]   Timothy L. Jackson (“Jackson”) appeals his conviction for operating a vehicle

      while intoxicated.1 He presents the sole issue of whether the evidence is

      sufficient to support his conviction. We affirm.



                                Facts and Procedural History
[2]   On September 15, 2018, Indiana State Police were conducting a sobriety

      checkpoint in Marion County, Indiana. Around 11:45 p.m., Jackson

      approached the sobriety checkpoint and was stopped. Officer Faulk was

      conducting Jackson’s sobriety check and told him to turn off his vehicle because

      it was moving forward. Officer Faulk then asked Jackson to supply him with

      his license and vehicle registration.


[3]   During this transaction, Officer Faulk noticed an odor of alcohol and saw that

      Jackson’s eyes were watery and reddish in color. Officer Faulk asked Jackson

      whether he had anything to drink and Jackson acknowledged that he had.

      Officer Faulk then asked Jackson to step out of the vehicle. After realizing

      Jackson was disabled, Officer Faulk assisted Jackson out of the vehicle. Officer

      Faulk then offered to conduct a portable breath test and horizontal gaze

      nystagmus field sobriety test (“HGN Test”). Jackson declined to take the

      portable breath test and failed the HGN Test. Subsequently, Jackson was




      1
          Ind. Code § 9-30-5-2(a). Jackson is not appealing his conviction for driving while suspended.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1788 | March 5, 2020                       Page 2 of 5
      transported to Marion County Jail for a blood draw that was supported by a

      search warrant. The blood draw occurred one hour and forty-five minutes after

      the stop and results established that Jackson’s blood alcohol concentration was

      .087.


[4]   Jackson was charged with Count I driving while suspended pursuant to Ind.

      Code Section 9-24-19-2, as a Class A misdemeanor; Count II operating a

      vehicle while intoxicated, Class C misdemeanor pursuant to Ind. Code Section

      9-30-5-2(a); and Count III, operating a vehicle with an ACE of .08 or more,

      pursuant to Ind. Code. Section 9-30-5-1(a), as a Class C misdemeanor. The

      trial court found Jackson guilty of Count I and II, but not Count III.


[5]   For Count I the trial court imposed a sentence of 365 days, 363 days suspended

      with credit for 2 days, and Count II, 60 days, 58 days suspended with credit for

      2 days be served consecutive to Count I and ordered probation for 180 days

      with alcohol treatment. Jackson now appeals.



                                 Discussion and Decision
[6]   Jackson contends the evidence is insufficient to support his conviction.

      Specifically, he claims a lack of evidence of impairment.


[7]   When reviewing a claim of sufficiency of the evidence, we do not reweigh the

      evidence or judge the credibility of the witnesses. Jones v. State, 783 N.E.2d

      1132, 1139 (Ind. 2003). We look only to the probative evidence supporting the

      judgement and the reasonable inferences that may be drawn from that evidence

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1788 | March 5, 2020   Page 3 of 5
      to determine whether a reasonable trier of fact could conclude the defendant

      was guilty beyond a reasonable doubt. Id. Reversal would only be appropriate

      when no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007).


[8]   The State alleged that Jackson committed a Class C Misdemeanor of operating

      a vehicle while intoxicated. To be convicted of this crime, the State must prove

      that Jackson (1) operated a vehicle; and (2) while intoxicated. I.C. § 9-30-5-2(a).

      Because it is not disputed that Jackson was operating a vehicle, only the second

      element in this case is in dispute. Indiana law defines intoxication as “under

      the influence of alcohol ‘so that there is an impaired condition of thought and

      action and the loss of normal control a person’s faculties.’” Ind. Code § 9-13-2-

      86. This Court has determined that “impairment can be established by

      evidence of the following: ‘(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).


[9]   The evidence and reasonable inferences to be drawn therefrom most favorable

      to the judgment are as follows. Jackson admitted to consuming alcohol that

      evening, had alcohol in his car, and there was an odor of alcohol that was

      emanating from him. The officer noted that Jackson had watery, red eyes; and

      Jackson did not stop the vehicle when arriving at the traffic stop. As a result,

      Jackson was ordered to turn off the vehicle and step out of it. Lastly, Jackson

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1788 | March 5, 2020   Page 4 of 5
       was unsteady, declined to take the portable breathalyzer test, failed the HGN

       Test, and had a blood alcohol level of .087. Although Jackson contends that he

       was unsteady because of his disability rather than intoxication, this court

       cannot reweigh the evidence nor judge the credibility of witnesses. Jones, 783

       N.E.2d at 1139.


[10]   Here, there is sufficient evidence from which a reasonable fact-finder could

       conclude that Jackson was intoxicated while operating a vehicle.


[11]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1788 | March 5, 2020   Page 5 of 5
