MEMORANDUM DECISION
                                                                   Mar 24 2015, 9:09 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be 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
Ellen M. O’Connor                                        Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Lisa Jacksen,                                            March 24, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1409-CR-406
        v.                                               Appeal from the Marion County
                                                         Superior Court Criminal Division 10
                                                         The Honorable Linda Brown, Judge
State of Indiana,                                        Cause No. 49F10-1308-CM-054456
Appellee-Plaintiff




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015      Page 1 of 9
[1]   Lisa Jacksen appeals following her conviction of class C misdemeanor

      Operating a Vehicle While Intoxicated (OVWI).1 Jacksen presents a single

      issue for our review: Did the State present sufficient evidence to support her

      conviction?

[2]   We affirm.

[3]   At about 4:20 a.m. on August 18, 2013, Officer Todd Wellman of the

      Indianapolis Metropolitan Police Department (IMPD) was dispatched to

      conduct a welfare check on the driver of a vehicle parked at a gas station.

      When Officer Wellman arrived, he discovered Jacksen asleep in the driver’s

      seat of the car with her seat belt on and the engine running. Officer Wellman

      attempted to wake Jacksen but was unsuccessful, so he went inside the gas

      station while waiting for a backup officer to arrive. The gas station attendant,

      who had originally called the police about the car, told Officer Wellman that

      the car had been in the parking lot for about forty-five minutes and that he had

      not observed anyone coming or going from the car during that time.


[4]   Officer Wellman went back outside and continued to try to wake Jacksen, and

      was eventually able to do so by slapping the roof of the car. Jacksen’s eyes were

      bloodshot and glassy, and she was slow to react to Officer Wellman and had

      difficulty rolling down her window. While speaking to Jacksen, Officer




      1
        Ind. Code Ann. § 9-30-5-2 (West, Westlaw current with all legislation of the 2015 First Regular Session of
      the 119th General Assembly effective through February 23, 2015).

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015               Page 2 of 9
      Wellman began to notice the odor of an alcoholic beverage on Jacksen’s breath.

      Shortly thereafter, IMPD Officer Klinton Streeter arrived on the scene and took

      over the investigation. Officer Streeter also noticed that Jacksen had glassy,

      bloodshot eyes and the odor of an alcoholic beverage on her breath. Officer

      Streeter administered three field sobriety tests, all of which Jacksen failed. At

      that point, Officer Streeter read Jacksen her Miranda rights and the Indiana

      implied consent law. Jacksen told Officer Streeter that she had been drinking at

      a friend’s house and was on her way home when she stopped at the gas station.

      Jacksen consented to a chemical test, and she was transported to an Indiana

      State Police Post. A breath test conducted at 5:11 a.m. indicated an alcohol

      concentration equivalent of 0.14 grams of alcohol per 210 liters of breath.

[5]   As a result of these events, the State charged Jacksen with class C misdemeanor

      OVWI and class C misdemeanor operating a vehicle with an alcohol

      concentration equivalent between 0.08 and 0.15. A two-day bench trial was

      conducted on April 28 and August 5, 2014, at the conclusion of which the trial

      court found Jacksen guilty as charged. The trial court merged the operating a

      vehicle with an alcohol concentration equivalent between .08 and .15 count into

      the OVWI conviction. Jacksen now appeals.


[6]   Jacksen argues that the State presented insufficient evidence to support her

      conviction. When reviewing the sufficiency of the evidence needed to support a

      criminal conviction, we neither reweigh evidence nor judge witness credibility.

      Thang v. State, 10 N.E.3d 1256 (Ind. 2014). We consider only “the evidence

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

      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 3 of 9
      such evidence.” Id. at 1258 (quoting Henley v. State, 881 N.E.2d 639, 652 (Ind.

      2008)). We will affirm a conviction “if there is substantial evidence of probative

      value supporting each element of the offense such that a reasonable trier of fact

      could have found the defendant guilty beyond a reasonable doubt.” Id. A

      finding of guilt may be based upon an inference that is reasonably drawn from

      the evidence. All inferences are viewed in a light most favorable to the

      conviction. Bailey v. State, 979 N.E.2d 133 (Ind. 2012).


[7]   To convict Jacksen of class C misdemeanor OVWI, the State was required to

      prove that Jacksen operated a vehicle while intoxicated. I.C. § 9-30-5-2.

      Jacksen first argues that the evidence was insufficient to establish that she

      operated the vehicle, analogizing the circumstances of this case to those in

      Hiegel v. State, 538 N.E.2d 265 (Ind. Ct. app. 1989), trans. denied, in which a

      conviction for OVWI was reversed where the defendant was discovered

      sleeping in his running car in the parking lot of a tavern. Jacksen’s argument in

      this regard is without merit. On the night of her arrest, Jacksen told Officer

      Streeter that she had driven from a friend’s house. At trial, Jacksen changed

      her story and claimed she had been at a bar in Broad Ripple, but she still

      admitted that she had driven to the gas station. Jacksen’s admissions in this

      regard were sufficient to establish that she operated the vehicle.

[8]   Jacksen next argues that the evidence was insufficient to establish that she was

      in an intoxicated state at the time she operated the vehicle. Her argument in

      this regard is premised on I.C. § 9-30-6-15 (West, Westlaw current with all



      Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 4 of 9
legislation of the 2015 First Regular Session of the 119th General Assembly

effective through February 23, 2015), which provides in relevant part as follows:

        If, in a prosecution for an offense under IC 9-30-5, evidence establishes
        that:
        (1) a chemical test was performed on a test sample taken from the
        person charged with the offense within the period of time allowed for
        testing under section 2 of this chapter; and
        (2) the person charged with the offense had an alcohol concentration
        equivalent to at least eight-hundredths (0.08) gram of alcohol per:
                (A) one hundred (100) milliliters of the person's blood at the
                time the test sample was taken; or
                (B) two hundred ten (210) liters of the person’s breath;
        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 or per two hundred ten (210) liters of the person’s breath at the
        time the person operated the vehicle. However, this presumption is
        rebuttable.
I.C. § 9-30-6-2 (West, Westlaw current with all legislation of the 2015 First

Regular Session of the 119th General Assembly effective through February 23,

2015) provides that “[a] test administered under this chapter must be

administered within three (3) hours after the law enforcement officer had

probable cause to believe the person committed an offense under IC 9-30-5 or a

violation under IC 9-30-15.” See Mordacq v. State, 585 N.E.2d 22, 26 (Ind. Ct.

App. 1992) (holding that “the three-hour limit expressed in I.C. 9-30-6-2(c)

begins not from the moment an officer ideates probable cause, but rather from

the moment at which the vehicle was operated in violation of I.C. 9-30-5”).




Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 5 of 9
[9]    According to Jacksen, the State is not entitled to rely on the presumption set

       forth in I.C. § 9-30-6-15 because it failed to prove that the chemical test was

       performed within three hours of the time she operated the vehicle. As an initial

       matter, we note that Jacksen was convicted under I.C. § 9-30-5-2, which does

       not require evidence of the defendant’s alcohol concentration equivalent. See

       Pickens v. State, 751 N.E.2d 331, 335 (Ind. Ct. App. 2001) (explaining that the

       defendant’s “intoxication could be established by a showing of impairment, as

       under Ind. Code § 9-30-5-2, there is no statutory requirement of proof of a

       particular blood alcohol content above which a person is intoxicated”).

       Although Jacksen was also charged under I.C. § 9-30-5-1 (West, Westlaw

       current with all legislation of the 2015 First Regular Session of the 119th

       General Assembly effective through February 23, 2015), which required the

       State to prove that she had an alcohol concentration equivalent between 0.08

       and 0.15 grams of alcohol per 210 liters of breath, that count was merged into

       her conviction under I.C. § 9-30-5-2.


[10]   To the extent Jacksen argues that the presumption set forth in I.C. § 9-30-6-15 is

       nevertheless relevant because the State relied upon the chemical test results as

       evidence of her intoxication, we conclude that the evidence favorable to the

       conviction establishes that the chemical test was, in fact, conducted within the

       three-hour time frame set forth in I.C. § 9-30-6-2. In support of her argument,

       Jacksen relies solely on her own trial testimony. Specifically, Jacksen testified

       that after having a total of three drinks at two separate bars in Broad Ripple, she

       left and began driving home at around 11:30 or midnight. Jacksen stated that


       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 6 of 9
       along the way, her GPS began to malfunction and she started feeling sick to her

       stomach, so she pulled over into the gas station parking lot, where she fell

       asleep. According to Jackson, because the breath test was conducted at 5:11

       a.m., it fell outside the three-hour window from the time she last operated the

       vehicle.

[11]   Jacksen’s testimony in this regard, however, is in direct conflict with other

       evidence presented at trial. Officer Streeter testified that Jacksen told him that

       she had been drinking at a friend’s house rather than a bar in Broad Ripple.

       Moreover, Officer Wellman was dispatched to the gas station at approximately

       4:20 a.m., and he arrived within five to eight minutes of the dispatch. When

       Officer Wellman spoke with the gas station attendant, who had called police

       concerning the vehicle, the attendant told him that the vehicle had been parked

       there for approximately forty-five minutes. Thus, the evidence most favorable

       to the conviction establishes that Jacksen arrived at the gas station after 3 a.m.,

       which means that the chemical breath test conducted at 5:11 a.m. fell well

       within the three-hour time frame set forth in I.C. § 9-30-6-2. Jacksen’s

       argument to the contrary is nothing more than a request to reweigh the

       evidence and consider evidence unfavorable to the judgment.

[12]   Moreover, even in the absence of a statutory presumption, the evidence was

       plainly sufficient to establish that Jacksen was intoxicated at the time she

       operated the vehicle. “Evidence of the following can establish impairment: (1)

       the consumption of significant amounts of alcohol; (2) impaired attention and

       reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5)

       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 7 of 9
       unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.”

       Pickens v. State, 751 N.E.2d at 335.


[13]   Jacksen does not appear to dispute that she was intoxicated at the time she

       encountered police at the gas station, and for good reason. Officers Wellman

       and Streeter both testified that she had glassy, bloodshot eyes and the odor of

       an alcoholic beverage on her breath. Officer Wellman testified that she was

       difficult to awaken, slow to react, and had difficulty rolling down her window.

       Moreover, Jacksen failed all three field sobriety tests Officer Streeter performed,

       and she admitted to Officer Streeter that she had been drinking at a friend’s

       house. Although Jacksen’s story changed somewhat at trial, she still admitted

       to having three drinks before driving to the gas station. Even without

       considering the chemical test results, this evidence was more than sufficient to

       establish that Jacksen was intoxicated at the time she encountered police. To

       the extent Jacksen implies that she could have become intoxicated during the

       period that elapsed between the time she ceased to operate the vehicle by

       parking at the gas station and the moment she encountered police, this

       possibility is foreclosed by her own testimony. At trial, when asked whether

       she had consumed any alcohol between the time she arrived at the gas station

       and the time she encountered police, Jacksen responded “No, absolutely not.”

       Transcript at 67. Under these circumstances, it was reasonable to infer that

       Jacksen was intoxicated at the time she operated the vehicle.


[14]   Judgment affirmed.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 8 of 9
Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A05-1409-CR-406 | March 24, 2015   Page 9 of 9
