MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                               FILED
regarded as precedent or cited before any                      Apr 28 2017, 9:38 am

court except for the purpose of establishing                        CLERK
the defense of res judicata, collateral                         Indiana Supreme Court
                                                                   Court of Appeals
                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
Brooklyn, Indiana                                        Attorney General of Indiana
                                                         Justin F. Roebel
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Terri Lynn Davis,                                        April 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         84A01-1609-CR-2237
        v.                                               Appeal from the Vigo Superior
                                                         Court
State of Indiana,                                        The Honorable Michael Rader,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         84D05-1604-CM-1023



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 1 of 9
[1]   Terri Lynn Davis appeals her conviction for driving while intoxicated while

      endangering a person as a class A misdemeanor. Davis raises one issue which

      we revise and restate as whether the evidence is sufficient to sustain her

      conviction. We affirm.


                                      Facts and Procedural History

[2]   On April 16, 2016, at around 8 p.m., Indiana State Police Trooper Brian Fyfe

      received a dispatch from Clay County of a red Kia “swerving all over the

      roadway” on Interstate 70 (“I-70”). Transcript 2 at 9. While Trooper Fyfe was

      still in Terre Haute, another call came in from Vigo County about the vehicle.

      That call indicated that the vehicle was driving over the road’s rumble strips

      and then returning to the median side of the road, driving in both lanes, driving

      on the shoulder, and driving on the line. Trooper Fyfe proceeded to I-70 to

      look for the vehicle.


[3]   While waiting for the Kia to pass him on the interstate, a third call came in

      stating that the vehicle had exited at mile marker 11 on I-70 and State Road 46.

      Trooper Fyfe drove to that exit and came upon a red Kia parked at a gas station

      and noticed that the front right tire was partially on the top of the yellow curb

      and parked in a manner that did not line up with the position of the gas pumps.

      He parked behind the vehicle and entered the gas station.


[4]   Inside, Trooper Fyfe looked for the driver and learned from an employee that

      the driver, later identified as Davis, was in a bathroom stall and there was a

      prescription pill bottle on the floor. Trooper Fyfe waited for about fifteen


      Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 2 of 9
      minutes for Davis to exit the bathroom. After she did so, Trooper Fyfe asked

      her if she had been driving the red Kia and she indicated that she had. He

      asked Davis if they could step outside, and she agreed.


[5]   Outside, Davis had a difficult time balancing, and she leaned against her

      vehicle. Trooper Fyfe observed that her eyes were bloodshot and really glassy.

      He asked her if she had been driving on I-70 and if there would be any reason

      for people to have called the police about her driving. Davis stated that she was

      traveling on I-70 from Martinsville to Kansas to meet somebody and she was

      having trouble keeping her eyes open and was seeing spots. Davis also said that

      was she driving over the rumble strips in order to stay awake and that she had

      taken prescription medication, including Xanax, Ambien, and Vicodin, and had

      one or more drinks in Martinsville just before leaving.


[6]   Davis gave Trooper Fyfe permission to search her vehicle, and he found a gas

      station cup which smelled of alcohol that Davis explained was a “Budweiser

      StrawberRita” which “she had used [] to wash her medications down.” Id. at

      17. Trooper Fyfe also recovered prescription bottles for the drugs that Davis

      had said she had taken that day.


[7]   After the search, Trooper Fyfe administered three field sobriety tests, each of

      which Davis failed, and she exhibited all six clues of intoxication on the

      horizontal gaze nystagmus test. She also exhibited seven of eight clues on the

      nine-step walk and turn test and all four clues on the one-leg-stand test, and

      Trooper Fyfe decided to end the test early because she was having a hard time


      Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 3 of 9
       keeping her balance. He administered a portable breath test which indicated

       the presence of alcohol. Based on his observations, his training, experience,

       education, and background as a trooper, Trooper Fyfe made a determination

       that Davis was impaired. He offered her a chemical test, she consented, and he

       drove her to the hospital for a blood draw. Trooper Fyfe decided not to

       administer a breath test because that test does not test for intoxicants other than

       alcohol. While at the hospital, Davis kept falling asleep and had to be woken

       up by the doctors and nurses.


[8]    On April 18, 2016, the State charged Davis with Count I, operating a vehicle

       while intoxicated endangering a person as a class A misdemeanor; Count II,

       operating a vehicle with a Schedule I or II controlled substance or its metabolite

       in the body as a class C misdemeanor based on THC; and Count III, operating

       a vehicle with a Schedule I or II controlled substance or its metabolite in the

       body as a class C misdemeanor based on opiates.


[9]    On August 31, 2016, the court held a bench trial at which Davis testified that

       “[e]very day for the last ten years, I take my medication.” Id. at 32. She also

       testified that she had a knee brace she was ordered to wear by a doctor except

       when she was driving. The court found Davis guilty on Count I and dismissed

       the remaining charges.


                                                    Discussion

[10]   The issue is whether the evidence is sufficient to sustain Davis’s conviction for

       operating a vehicle while intoxicated while endangering a person as a class A


       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 4 of 9
       misdemeanor. When reviewing the sufficiency of the evidence to support a

       conviction, we must consider only the probative evidence and reasonable

       inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind.

       2007). We do not assess witness credibility or reweigh the evidence. Id. We

       consider conflicting evidence most favorably to the trial court’s ruling. Id. We

       affirm the conviction unless “no reasonable fact-finder could find the elements

       of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State,

       726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

       overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

       is sufficient if an inference may reasonably be drawn from it to support the

       verdict. Id.


[11]   The offense of operating a vehicle while intoxicated is governed by Ind. Code §

       9-30-5-2, which provides that “a person who operates a vehicle while

       intoxicated commits a Class C misdemeanor,” but “[a]n offense . . . is a Class A

       misdemeanor if the person operates a vehicle in a manner that endangers a

       person.”


[12]   Davis argues that the State failed to prove that she was intoxicated.

       “Intoxicated” means under the influence of alcohol, a controlled substance or a

       combination of them “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. “The State need not present separate proof of impairment of action,

       impairment of thought, and loss of control of faculties to establish an

       individual’s intoxication.” Woodson v. State, 966 N.E.2d 135, 142 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 5 of 9
       2012), trans. denied. Rather, a person’s impairment is to be determined by

       considering his capability as a whole, not component by component, such that

       impairment of any of these three abilities equals impairment. Id. Such

       impairment can be established by evidence of: (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. Id. (citing Fought v. State,

       898 N.E.2d 447, 451 (Ind. Ct. App. 2008)). Proof of intoxication does not

       require proof of a Blood Alcohol Content level. Ballinger v. State, 717 N.E.2d

       939, 943 (Ind. Ct. App. 1999); Jellison v. State, 656 N.E.2d 532, 535 (Ind. Ct.

       App. 1995).


[13]   Davis argues that the State did not present evidence that she consumed a

       significant amount of alcohol or of her blood alcohol content and that “[t]he

       only evidence that [she] had possibly consumed alcohol that day was a cup

       Trooper Fyfe saw sitting in the center console of Davis’s car that had alcohol in

       it,” in which she testified at trial “that the cup . . . was trash from an earlier

       party.” Appellant’s Brief at 10. She asserts that the only signs of impairment

       included her unsteady balance and failure of the field sobriety tests, which she

       explained “were a result of her physical disability and not intoxication.” Id.

       She also argues that, while she acknowledges she was driving erratically, she

       “indicated that she was tired and intentionally hitting the rumble strips to stay

       alert . . . .” Id. The State contends that Davis ignores evidence that she had

       trouble keeping her eyes open, her eyes were bloodshot and glassy, she was


       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 6 of 9
       observed “swerving all over the roadway,” and that “her total failure of the

       horizontal gaze nystagmus test was not related to her knee issues.” Appellee’s

       Brief at 12. It also points to her admission to Trooper Fyfe that she had

       consumed drugs and alcohol before starting her drive.


[14]   The record reveals that the initial dispatch received was a report of a red Kia

       “swerving all over the roadway” on I-70, and that a total of three calls regarding

       Davis’s vehicle were received. Transcript 2 at 9. The second call reported that

       the Kia was driving over the road’s rumble strips and then returning to the

       median side of the road, driving in both lanes, driving on the shoulder, and

       driving on the line. When Trooper Fyfe came upon the gas station where Davis

       was parked, he observed that the Kia was parked with the front right tire

       partially on the top of the yellow curb and in a manner that did not line up with

       the position of the gas pumps. The gas station employee told Trooper Fyfe that

       Davis was in the bathroom and that there was a prescription pill bottle on the

       floor. Davis admitted to driving the Kia.


[15]   Upon exiting the gas station, Trooper Fyfe observed that she had a difficult

       time balancing and leaned against her vehicle and that her eyes were bloodshot

       and really glassy. Davis indicated that she was having trouble keeping her eyes

       open and was seeing spots. She reported driving over the rumble strips in order

       to stay awake and that she had taken prescription medication, including Xanax,

       Ambien, and Vicodin, and had one or more drinks in Martinsville just before

       leaving. Trooper Fyfe searched the vehicle and recovered the cup which



       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 7 of 9
       smelled of alcohol that Davis explained was a “Budweiser StrawberRita” which

       “she had used [] to wash her medications down.” Id. at 17.


[16]   Davis failed three field sobriety tests, including the horizontal gaze nystagmus

       test, the step walk and turn test, and the one-leg-stand test, which Trooper Fyfe

       had to end prematurely because Davis was having trouble keeping her balance.

       Trooper Fyfe also administered a portable breath test which indicated the

       presence of alcohol. Trooper Fyfe determined that Davis was impaired based

       on his observations of her, his training, experience, education, and his

       background as a trooper.           While at the hospital for the chemical test, Davis

       kept falling asleep and had to be woken up by the doctors and nurses. We find

       that such testimony is sufficient to support Davis’s conviction. See Woodson,

       966 N.E.2d at 142 (citing Wright v. State, 772 N.E.2d 449, 460 (Ind. Ct. App.

       2002) (“With respect to the sufficiency of the evidence upon the element of

       intoxication, it is established that a nonexpert witness may offer an opinion

       upon intoxication, and a conviction may be sustained upon the sole testimony

       of the arresting officer.”)). Davis’s arguments are “little more than a request to

       reweigh the evidence, which we will not do.” See id.


[17]   Based upon the record, we cannot say that the inferences made by the fact

       finder were unreasonable. Thus, we conclude that evidence of probative value

       exists from which the court could have found Davis guilty beyond a reasonable

       doubt of operating a vehicle while intoxicated endangering a person as a class A

       misdemeanor. See Broderick v. State, 249 Ind. 476, 479-480, 231 N.E.2d 526,

       527-528 (1967) (holding that the jury was warranted in finding that the

       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 8 of 9
       defendant was intoxicated where two witnesses testified that in their opinion

       the defendant was intoxicated, defendant’s car smelled of alcohol, defendant

       weaved from side to side of the road, and defendant’s speech was “thick”), cert.

       denied, 393 U.S. 872, 89 S. Ct. 161 (1968); Fought, 898 N.E.2d at 451 (holding

       that the evidence was sufficient to sustain the defendant’s conviction for public

       intoxication where police officers smelled a strong odor of alcohol emanating

       from the interior of the vehicle and from the defendant’s breath, the defendant

       was uncooperative, unsteady, slurred his speech, and his eyes were red, watery,

       and bloodshot); Hall v. State, 174 Ind. App. 334, 336-337, 367 N.E.2d 1103,

       1106-1107 (1977) (holding that the evidence was sufficient to sustain the

       defendant’s conviction for driving while under the influence of liquor where

       witnesses who saw the defendant immediately following the accident believed

       that she was intoxicated, the defendant’s car smelled of alcohol, and her vehicle

       was “driving very fast” and “out of control”).


                                                   Conclusion

[18]   For the foregoing reasons, we affirm Davis’s conviction for operating a vehicle

       while intoxicated endangering a person as a class A misdemeanor.


[19]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 84A01-1609-CR-2237 | April 28, 2017   Page 9 of 9
