MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            May 16 2018, 9:25 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.
Oldenburg, Indiana                                      Attorney General of Indiana

                                                        Lyubov Gore
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Heath Bradley,                                          May 16, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A02-1709-CR-2170
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Christina
Appellee-Plaintiff.                                     Klineman, Judge
                                                        Trial Court Cause No.
                                                        49G08-1701-CM-1652



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018            Page 1 of 10
                                            Case Summary
[1]   Heath Bradley appeals his conviction for Class A misdemeanor operating a

      vehicle while intoxicated with an alcohol concentration equivalent (“ACE”) of

      0.15 or more. We affirm.


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

      to sustain his conviction.


                                                    Facts
[3]   On January 11, 2017, Officer Nicholas Ragsdell of the Indianapolis

      Metropolitan Police Department was dispatched to Westfield Boulevard for a

      report of a “potential stolen vehicle.” Tr. Vol. II p. 8. When Officer Ragsdell

      arrived in the area shortly after the first dispatch, he “received a second call

      from dispatch stating that the subject had returned to the residence and now the

      vehicle was park[ed] in the driveway.” Id. at 10. Officer Ragsdell and other

      officers went to the residence, and Bradley’s mother asked the officers to come

      inside. She took them to a bedroom where they found Bradley on the bed

      wearing his coat. Bradley sat up and told the officers:


              He began to tell me his story of he had just recently moved back
              to the area. I believe he was staying out of State. He moved in
              with his mother. His mother had just recently purchased the
              vehicle is what he told me for his use to look for a job and that
              she nags him all the time and just basically that he had just had it
              and he just needed to go for a drive. He didn’t really go


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 2 of 10
              anywhere. He just circled the block and he didn’t steal the car.
              He just took it for a spin around the block.


      Id. at 11. As Bradley was talking, Officer Ragsdell noticed “signs of

      impairment.” Id. at 12. The officer noted:


              When [Bradley] stood up from the bed, his balance wasn’t
              steady. He had to have his hand on the bed to balance himself as
              he spoke to us and lean against the door frame and as we
              continued to speak. Throughout his conversation, I could
              definitely smell the odor of alcoholic beverage coming off his
              breath. He slurred some of his words. Not to the point that I felt
              like I couldn’t understand him, but definitely a little impaired.


      Id. Officer Ragsdell requested a DUI unit to assist, and Officer Craig Wildauer

      arrived on the scene. Officer Wildauer noticed that Bradley had a strong odor

      of alcoholic beverages on his person, that his speech was slurred, and that his

      eyes were glassy and bloodshot. Bradley told Officer Wildauer that he had

      been drinking vodka, that he had driven the vehicle, and that he had not

      consumed any alcohol after he got home. Bradley did not cooperate with

      performing the field sobriety tests and was sarcastic, claiming that he would

      “beat this.” Id. at 20. Bradley refused to submit to a chemical test, and Officer

      Wildauer obtained a search warrant for Bradley’s blood, which revealed an

      ACE of 0.324. The keys to the vehicle were found in Bradley’s coat pocket

      when he was arrested.


[4]   The State charged Bradley with Class A misdemeanor conversion, Class C

      misdemeanor operating a vehicle while intoxicated, and Class A misdemeanor


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 3 of 10
      operating a vehicle while intoxicated with an ACE of 0.15 or more. During

      Bradley’s bench trial, the State sought to admit the recording of the 911 call

      from Bradley’s mother. Bradley objected because his mother had been

      “excluded from the Trial.”1 Id. at 6. The trial court excluded the recording of

      the 911 call. When Officer Ragsdell testified, Bradley objected to the officer’s

      testimony that “[w]e were dispatched on a possible stolen vehicle. The caller

      knew the person who she thought stole the car and believed that he was

      intoxicated.” Id. at 9. The trial court allowed the testimony “to show why the

      officer went to the call as not substantive.” Id. Bradley did not object to Officer

      Ragsdell’s testimony regarding the second call from dispatch.


[5]   The trial court dismissed the conversion charge. The trial court found Bradley

      guilty of the remaining charges but only imposed a conviction and sentence for

      Class A misdemeanor operating a vehicle while intoxicated with an ACE of .15

      or more. Bradley now appeals.


                                                        Analysis
[6]   Bradley argues that the evidence is insufficient to sustain his conviction. In

      reviewing the sufficiency of the evidence, we neither reweigh the evidence nor

      judge the credibility of witnesses. Willis v. State, 27 N.E.3d 1065, 1066 (Ind.

      2015). We only consider “the evidence supporting the judgment and any

      reasonable inferences that can be drawn from such evidence.” Id. A conviction




      1
          The record does not indicate the reason for her exclusion.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 4 of 10
      will be affirmed 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. “‘It is the job of the fact-

      finder to determine whether the evidence in a particular case sufficiently proves

      each element of an offense, and we consider conflicting evidence most

      favorably to the trial court’s ruling.’” Id. at 1066-67 (quoting Wright v. State, 828

      N.E.2d 904, 906 (Ind. 2005)).


[7]   Indiana Code Section 9-30-5-1(b) provides: “A person who operates a vehicle

      with an alcohol concentration equivalent to at least fifteen-hundredths (0.15)

      gram of alcohol per: (1) one hundred (100) milliliters of the person’s blood; or

      (2) two hundred ten (210) liters of the person’s breath; commits a Class A

      misdemeanor.”


[8]   Bradley first argues that the evidence is insufficient to show that he operated the

      vehicle. Several factors may be examined to determine whether a defendant

      has “operated” a vehicle: “(1) the location of the vehicle when it is discovered;

      (2) whether the car was moving when discovered; (3) any additional evidence

      indicating that the defendant was observed operating the vehicle before he or

      she was discovered; and (4) the position of the automatic transmission.”

      Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied. In

      addition to these four factors, “[a]ny evidence that leads to a reasonable

      inference should be considered.” Id.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 5 of 10
[9]    Bradley argues that none of the officers saw him operating the vehicle and that,

       pursuant to the corpus delicti rule, his admission, without more, is insufficient

       to sustain his conviction. The corpus delicti rule provides:


               In Indiana, a person may not be convicted of a crime based solely
               on a nonjudicial confession of guilt. Green v. State, 159 Ind. App.
               68, 304 N.E.2d 845, 848 (1973). Rather, independent proof of
               the corpus delicti is required before the defendant may be
               convicted upon a nonjudicial confession. Id. Proof of the corpus
               delicti means “proof that the specific crime charged has actually
               been committed by someone.” Walker v. State, 249 Ind. 551, 233
               N.E.2d 483, 488 (1968). Thus, admission of a confession
               requires some independent evidence of commission of the crime
               charged. Workman v. State, 716 N.E.2d 445, 447 (Ind. 1999).
               The independent evidence need not prove that a crime was
               committed beyond a reasonable doubt, but merely provide an
               inference that the crime charged was committed. Malinski v.
               State, 794 N.E.2d 1071, 1086 (Ind. 2003). This inference may be
               created by circumstantial evidence. Id.


               The purpose of the corpus delicti rule is to prevent the admission
               of a confession to a crime which never occurred. Hurt v. State,
               570 N.E.2d 16, 19 (Ind. 1991). The State is not required to prove
               the corpus delicti by independent evidence prior to the admission
               of a confession, as long as the totality of independent evidence
               presented at trial establishes the corpus delicti. McManus v. State,
               541 N.E.2d 538, 539-40 (Ind. 1989).


       Shinnock v. State, 76 N.E.3d 841, 843 (Ind. 2017).


[10]   Bradley argues that, without his confession, there was no independent evidence

       that he operated the vehicle. The State contends that the “officers were able to

       corroborate the report of the stolen vehicle by an intoxicated driver as soon as

       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 6 of 10
       they reached Defendant’s home and spoke to his mother.” Appellee’s Br. p. 17.

       Bradley responds that his mother was excluded as a witness, the 911 call was

       not admitted, and Officer Ragsdell’s testimony regarding the dispatch call was

       not admitted as substantive evidence.


[11]   Much of the evidence regarding Bradley driving his mother’s vehicle was

       excluded, including the recording of the 911 call. However, Officer Ragsdell

       did testify, without objection, that he was dispatched to the residence for a

       report of a “potential stolen vehicle.” Tr. Vol. II p. 8. He also testified, without

       objection that, shortly after the first dispatch, he “received a second call from

       dispatch stating that the subject had returned to the residence and now the

       vehicle was park[ed] in the driveway.” Id. at 10. When they arrived at the

       residence, the vehicle in question was parked in the driveway. Bradley’s

       mother then led the officers to Bradley, who was on a bed in a bedroom still

       wearing his coat. The keys to the vehicle were in Bradley’s coat pocket. This

       circumstantial evidence provided an inference that the crime charged was

       committed. Consequently, the corpus delicti rule does not apply here, and

       Bradley’s confession is admissible. Bradley told Officer Ragsdell that “he just

       needed to go for a drive” and that he “just circled the block.” Id. at 11. He also

       told Officer Wildauer that he had driven the vehicle. The State presented

       sufficient evidence to show that Bradley operated the vehicle. See, e.g., Weida v.

       State, 693 N.E.2d 598, 600 (Ind. Ct. App. 1998) (holding that corpus delicti was

       established where the defendant and another person were the only people near

       the vehicle that was in a ditch), trans. denied.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 7 of 10
[12]   Next, Bradley contends that there is no evidence as to whether he was

       intoxicated at the time he drove the vehicle. In support of this argument, he

       relies on Flanangan v. State, 832 N.E.2d 1139 (Ind. Ct. App. 2005). There, an

       officer stopped to help with a disabled vehicle. The officer did not know how

       long the vehicle had been sitting on the side of the roadway. The officer found

       the defendant, who was intoxicated. We concluded that the evidence was

       insufficient to sustain the defendant’s conviction for operating while intoxicated

       because there was no evidence presented as to when the defendant consumed

       the alcohol. “This is so because it could be that Flanagan consumed beer after

       the vehicle broke down, and when the beers were all gone, the men decided to

       venture to a nearby store to call for assistance.” Flanangan, 832 N.E.2d at 1141.

       Here, though, only a few minutes had passed between the time Officer Ragsdell

       was dispatched to the residence and the time that he found Bradley to be highly

       intoxicated.


[13]   Additionally, the State directs our attention to Indiana Code Section 9-30-6-

       15(b), which provides:


               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:
       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 8 of 10
                       (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.


       The time period allowed for testing under Indiana Code Section 9-30-6-2 is

       three hours. Although this statute specifically refers to an ACE of at least 0.08,

       our court has held that the same concept applies in situations concerning higher

       blood alcohol levels. Jackson v. State, 67 N.E.3d 1166, 1170 (Ind. Ct. App.

       2017). In Jarrell v. State, 852 N.E.2d 1022, 1029 (Ind. Ct. App. 2006), we held

       that “a timely BAC test result permits a presumption that the defendant had an

       identical BAC at the time he or she was driving.” Specifically, in Jarrell, we

       held that the defendant’s timely test result of 0.16 BAC allowed for a

       presumption that he had a. 16 BAC when he was driving. Jarrell, 852 N.E.2d at

       1029.


[14]   Here, Officer Ragsdell was dispatched at 11:42 p.m., and the chemical blood

       test was administered at 1:27 a.m., within the three-hour time frame. Bradley’s

       ACE was 0.324, much more than 0.15. Consequently, a presumption existed

       that Bradley had an ACE of at least 0.15 at the time he operated the vehicle.

       We conclude that the evidence is sufficient to sustain Bradley’s conviction for

       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 9 of 10
       Class A misdemeanor operating a vehicle while intoxicated with an ACE of

       0.15 or more.


                                                Conclusion
[15]   The evidence is sufficient to sustain Bradley’s conviction for Class A

       misdemeanor operating a vehicle while intoxicated with an ACE of 0.15 or

       more. We affirm.


[16]   Affirmed.


       Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2170| May 16, 2018   Page 10 of 10
