                                                                    FILED
MEMORANDUM DECISION                                            Jun 21 2016, 5:51 am

                                                                    CLERK
                                                                Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D),                             Court of Appeals
                                                                     and Tax Court
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
Bryan L. Cook                                            Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jesse N. Cole,                                           June 21, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A04-1512-CR-2045
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie Lemay-
Appellee-Plaintiff.                                      Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1412-CM-1311



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2045 | June 21, 2016    Page 1 of 6
                                       Statement of the Case
[1]   Jesse Cole (“Cole”) appeals his conviction by jury of operating a vehicle while

      intoxicated (“OVWI”) as a Class A misdemeanor.1 He challenges the

      sufficiency of the evidence to support the conviction. Concluding that the

      evidence is sufficient to support this conviction, we affirm.


[2]   Affirmed.


                                                     Issue
                 Whether there is sufficient evidence to support Cole’s conviction
                 of OVWI.


                                                     Facts
[3]   At approximately 1:30 a.m. on August 10, 2014, Plainfield Police Department

      Lieutenant Joseph Smock (“Lieutenant Smock”) was dispatched to a

      motorcycle accident on an Interstate 70 West off-ramp. When Lieutenant

      Smock arrived at the scene, he discovered Cole lying in a ravine 100 feet from

      the roadway. Lieutenant Smock also saw a motorcycle with its lights on lying

      on its side. It was located 50 to 100 feet from Cole. Cole had severe facial

      injuries and one of his eyes was swollen shut. Lieutenant Smock smelled a

      “very strong odor of alcohol or intoxicating beverage coming from [Cole]” and




      1
          IND. CODE § 9-30-5-2.


      Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2045 | June 21, 2016   Page 2 of 6
      noticed that his open eye was bloodshot and glossy. (Tr. 74). Cole was

      transported to IU Methodist Hospital.


[4]   Shortly thereafter, Lieutenant Smock went to the hospital with a search warrant

      for a sample of Cole’s blood. A forensic nurse took a blood sample, and, at

      approximately 3:30 a.m., Cole registered .24 gram of alcohol per one hundred

      milliliters of his blood. On December 19, 2014, the State charged Cole with

      OVWI as a Class A misdemeanor and operating a motor vehicle with an

      alcohol concentration equivalent to at least 0.15 gram of alcohol per 210 liters

      of the person’s breath or 100 milliliters of the person’s blood (“Operating Per Se

      (.15)”) as a Class A misdemeanor. Thereafter, Cole filed a motion to suppress

      the blood test results, which the trial court denied.


[5]   At the November 2015 trial, Cole’s theory of defense appeared to be that

      someone else was driving the motorcycle. Steve Carroll an investigator at the

      Hendricks County Prosecutor’s Office testified that he had “charted the whole

      path of the motorcycle” after the accident and had discovered that it had been

      sold “out of country.” (Tr. 287). According to Carroll, the motorcycle was a

      “crotch-rocket or sport bike,” which had passenger foot-pegs closer to the seat

      than most motorcycles. (Tr. 296). Carroll explained that “for a tall person to

      get on this motorcycle [as a passenger] would kind of be like a jockey riding a

      race horse.” (Tr. 297).


[6]   A jury convicted Cole of both charges. The trial court entered judgment of

      conviction for OVWI as a Class A misdemeanor and sentenced Cole to 365


      Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2045 | June 21, 2016   Page 3 of 6
      days in the Hendricks County Jail with 363 days suspended and credit of one

      day for one day served.2 (App. 25). Cole appeals.


                                                      Decision
[7]   Cole argues that there is insufficient evidence to support his OVWI conviction.

      Specifically, he contends that there is insufficient evidence that he was

      intoxicated. Our standard of review for sufficiency of the evidence claims is

      well settled. We 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 reweigh the evidence or judge witness credibility. Id. We

      will affirm the conviction unless no reasonable fact finder could find the

      elements of the crime proven beyond a reasonable doubt. Id. The evidence is

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

      verdict. Id. at 147.


[8]   To convict Cole of Class A misdemeanor OVWI, the State was required to

      prove beyond a reasonable doubt that Cole operated a vehicle while intoxicated

      in a manner that endangered a person. See I.C. § 9-30-5-2(b). “Intoxicated”




      2
        Both the CCS and the trial court’s completed Judgment of Conviction, Sentencing Order, and Order of
      Commitment reveal that the trial court entered judgment of conviction and a sentence only on the OVWI
      conviction. The record of the proceedings does not include a transcript from the sentencing hearing because
      Cole did not request it in his Notice of Appeal. Although not so stated, it appears that the trial court merged
      the Operating Per Se (.15) conviction with the OVWI conviction. See Green v. State, 856 N.E.2d 703, 704
      (Ind. 2006) (explaining that a merged offense for which a defendant is found guilty but on which there is
      neither a judgment or sentence is unproblematic as far as double jeopardy is concerned)..



      Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2045 | June 21, 2016                Page 4 of 6
       means “being 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. I.C. § 9-13-2-86(1). 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.

       Matlock v. State, 944 N.E.2d 936, 941 (Ind. Ct. App. 2011). Proof of a person’s

       blood alcohol content is not required to establish intoxication. Id. In addition,

       OVWI convictions may be supported by circumstantial evidence. Kremer, 643

       N.E. 2d at 360.


[9]    Here, our review of the evidence reveals that Lieutenant Smock noticed a

       strong odor of alcohol emanating from Cole and that Cole had a watery and

       bloodshot eye. In addition, Cole was found 100 feet from the roadway in a

       ravine and 50 to 100 feet from the overturned motorcycle. From this evidence a

       jury could reasonably infer that Cole had consumed alcohol and was impaired.

       Accordingly, this evidence supports the jury’s finding that Cole was intoxicated

       as well as Coles’ OVWI conviction.


[10]   We further note that Cole’s argument that there is insufficient evidence that he

       operated the motorcycle is nothing more than an invitation for us to reweigh

       the evidence and judge the credibility of witnesses, which we cannot do. See

       Drane, 867 N.E.2d at 146. First, the evidence reveals that Cole was the only

       person found at the scene of the accident and that the motorcycle was a “crotch-

       rocket,” making it difficult for passengers to ride. Further, none of the cases

       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2045 | June 21, 2016   Page 5 of 6
       cited by Cole support his argument because they all concern a defendant who

       left the scene of the accident. See Robinson v. State, 835 N.E.2d 518 (Ind. Ct.

       App. 2005) (Robinson was found 2-4 miles from the accident scene after it

       occurred); Flanagan v. State, 832 N.E.2d 1139 (Ind. Ct. App. 2005) (Flanagan

       was found walking toward a local convenience store after the accident); Floyd v.

       State, 399 N.E.2d 449 (Ind. Ct. App. 1980) (Floyd was found six blocks from

       the scene of the accident after it occurred). There is sufficient evidence to

       support Cole’s OVWI conviction.3


[11]   Affirmed.


[12]   Kirsch, J., and Riley, J., concur.




[1]    3
        Cole also makes multiple challenges to the admission of the blood test evidence. Specifically,
       he contends that the trial court erred in admitting this evidence because (1) the search warrant
       for Cole’s blood was not supported by probable cause, (2) the police made material
       misrepresentations in order to obtain the warrant; and (3) the State failed to establish a
       foundation that the blood draw protocol was prepared by a physician. However, we need not
       decide this issue because any error in the admission of the blood test evidence was harmless.
       Error is harmless if it does not affect the substantial rights of the defendant. Littler v. State, 871
       N.E.2d 276, 278 (Ind. 2007). Harmlessness is ultimately a question of the likely impact of the
       evidence on the jury. Id. Blood alcohol tests are not necessary to support a conviction for
       operating a vehicle while intoxicated pursuant to INDIANA CODE § 9-30-5-2. Pickens v. State,
       751 N.E.2d 331, 335 (Ind. Ct. App. 2001). Where there is no statutory requirement of proof
       of a particular blood-alcohol content above which a person is intoxicated, the State may prove
       intoxication by a showing of impairment. Id. Here, the State met that burden with evidence
       that amply supported the jury’s finding that Cole operated his vehicle while intoxicated. The
       test results likely had no impact on the jury’s verdict, and under these circumstances, any error
       in their admission was harmless. See Combs v. State, 895 N.E.2d 1252, 1259 (Ind. Ct. App.
       2016) (explaining that erroneous admission of Combs’ blood test results was harmless because
       the evidence otherwise amply supported the jury’s finding that Combs operated his vehicle
       while intoxicated and that test results likely had no impact on the jury’s verdict), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 32A04-1512-CR-2045 | June 21, 2016       Page 6 of 6
