MEMORANDUM DECISION
                                                                      FILED
Pursuant to Ind. Appellate Rule 65(D), this                       Apr 11 2018, 9:07 am
Memorandum Decision shall not be regarded as
                                                                      CLERK
precedent or cited before any court except for the                Indiana Supreme Court
                                                                     Court of Appeals
purpose of establishing the defense of res judicata,                   and Tax Court
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Abraham A. Navarro                                     Curtis T. Hill, Jr.
Chief Public Defender                                  Attorney General of Indiana
Clark County Public Defender Office
                                                       Jesse R. Drum
Jeffersonville, Indiana
                                                       Deputy Attorney General
                                                       Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Stanley Harris,                                            April 11, 2018

Appellant-Defendant,                                       Court of Appeals Case No.
                                                           10A04-1709-CR-2216

        v.                                                 Appeal from the Clark Circuit Court
                                                           The Hon. Joseph P. Weber, Judge
State of Indiana,                                          Trial Court Cause No.
                                                           10C03-1609-CM-1923
Appellee-Plaintiff.




Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 10A04-1709-CR-2216 | April 11, 2018     Page 1 of 6
                                          Case Summary
[1]   In August of 2016, Indiana State Police Trooper James Ferguson stopped

      Appellant-Defendant Stanley Harris after noticing Harris speeding and driving

      erratically. Two open containers of alcohol were found in Harris’s vehicle, he

      smelled of alcohol, he behaved unusually, his clothing was disheveled, and his

      eyes were bloodshot and glassy. Despite Trooper Ferguson being unable to

      administer field sobriety tests (“FSTs”) or obtain a sufficient breath sample

      from Harris to analyze for alcohol, the State charged Harris with Class A

      misdemeanor operating a vehicle while intoxicated (“OWI”) endangering a

      person, and the trial court found him guilty as charged. Harris contends that

      the State produced insufficient evidence to establish that he intoxicated when

      stopped. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   Early in the morning of August 26, 2016, Trooper Ferguson encountered Harris

      in Clark County driving a van seventy-one miles per hour in a thirty-five-miles-

      per-hour zone. Trooper Ferguson observed Harris veer toward an interstate

      exit, swerve back over two sets of lane dividers, and straddle the dashed lane

      dividers. Based on his observations, Trooper Ferguson believed that the driver

      of the van was impaired. After Trooper Ferguson activated his emergency

      lights and siren, it took Harris approximately a minute to stop. When Harris

      stopped, he swung open his door and started to exit the van, which was highly

      unusual in Trooper Ferguson’s experience.


      Court of Appeals of Indiana | Memorandum Decision 10A04-1709-CR-2216 | April 11, 2018   Page 2 of 6
[3]   When Trooper Ferguson asked Harris if he had been drinking, Harris admitted

      that he had. Trooper Ferguson noticed that Harris’s breath and body smelled

      like alcohol. Harris’s shirt was unbuttoned, his clothing “unorganized[,]” and

      his eyes bloodshot and glassy. Tr. Vol. II p. 20. Trooper Ferguson tried to

      administer FSTs, but Harris claimed that he an “eye issue” caused by a head

      injury, so Trooper Ferguson did not administer the horizontal gaze nystagmus

      test. Trooper Ferguson did not administer the other FSTs because Harris also

      claimed to have a back injury. After administering a portable breath test at the

      scene, Trooper Ferguson took Harris into custody. An inventory of Harris’s

      van revealed a partially consumed can of beer and a partially consumed “small

      bottle of fireball brand liquor.” Tr. Vol. I p. 26–27. At the county jail, three

      times Harris failed to provide a sufficient sample for the chemical breath test.

      Based on Trooper Ferguson’s observations, Harris was booked for OWI.


[4]   On September 7, 2016, the State charged Harris with Class A misdemeanor

      OWI. After the State presented evidence at the bench trial held on September

      26, 2017, Harris moved for a directed verdict, which the trial court denied.

      Harris then testified on his own behalf. After presentation of the evidence, the

      trial court found Harris guilty as charged and sentenced him to one year of

      probation.


                                 Discussion and Decision
[5]   Harris contends that the trial court erred in denying his motion for directed

      verdict and that the State failed to produce evidence sufficient to sustain the



      Court of Appeals of Indiana | Memorandum Decision 10A04-1709-CR-2216 | April 11, 2018   Page 3 of 6
      trial court’s finding that he was intoxicated when Trooper Ferguson stopped

      him. As for Harris’s claim related to his motion for directed verdict, Harris

      presented evidence on his own behalf following the trial court’s denial of his

      motion, he has waived the issue for appellate review and we treat this issue as

      one of general insufficiency of the evidence. See Farris v. State, 753 N.E.2d 641,

      647 (Ind. 2001).


              When reviewing the sufficiency of the evidence to support a
              conviction, appellate courts must consider only the probative
              evidence and reasonable inferences supporting verdict. It is the
              fact-finder’s role, not that of appellate courts, to assess witness
              credibility and weigh the evidence to determine whether it is
              sufficient to support a conviction. To preserve this structure,
              when appellate courts are confronted with conflicting evidence,
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.
      Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

      quotations omitted). “In essence, we assess only whether the verdict could be

      reached based on reasonable inferences that may be drawn from the evidence

      presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

      original). “We will not reweigh conflicting evidence or judge the credibility of

      witnesses.” Heaton v. State, 483 N.E.2d 58, 59 (Ind. 1985).


[6]   To convict Harris of Class A misdemeanor OWI, the State was required to

      prove that he “operate[d] a vehicle while intoxicated … in a manner that

      Court of Appeals of Indiana | Memorandum Decision 10A04-1709-CR-2216 | April 11, 2018   Page 4 of 6
      endangers a person.” Ind. Code § 9-30-5-2 (2016). Harris challenges only the

      sufficiency of the evidence tending to show intoxication. A person is

      intoxicated if he is “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.” Ind. Code § 9-13-2-86. The State can prove impairment

      “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; and (6) slurred

      speech.’” Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009) (quoting

      Fought v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008)), affirmed by 929

      N.E.2d 196 (Ind. 2010).


[7]   The State submitted ample evidence that Harris was impaired. Harris admitted

      at the scene and at trial that he had been drinking; his breath and body smelled

      like alcohol; and there were open, partially consumed containers of beer and

      whiskey in his van. Harris’s eyes were bloodshot and glassy, and his clothing

      was disheveled. Moreover, Harris showed impaired attention and reflexes.

      Even before Trooper Ferguson activated his lights and siren, Harris veered

      toward an interstate exit before swerving back over across two sets of lane

      dividers and straddling the dashed lane dividers. After Trooper Ferguson

      activated his lights and siren, Harris took an inordinate amount of time to stop.

      After Harris stopped, he swung open his van’s door and partially stepped out of

      the van, which Trooper Ferguson testified was “highly unusual.” Tr. Vol. II p.

      46. Harris could not perform any of the FSTs or provide a sufficient sample to



      Court of Appeals of Indiana | Memorandum Decision 10A04-1709-CR-2216 | April 11, 2018   Page 5 of 6
      administer a breath test. Trooper Ferguson testified that, based on his training

      and experience, he believed that Harris was intoxicated. In light of this

      evidence, we conclude that the trial court could have reasonably concluded

      beyond a reasonable doubt that Harris was intoxicated. Harris’s argument

      amounts to nothing more than a request to reweigh the evidence, which this

      court will not do. See Farris, 753 N.E.2d at 647.


[8]   We affirm the judgment of the trial court.


      Baker, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 10A04-1709-CR-2216 | April 11, 2018   Page 6 of 6
