MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Sep 13 2017, 8:44 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark F. James                                            Curtis T. Hill, Jr.
Anderson, Agostino & Keller P.C.                         Attorney General of Indiana
South Bend, Indiana
                                                         Katherine Modesitt Cooper
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Pierre Patrick Williams,                                 September 13, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1701-CR-23
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1504-F6-213



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017          Page 1 of 10
[1]   Pierre Patrick Williams appeals his conviction for operating a vehicle while

      intoxicated as a level 6 felony. Williams raises one issue which we revise and

      restate as whether the evidence is sufficient to sustain his conviction. We

      affirm.


                                      Facts and Procedural History

[2]   Around 1:15 or 1:30 a.m. on April 15, 2015, New Carlisle Police Officer Ron

      Whitt was traveling eastbound on State Road 2 when a vehicle came up behind

      him “pretty fast” with its bright lights on. Transcript at 11. By setting the

      cruise control of his patrol car to sixty miles per hour and activating its same

      direction radar, Officer Whitt captured the vehicle’s speed as eighty miles per

      hour, twenty miles above the speed limit. He activated his patrol car’s

      emergency lights and initiated a stop of the vehicle.


[3]   Officer Whitt approached the driver, Williams, informed him of the reason for

      the stop, and asked for his information. As he spoke to Williams, Officer Whitt

      noticed that “his eyes were red and watery” and smelled the “odor commonly

      associated with an alcoholic beverage” coming from Williams. Id. at 14.

      Returning to his patrol car to run a license check, Officer Whitt turned off his

      front emergency lights and activated the patrol car’s recording device. Officer

      Deak arrived at the scene, spoke with Williams, and “could smell a little bit an

      odor of alcohol.” Id. at 55. Officer Whitt illuminated a dry and level location

      and returned to have Williams step out of his vehicle to perform field sobriety

      testing, only to find him asleep. After Williams exited his vehicle, Officer


      Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017   Page 2 of 10
      Whitt could still smell alcohol coming from him. Williams failed the

      horizontal gaze nystagmus test (“HGN”) test.


[4]   After administering the field sobriety tests, Officer Whitt offered a portable

      breath test to Williams, who took it and asked what he had received. Officer

      Whitt then recited the Indiana implied consent law, and Williams said he

      would not take the chemical test. Officer Whitt then placed Williams in

      handcuffs and transported him to the St. Joseph County jail. At the jail, Officer

      Whitt again read the Indiana implied consent law to Williams, and again he

      refused the test. Officer Whitt had him step into the booking area, where he

      first laid down on the bench and then rolled off onto the floor. While at the jail,

      he made various statements, including “I’m going to throw up” and “Dang, I

      got lit.” State’s Exhibit 2 at 0:58, 4:32.


[5]   On April 6, 2015, the State charged Williams with two counts of operating a

      vehicle while intoxicated, one as a class C misdemeanor and the other as a level

      6 felony. On September 1, 2016, the court held a bench trial at which the State

      presented the testimony of Officer Whitt and Officer Deak. Officer Whitt

      testified that first he had Williams perform the HGN, and that Williams

      exhibited all six clues or indicators that officers look for when having people

      perform the HGN test: each eye exhibited lack of smooth pursuit, nystagmus

      prior to 45 degrees, and distinct and sustained nystagmus.1 Officer Whitt also




      1
          Officer Williams testified that three clues must be shown for a person to have failed the test.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017                Page 3 of 10
      testified that he explained and demonstrated the nine step walk and turn test, or

      a divided attention test, that Williams stepped “side to side and not heel to toe”

      and made an improper turn, and that he failed the test. Transcript at 42.


[6]   When the prosecutor moved to admit a recording of Officer Whitt

      administering the field sobriety tests, Williams’s counsel requested that the

      court “stop viewing at 1:24 a.m., which is where the portable breath test

      begins.” Id. at 28-29. The court stated “[o]kay” and granted the prosecutor

      permission to publish “as long as we can stop at that point.” Id. at 29. The

      court admitted without objection video from the jail vestibule as State’s Exhibit

      2 and video from the breath test room as State’s Exhibit 3. The video from the

      jail vestibule reflects Williams’s statement, “Dang, I got lit.” State’s Exhibit 2

      at 4:32.


[7]   After the State rested, Nichelle Jones testified that during the night of the traffic

      stop she was in the vehicle with Williams, they were coming from a casino

      where Williams had one drink, and while there she was not with him the whole

      time. On cross-examination, Jones testified that Williams was “drinking

      coffee.” Transcript at 62. When questioned further, Jones also testified the one

      drink she saw Williams have was a “virgin long island iced tea” which

      contained only “rum,” and that she only saw Williams have one drink. Id. at

      62-63.


[8]   On September 26, 2016, the court found Williams guilty of operating a vehicle

      while intoxicated as a class C misdemeanor and entered an order containing


      Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017   Page 4 of 10
      findings of fact and conclusions of law.2 On September 27, 2016, Williams

      stipulated to a previous conviction within five years of operating a motor

      vehicle while intoxicated. On December 13, 2016, the court entered a judgment

      of conviction for operating a vehicle while intoxicated as a level 6 felony,

      sentenced him to eighteen months, suspended the sentence to probation, and

      suspended his driver’s license for a period of one year.


                                                     Discussion

[9]   The issue is whether the evidence is sufficient to sustain Williams’s conviction

      for operating a vehicle while intoxicated as a level 6 felony. Williams argues

      that the State failed to prove that he was intoxicated. He contends that the

      State did not present evidence that he consumed a significant amount of alcohol

      or that he had impaired attention and reflexes, unsteady balance, or slurred

      speech, that the court gave improper weight to the field sobriety testing, and

      that the HGN test was “not conducted in accordance with the NHTSA

      guidelines.” Appellant’s Brief at 8. He also asserts that the court erroneously

      considered video evidence that had been stipulated beforehand by the parties to

      be omitted, namely video evidence “after Williams was administered the

      portable breath test . . . anything after the time stamp of 1:24.” Id. at 6.




      2
       The court found State’s Exhibit 1 to be inconclusive on the issue of whether Williams failed the walk and
      turn test, and also that Williams “failed, at minimum, the Horizontal Gaze Nystagmus test . . . .”
      Appellant’s Appendix Volume II at 23.

      Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017           Page 5 of 10
       Specifically, he asserts that the court improperly referred to a comment he made

       after being shown the result of the portable breath test.


[10]   The State contends that sufficient evidence supports Williams’s conviction and

       points to Officer Whitt’s testimony that he observed Williams’s red, watery

       eyes, he detected the odor of an alcoholic beverage on Williams, and that

       Williams failed two field sobriety tests. In response to Williams’s claim of

       improperly-considered evidence, the State argues Williams fails to provide a

       description of the challenged evidence and notes that the court’s sentencing

       order refers to Williams’s statement “Dang, I got lit” made while in the jail

       vestibule as shown in State’s Exhibit 2.


[11]   In a criminal case the trial court is not required to make either findings of fact

       or conclusions of law. Dozier v. State, 709 N.E.2d 27, 30 (Ind. Ct. App. 1999)

       (citing Nation v. State, 445 N.E.2d 565, 570 (Ind. 1983)). Thus, the focus of our

       inquiry is not upon the remarks the trial court makes in a bench trial after

       having reached the conclusion that a defendant is guilty. Id. Rather, we review

       whether the evidence presented to the trial court as factfinder was sufficient to

       sustain the conviction. Id.


[12]   When reviewing the sufficiency of the evidence, we will affirm “if there is

       substantial evidence of probative value supporting each element of the crime

       from which a reasonable trier of fact could have found the defendant guilty

       beyond a reasonable doubt.” Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005)

       (quoting Davis v. State, 813 N.E.2d 1176, 1178 (Ind. 2004)). We do not reweigh


       Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017   Page 6 of 10
       the evidence or assess the credibility of the witnesses. Id. We consider

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


[13]   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.” Ind. Code § 9-30-5-3(a)(1)

       provides that


               a person who violates section 1 or 2 of this chapter commits a
               Level 6 felony if . . . the person has a previous conviction of
               operating while intoxicated that occurred within the five (5) years
               immediately preceding the occurrence of the violation of section
               1 or 2 of this chapter[.]


       “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.

       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,
       Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017   Page 7 of 10
       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).


[14]   To the extent that Williams argues that the trial court in its findings improperly

       referred to his statement, “Dang, I got lit,” Appellant’s Appendix Volume II at

       22, we note the record reveals that Williams made that statement in the booking

       area of the jail as shown in the video admitted as State’s Exhibit 2 without

       objection.3


[15]   Turning to the evidence most favorable to Williams’s conviction, the record

       reveals that Officer Whitt testified that he determined that Williams’s vehicle

       was traveling eighty miles per hour in a sixty mile per hour speed zone. Officer

       Whitt observed that Williams had red, watery eyes and detected the odor of an

       alcoholic beverage on Williams when he first spoke to Williams and again after

       Williams exited his vehicle. When Officer Whitt returned to have Williams

       step out of his vehicle to perform field sobriety testing, he found him asleep.




       3
           The court’s findings of fact included the following finding:
                  5. The Court finds that State’s Exhibit 2, the DVD of the Defendant getting booked at the
                  St. Joseph County Jail, to be most dispositive. In that DVD, the Defendant is laying down
                  on a bench while answering the jail staff questions. He then says he feels like he’s going to
                  throw up and rolls off the bench and lays on the ground instead. Later, after the jail staff
                  has the Defendant blow into the portable breath test and shows him the results, the
                  Defendant says, “Dang, I got lit!”
       Appellant’s Appendix Volume II at 22.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017                Page 8 of 10
       Williams failed, at minimum, the HGN test.4 While at the jail, he initially laid

       on the bench, and then later stated, “I’m going to throw up,” rolled off the

       bench, and lay down on the floor. See State’s Exhibit 2 at 0:58-1:48.


[16]   Based upon the record, we conclude that evidence of probative value exists

       from which the court as the trier of fact could find that Williams was

       intoxicated and could have found him guilty beyond a reasonable doubt of

       operating a vehicle while intoxicated as a level 6 felony. See 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

[17]   For the foregoing reasons, we affirm Williams’s conviction for operating a

       vehicle while intoxicated as a level 6 felony.




       4
         To the extent that Williams argues that the HGN test was not conducted in accordance with the NHTSA
       guidelines because “flashing lights . . . would affect the jerking of Williams [sic] eyeballs,” Appellant’s Brief
       at 7-8, we observe that Officer Whitt testified that he turned off the flashing lights on his vehicle. He also
       testified that he believed nobody “had front . . . emergency lights on,” that Officer Deak had his “red and
       blues off,” and that, “if there was [sic] any flashing lights, the flashing lights would be below knee level
       because it was [the] front strobe” from Officer Deak’s vehicle parked behind Officer Whitt’s vehicle.
       Transcript at 34-35.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017                Page 9 of 10
[18]   Affirmed.


       Najam, J., and Kirsch, J, concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1701-CR-23 |September 13, 2017   Page 10 of 10
