                                                                 FILED
Pursuant to Ind.Appellate Rule 65(D),
0 Memorandum Decision shall not be
this
regarded as precedent or cited before
                                                              Mar 16 2012, 9:18 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MICHAEL FRISCHKORN                                GREGORY F. ZOELLER
Frischkorn Law LLC                                Attorney General of Indiana
Fortville, Indiana
                                                  RICHARD C. WEBSTER
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

JEFFREY S. PRYOR,                                 )
                                                  )
       Appellant-Defendant,                       )
                                                  )
              vs.                                 )      No. 29A02-1108-CR-740
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                    APPEAL FROM THE HAMILTON SUPERIOR COURT
                         The Honorable J. Richard Campbell, Judge
                             Cause No. 29D04-1009-CM-4522



                                        March 16, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

         Jeffrey S. Pryor appeals his conviction for operating while intoxicated, as a Class

C misdemeanor, following a bench trial.           The State charged Pryor with a Class A

misdemeanor, but the trial court found that the evidence was insufficient to prove

endangerment as required to support a conviction for Class A misdemeanor operation of

a vehicle while intoxicated. See Dorsett v. State, 921 N.E.2d 529, 532 (Ind. Ct. App.

2010).     Pryor presents a single issue for review, namely, whether the evidence is

sufficient to support his Class C misdemeanor conviction.

         We affirm.

                        FACTS AND PROCEDURAL HISTORY

         At seven o‟clock in the evening on January 16, 2010, Officer Evan McClain of the

Noblesville Police Department was dispatched to the area of 10th Street and Pleasant

Street to investigate a report of a possible intoxicated driver. Earlier, Valerie McDaniel

had reported seeing a black Kia automobile being driven erratically and well below the

speed limit on Pleasant Street heading toward 10th Street. Later, Officer McClain found

a black Kia at the Speedway gas station at the intersection of 10th Street and Christian

Street. When Officer McClain approached the Kia, the car was parked at the entrance of

the gas station building, very close to a red barricade post. The passenger side mirror was

bent in and the barricade post had black marks the same height as the mirror and

consistent with the mirror having struck the post.

         Pryor, the only occupant, was in the driver‟s seat of the vehicle, and the engine

was running.      When Officer McClain asked for identification, Pryor was unable to


                                              2
verbally identify himself, and he took two and one-half minutes to retrieve his

identification from his wallet. Officer McClain observed that Pryor appeared confused,

had bloodshot and droopy eyes, had shaking hands, and suffered from slow and very

slurred speech. The officer asked Pryor where he was coming from and where he was

going, and in both cases Pryor answered “home.” Transcript at 19. Pryor denied that he

had consumed any alcoholic beverages but stated that he had recently taken Neurontin for

pain.

        Officer McClain asked Pryor to turn the vehicle off and step outside. Pryor

complied, although he “had to pull himself out of the vehicle by grabbing on to the door,

the frame area.” Id. at 20-21. Once out of the car, Pryor was unsteady on his feet.

Officer McClain attempted to administer field sobriety tests, beginning with the

Horizontal Gaze Nystagmus (“HGN”) test. The officer allowed Pryor several attempts to

complete the test, but Pryor “was not following [the officer‟s] directions.” Id. at 21.

Because Pryor could not follow instructions, he was unable to complete the HGN test and

Officer McClain concluded the test as a failure.

        Officer McClain next attempted to administer the walk and turn test. But Pryor

was “unable to get into the starting stance” and would start walking before the officer

gave directions. Id. at 22. At one point, Pryor walked up to the officer and “stood in

front of [the officer] and just stared at [him].” Id. Officer McClain was again unable to

complete the test because Pryor was not following the instructions.

        Because Pryor had failed the first two field tests, albeit due to non-completion,

Officer McClain believed that administering the one-leg stand test was unnecessary.


                                            3
Officer McClain then administered a portable breath test (“PBT”) on Pryor followed by

reading him the Indiana Implied Consent Warning. Pryor subsequently agreed to submit

to a certified chemical test, and Officer Don Hege then transported Pryor to Riverview

Hospital. Because Officer McClain did not believe Pryor to be intoxicated by alcohol, he

summoned the assistance of a Drug Recognition Expert (“DRE”), and Officer Joshua

Blocher, a certified DRE, met Officer McClain and Pryor at Riverview.

      At the hospital Officer Blocher interviewed Officer McClain about the test results

obtained at the gas station. Officer Blocher then performed a portable breath test on

Pryor. He also checked Pryor‟s pulse, which was high. When Officer Blocher asked

Pryor the time, Pryor estimated the time to be five o‟clock, when it was actually around

eight-thirty. Officer Blocher then measured Pryor‟s pupil size in various types of light.

The pupil size was consistent with someone who had ingested narcotic analgesics. Next,

Officer Blocher performed the HGN test, which Pryor failed because he was “physically

. . . unable to understand what [Officer Blocher] had asked him to do or physically unable

to do it.” Id. at 67-68. The next test was the lack of convergence test, which Pryor also

failed because he was unable to cross his eyes.

      During the tests Officer Blocher observed a tremor in Pryor‟s eyelids, which can

also be indicative of the ingestion of certain drugs. The officer also performed four

divided attention tests, which, again, Pryor either was unable to perform or failed.

Officer Blocher took Pryor‟s pulse a second time and found it to be higher still, and he

took Pryor‟s blood pressure, which was also high.       High pulse and blood pressure

readings can indicate “[t]hat there is something in the [person‟s] system[.]” Id. at 74.


                                            4
And a physical exam of Pryor‟s arm muscles showed that they were tense or rigid.

Officer Blocher found no injection sites on Pryor. But a third check of Pryor‟s pulse

showed that it was still higher than the first reading and out of the normal range, and his

body temperature was lower than normal. Officer Blocher testified that nervousness can

cause a person‟s pulse to be elevated but that the pulse usually comes down over time.

Finally, Officer Blocher performed an oral and nasal exam, which “proved clear.” Id. at

75-76. Based on the results of the DRE examination, Officer Blocher believed that Pryor

was under the influence of a narcotic analgesic and was unable to safely operate a motor

vehicle.

       The State charged Pryor with operating a motor vehicle while intoxicated, as a

Class A misdemeanor. Following a bench trial, the court found Pryor guilty of operating

a motor vehicle while intoxicated, as a Class C misdemeanor, and entered judgment of

conviction accordingly. The court sentenced Pryor to sixty days in jail, with twenty-four

days executed, thirty-six days suspended, and credit for time served, and placed Pryor on

supervised probation for one year. Pryor now appeals his conviction.

                            DISCUSSION AND DECISION

       When the sufficiency of the evidence to support a conviction is challenged, we

neither reweigh the evidence nor judge the credibility of the witnesses, and we 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, 905-06 (Ind. 2005). It is the job of

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


                                            5
each element of an offense, and we consider conflicting evidence most favorably to the

trial court‟s ruling. Id. at 906.

       Pryor contends that the evidence is insufficient to support his conviction for

operating a motor vehicle while intoxicated, as a Class C misdemeanor. Specifically, he

argues that the evidence is insufficient to show either that he was operating a motor

vehicle or that he was intoxicated as contemplated in Indiana Code Section 9-30-5-2. We

address each contention in turn.

                                    Operating a Motor Vehicle

       Indiana Code Section 9-30-5-2 provides, in relevant part, that “a person who

operates a vehicle while intoxicated commits a Class C misdemeanor.” “Operate” is not

defined by statute, but an “operator” is,

       when used in reference to a motor vehicle, a person, other than a chauffeur
       or a public passenger chauffeur, who:

       (1) Drives or is in actual physical control of a motor vehicle upon a
       highway; or

       (2) Is exercising control over or steering a motor vehicle being towed by a
       motor vehicle.

Ind. Code § 9-13-2-118(a). “Thus, to operate a vehicle is to drive it or be in actual

physical control of it upon a highway.” Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct.

App. 2010), (citing Hampton v. State, 681 N.E.2d 250, 251 (Ind. Ct. App. 1997)), trans.

denied. A public highway is a “street, an alley, a road, a highway, or a thoroughfare . . .

that is used . . . or open to use by the public.” Ind. Code § 9-25-2-4.

       A court may consider several factors in determining whether a defendant has

“operated” a vehicle: “(1) the location of the vehicle when it is discovered; (2) whether
                                               6
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, 920 N.E.2d at 812 (citing

Hampton, 681 N.E.2d at 251). “In addition to these four factors, „[a]ny evidence that

leads to a reasonable inference should be considered.‟ ” Id. (citation omitted) (alteration

in original).     A conviction for operating while intoxicated may be supported by

circumstantial evidence. Dorsett, 921 N.E.2d at 531-32.

        Pryor contends that the evidence is insufficient to show that he operated the

vehicle, as contemplated by Section 9-30-5-2. His vehicle was parked when Officer

McClain found it, and there was no evidence at trial tying a witness‟ report to dispatch to

Pryor‟s vehicle except that the vehicle reported matched the make, model, and color of

Pryor‟s vehicle.1 But the evidence, including a video of Officer McClain‟s gas station

interview of Pryor, shows that Pryor was at a public gas station and that he told the

officer that he had come from “home.” In order to get his vehicle from “home” to the gas

station, Pryor had to have used public streets.2 Although the car was not moving when

Officer McClain discovered Pryor at the gas station, the vehicle‟s engine was running.

And Officer McClain‟s testimony that Pryor‟s car was “parked” at the gas station

indicates that the transmission was not in “drive.” Again, we may not reweigh the

evidence.     Wright, 828 N.E.2d 905-06.             But considering these factors together, we


        1
          Valerie McDaniel testified that she had called 911 to report a black Kia being driven erratically
and that she had given dispatch the vehicle‟s license plate number. But, as the trial court found, there is
no evidence in the record indicating what license plate number she gave to dispatch during that call.
        2
            The State presented no evidence of Pryor‟s address at trial. Nevertheless, the gas station is
situated at the intersection of 10th Street and Christian Avenue, both public streets.
                                                    7
conclude that circumstantial evidence supports the trial court‟s conclusion that Pryor had

operated the vehicle in order for it to have ended up parked at the gas station. See

Dorsett, 921 N.E.2d at 531-32.

                                       Intoxication

       Pryor also contends that the evidence is insufficient to show that he was

intoxicated as contemplated in Indiana Code Section 9-30-5-2. As used in that statute,

“intoxicated” is defined by Indiana Code Section 9-13-2-86 to mean

       under the influence of:

       (1) alcohol;
       (2) a controlled substance (as defined in IC 35-48-1);
       (3) a drug other than alcohol or a controlled substance;
       (4) a substance described in [Indiana Code Section] 35-46-6-2 or [Indiana
       Code Section] 35-46-6-3; or
       (5) a combination of substances described in subdivisions (1) through (4);
       so that there is an impaired condition of thought and action and the loss of
       normal control of a person‟s faculties.

“[I]mpairment of any of the three abilities necessary for the safe operation of a

vehicle[, thought, action, or normal control of a person‟s faculties,] renders the operation

of a vehicle dangerous.” Curtis v. State, 937 N.E.2d 868, 873 (Ind. Ct. App. ) (emphasis

in original).

       [A] person‟s unfitness to operate a vehicle, i.e., his impairment, is to be
       determined by considering his capability as a whole, not component by
       component, such that impairment of any of the three abilities necessary for
       the safe operation of a vehicle equals impairment within the meaning of
       [Indiana Code Section] 9-30-5-2. Indeed, one might argue that impairment
       of any of the three necessarily implies impairment of the others.

Id. (citations omitted) (emphasis in original). In other words, “impairment is established

by proof of certain behaviors and traits evincing impairment, irrespective of whether that


                                             8
evidence established particularized impairment of action, thought, and loss of control of

faculties.” Id. at 873-74 (emphasis in original).

       Here, when Officer McClain first encountered Pryor, Pryor had parked his Kia

“inartfully” and unusually close to a barricade post at the gas station. Appellant‟s Brief at

8. The post bore rubbed off paint markings matching the color of the Kia and the height

of the mirror, and the Kia‟s passenger side mirror was bent in, consistent with having

struck the post. Also, Pryor took over two minutes to retrieve his identification from his

wallet and was unable to verbally identify himself. He was unable to complete a majority

of the field sobriety tests administered by Officer McClain and Officer Blocher, and he

failed the tests that he completed. His estimate of the time and of the passage of time

were outside of the normal range, and his physical symptoms were consistent with

someone who had ingested a narcotic analgesic. And Pryor admitted to having ingested

Neurontin, a prescription pain medication. The evidence is sufficient to support Pryor‟s

conviction for operating while intoxicated, as a Class C misdemeanor.

       Still, Pryor contends that “[i]mpairment alone is not sufficient to support [a

conviction for] Operating while Intoxicated” because “the State must show that the

impairment is a result of the defendant being intoxicated.” Appellant‟s Brief at 11. But

Pryor admitted that he had ingested Neurontin, and the evidence shows that that

medication is available as a prescription to treat pain by affecting the central nervous

system. Pryor‟s admission, when combined with the fact that he failed or was unable to

complete the field sobriety tests and his physical symptoms, indicates that he suffered

from a condition of thought and action and possibly the loss of normal control of his


                                             9
faculties. Such satisfied the definition of “impairment” under Indiana Code Section 9-13-

2-86. The evidence is sufficient to prove beyond a reasonable doubt that Pryor operated a

vehicle while intoxicated.

      Affirmed.

ROBB, C.J., and VAIDIK, J., concur.




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