      MEMORANDUM DECISION
                                                                                 FILED
      Pursuant to Ind. Appellate Rule 65(D),                                Mar 17 2016, 9:32 am

      this Memorandum Decision shall not be                                      CLERK
                                                                             Indiana Supreme Court
      regarded as precedent or cited before any                                 Court of Appeals
                                                                                  and Tax Court
      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
      J. Clayton Miller                                        Gregory F. Zoeller
      Jordan Law, LLC                                          Attorney General of Indiana
      Richmond, Indiana                                        J.T. Whitehead
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                IN THE
          COURT OF APPEALS OF INDIANA

      Michael York,                                            March 17, 2016
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               89A01-1507-CR-911
              v.                                               Appeal from the Wayne Superior
                                                               Court
      State of Indiana,                                        The Honorable Darrin M.
      Appellee-Plaintiff                                       Dolehanty, Judge
                                                               Trial Court Cause No.
                                                               89D03-1501-CM-62



      Mathias, Judge.


[1]   Michael York was convicted in Wayne Superior Court of Class C misdemeanor

      operating a motor vehicle with an alcohol concentration equivalent (“A.C.E.”)


      Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016           Page 1 of 12
      of 0.08 or greater. York appeals and presents three issues for our review, which

      we reorder and restate as:

              I.      Whether the trial court erred in denying York’s motion to dismiss
                      all charges based on alleged discovery violations by the State;

              II.     Whether the State presented evidence sufficient to support York’s
                      conviction; and

              III.    Whether the trial court’s judgments are inconsistent.

[2]   We affirm.


                                    Facts and Procedural History

[3]   At approximately 1:25 a.m. on January 11, 2015, Indiana State Police Trooper

      Thomas Ratliff (“Trooper Ratliff”) was on patrol driving westbound on Bridge

      Avenue in Richmond, Indiana. As he drove, he was passed by a white Ford

      pickup truck with a loud muffler. The loud noise caused Trooper Ratliff to look

      in his rear-view mirrors to observe the truck. When he did so, he noticed that

      the license plate light was not operative. Trooper Ratliff turned his car around

      and began to follow the white truck. He then noticed that the license plate on

      the truck was expired. As the truck approached the intersection with 8th Street,

      the driver made a turn without using his turn signal. Trooper Ratliff then

      activated the emergency lights in his patrol car and stopped the truck.


[4]   As he walked up to the driver’s side of the truck, Trooper Ratliff observed four

      adults in the car, and York was the driver of the car. Trooper Ratliff smelled the

      odor of alcohol coming from the vehicle and asked York if he had been

      drinking. York replied that everyone in the car had been drinking that night and

      Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 2 of 12
      admitted that he had had a “few” drinks. Tr. pp. 34, 85, 123. In fact, York later

      testified that he had drunk five mixed drinks at dinner and then a double shot of

      rum when he went to pick up his girlfriend’s brother and sister-in-law. As York

      spoke, Trooper Ratliff could smell the odor of alcohol on York’s breath.

[5]   Trooper Ratliff decided to perform the horizontal gaze nystagmus test on York,

      which York failed. He then administered a portable breath test on York, which

      indicated that York’s A.C.E. was 0.11. Trooper Ratliff placed York under arrest

      for driving while intoxicated and transported him to jail.


[6]   At the jail, Trooper Ratliff administered a certified breath test to York. Before

      doing so, Trooper Ratliff examined York’s mouth to ensure that no foreign

      objects were in it. York then blew into the breath test machine. The results of

      the test indicated that York’s A.C.E. was 0.098.


[7]   The State charged York on January 16, 2015 with Class C misdemeanor

      operating a motor vehicle while intoxicated and Class C misdemeanor

      operating a motor vehicle with an A.C.E. of greater than 0.08. York filed a

      motion to dismiss on June 5, 2015, arguing that the charges should be dismissed

      because the State had not provided him with requested discovery, specifically

      the video recordings of his booking and certified breath test.


[8]   A bench trial was held on June 11, 2015. At the beginning of the trial, the court

      heard evidence and argument regarding the video recordings. The State

      presented evidence that the video recording of the booking had not been made

      due to an equipment failure, and the video recording of the breath test was

      Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 3 of 12
       apparently made, but the video tape had broken and could not be repaired. The

       trial court denied the motion to dismiss, and the case proceeded to trial.

[9]    At the conclusion of the State’s case-in-chief, York moved for a “directed

       verdict”1 on both counts. The trial court granted the motion with regard to the

       count of operating while intoxicated but denied it with regard to the count of

       operating with an A.C.E. of 0.08 or greater. York then presented testimony of

       an expert who claimed that, based on the evidence, his opinion was that York’s

       A.C.E. was actually 0.053. York also testified, and his testimony was mostly in

       agreement with that of Trooper Ratliff except that York claimed to have been

       chewing gum before the breath test. At the conclusion of the trial, the court

       found York guilty of operating a motor vehicle with an A.C.E. of 0.08 or

       greater. York was subsequently sentenced to fourteen days in jail, which he had

       already served.2 York now appeals.

                                              I. Motion to Dismiss

[10]   York argues that the trial court should have dismissed the charges against him

       based upon the State’s inability to produce the video recordings of the booking

       and breath testing that he requested during discovery. In reviewing this claim,

       we note our standard of review:




       1
           See Ind. Trial Rule 50.
       2
         The trial court did not suspend York’s license, as it had already been suspended since the initial hearing on
       January 20, 2015.

       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016               Page 4 of 12
               A trial judge has the responsibility to direct the trial in a manner
               that facilitates the ascertainment of truth, ensures fairness, and
               obtains economy of time and effort commensurate with the rights
               of society and the criminal defendant. Where there has been a
               failure to comply with discovery procedures, the trial judge is
               usually in the best position to determine the dictates of
               fundamental fairness and whether any resulting harm can be
               eliminated or satisfactorily alleviated. . . . The trial court must be
               given wide discretionary latitude in discovery matters since it has
               the duty to promote the discovery of truth and to guide and
               control the proceedings, and will be granted deference in
               assessing what constitutes substantial compliance with discovery
               orders. Absent clear error and resulting prejudice, the trial court’s
               determinations as to violations and sanctions should not be
               overturned.


       State v. Schmitt, 915 N.E.2d 520, 522-23 (Ind. Ct. App. 2009) (quoting Lindsey v.

       State, 877 N.E.2d 190, 195 (Ind. Ct. App. 2007)), trans. denied.


[11]   A continuance is usually the proper remedy if a remedial measure is warranted.

       Id. at 523. However, if the State’s actions were deliberate and the conduct

       prevented a fair trial, a more extreme remedial measure, such as the exclusion

       of evidence, may be employed. Id. Dismissal of charges is also a sanction within

       the arsenal of the trial judge in dealing with the failure of the State to afford the

       defense access to evidentiary materials as ordered. Id. (citing Robinson v. State,

       450 N.E.2d 51, 52 (Ind. 1983)). In determining whether dismissal was proper,

       the court should consider whether the breach was intentional or in bad faith and

       whether substantial prejudice resulted. Id. Furthermore, we consider claims of

       prosecutors failing to supply defendants with discovery seriously, and, if such is



       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 5 of 12
       established, we find such behavior unacceptable and troublesome. Id. (citing

       Gardner v. State, 724 N.E.2d 624, 628 (Ind. Ct. App. 2000)).


[12]   Here, however, nothing in the record indicates that the State intentionally

       destroyed the video recordings or failed to preserve them in bad faith. The State

       presented evidence that the video recorder for the booking room had been

       inoperative the week that York was booked, and the video recording of the

       breath test was apparently made, but the video tape itself broke. At most, this

       establishes negligence on the part of the State, not the intentional, bad faith

       destruction of evidence that would support a dismissal of the charges.

[13]   Moreover, the video tapes were most relevant to the charge that was dismissed

       by the court—operating while intoxicated. As York’s counsel pointed out, the

       video recordings would have preserved York’s behavior and demeanor while at

       the police station—which would be probative of whether he was impaired.

       York, however, also claims that the evidence was probative of the manner in

       which the breath test was performed, especially how long York blew into the

       testing machine, which his expert witness testified was important to the

       accuracy of the results. This appears to be true, but we cannot fault the trial

       court for not taking the extreme measure of dismissing the charges against York

       based upon what appears to be nothing more than technical malfunctions of the

       police video recording systems. In short, the trial court did not abuse its

       discretion by denying York’s motion to dismiss the charges against him.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 6 of 12
                                    II. Sufficiency of the Evidence

[14]   York also contends that the State failed to prove that he operated a vehicle with

       an A.C.E. of 0.08 or greater. In addressing this argument, we repeat our well-

       settled standard of review: we neither reweigh the evidence or judge the

       credibility of the witnesses; instead, we consider only the probative evidence

       and reasonable inferences supporting the verdict, and we will affirm if the

       probative evidence and reasonable inferences drawn from the evidence could

       have allowed a reasonable trier of fact to find the defendant guilty beyond a

       reasonable doubt. Neukam v. State, 934 N.E.2d 198, 202 (Ind. Ct. App. 2010)

       (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).


[15]   To convict York of operating a motor vehicle with an A.C.E. of at least 0.08,

       the State had to present evidence he “operate[d] a vehicle with an alcohol

       concentration equivalent to at least eight-hundredths (0.08) gram of alcohol . . .

       per . . . two hundred ten (210) liters of the person’s breath.” Ind. Code § 9-30-5-

       1. At a trial for such charge, evidence of the driver’s A.C.E. at the time of

       driving, or within three hours thereof, is admissible. See Ind. Code §§ 9-30-6-2,

       9-30-6-15(a); see also Pattison v. State, No. 27A05-1411-CR-517, ___ N.E.3d ___

       2015 WL 7873732, at *2 (Ind. Ct. App. Dec. 4, 2015), trans. pending.


[16]   Furthermore, Indiana Code section 9-30-6-15(b) provides:


               If, in a prosecution for an offense under IC 9-30-5, evidence
               establishes that:




       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 7 of 12
                       (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:


                                (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.


       (Emphasis added).


[17]   York does not deny that the State presented evidence that a chemical test was

       performed that indicated that his A.C.E. was greater that 0.08, and he

       acknowledges that the trial court, acting as the trier of fact, could therefore

       presume that his A.C.E. was at least 0.08 at the time he operated his vehicle.

       York claims, however, that he successfully rebutted this presumption.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 8 of 12
[18]   In support of his argument, York claims that he established that the breath test

       procedure was flawed because he testified that he had chewing gum in his

       mouth, and the presence of a foreign object in the subject’s mouth invalidates

       the results of the certified breath test. See 260 Ind. Admin. Code 2-4-2(a)(B)

       (providing that a person taking a certified breath test must not have put any

       foreign substance into his mouth or respiratory tract within fifteen minutes

       before the time the first breath sample is taken). However, Trooper Ratliff

       clearly testified that he checked York’s mouth for foreign objects and saw

       nothing. York’s testimony clearly conflicts with Trooper Ratliff’s testimony,

       and it was up to the trial court, acting as the trier of fact, to choose which

       testimony to credit. We will not second-guess the trier of fact on appeal.

[19]   York also refers to the testimony of his expert witness, who testified that based

       upon York’s drinking pattern, his A.C.E. at the time he was pulled over would

       actually have been 0.053. The expert witness testified that the longer a person

       blows into the breath testing machine, the greater the alcohol concentration

       reading will be. York notes that, with the video recording of the breath test

       “destroyed,” there is no way to show how long York actually blew into the

       machine. However, Trooper Ratliff testified that the machine is automated and

       instructs the subject to blow until an adequate sample has been collected.

       Although York testified that he blew into the machine for a long time, the trial

       court was not required to credit his self-serving testimony. It is also true that the

       testimony of York’s expert witness was not directly contradicted by any witness

       presented by the State. However, the trial court could still choose to credit the


       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 9 of 12
       results of the certified breath test approved by the State Department of

       Toxicology instead of the testimony of York’s expert witness.

[20]   In short, York’s claims on appeal regarding the sufficiency of the evidence are

       simply a request that we consider the evidence in a light most favorable to him,

       reweigh the evidence, and come to a conclusion other than that reached by the

       trial court. This we will not do. See Neukam, 934 N.E.2d at 202 (citing McHenry,

       820 N.E.2d at 126).


                                      III. Inconsistent Judgments

[21]   Lastly, we address York’s claim that the trial court rendered inconsistent

       “verdicts.” Strictly speaking, of course, trial courts do not render verdicts; juries

       render verdicts. See Verdict, Black’s Law Dictionary (10th ed. 2014) (defining a

       verdict as “[a] jury’s finding or decision on the factual issues of a case.”).

[22]   York acknowledges that alleged inconsistencies in jury verdicts are not

       reviewable on appeal. As explained by our supreme court in Beattie v. State, 924

       N.E.2d 643, 648 (Ind. 2010), inconsistencies in a jury’s verdict could be due to

       several factors: misunderstanding the trial court’s instructions, exercising lenity,

       or compromise among disagreeing jurors. However, these concerns are

       adequately addressed through the lens of appellate review for sufficient

       evidence. Beattie, 924 N.E.2d at 649 (citing United States v. Powell, 469 U.S. 57,

       67-69 (1984)).


[23]   York argues that the same deference should not be afforded to trial judges

       acting as the trier of fact. We need not address whether a trial court’s judgment

       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 10 of 12
       can be reviewed for inconsistency on appeal, because we conclude that nothing

       is inherently inconsistent with the trial court’s judgments in this case.

[24]   York argues that the trial court specifically found no evidence of impairment

       when it granted his motion for judgment on the evidence with regard to the the

       charge of operating a motor vehicle while intoxicated. Even so, this does not

       mean that the trial court could not also find that York operated his truck with

       an A.C.E. of at least 0.08.


[25]   “Intoxicated” is statutorily defined as “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. How alcohol affects a

       person depends upon a variety of factors, including: weight, age, gender, and

       tolerance to alcohol. See 4 Am. Jur. Proof of Facts 3d 229 (1989 & Supp. 2015).

       Accordingly, one person could be “intoxicated” while having an A.C.E. under

       0.08, and another person could feasibly have an A.C.E. of 0.08 and show few

       signs of intoxication. See Bisard v. State, 26 N.E.3d 1060, 1066 (Ind. Ct. App.

       2015) (noting expert testimony that it is possible for a tolerant drinker to be

       intoxicated, but show no signs of intoxication), trans. denied. We therefore

       conclude that the trial court’s judgments were not inconsistent, and York’s

       argument to the contrary fails.


                                                  Conclusion

[26]   The trial court did not abuse its discretion when it denied York’s motion to

       dismiss the charges due to discovery violations because the State presented


       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 11 of 12
       evidence that the failure to preserve the video recordings was the result of

       technical failures, not the deliberate destruction of evidence. The evidence is

       sufficient to support York’s conviction for operating a vehicle with an A.C.E. of

       at least 0.08. Lastly, the trial court did not enter inconsistent judgments.

[27]   Affirmed.


       Kirsch, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 89A01-1507-CR-911 | March 17, 2016   Page 12 of 12
