Pursuant to Ind. Appellate Rule 65(D),                                         Oct 18 2013, 5:37 am
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:

JOHN P. WILSON                                   GREGORY F. ZOELLER
Wilson & Wilson                                  Attorney General of Indiana
Greenwood, Indiana
                                                 BRIAN REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

GREGORY CALVAIN,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )       No. 41A01-1303-CR-116
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE JOHNSON CIRCUIT COURT
                           The Honorable K. Mark Loyd, Judge
                        The Honorable Richard L. Tandy, Magistrate
                             Cause No. 41C01-1208-CM-1409


                                      October 18, 2013

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SHEPARD, Senior Judge
       Early one morning, a police officer gave eighteen-year-old Gregory Calvain a ride

home and discovered that he had been drinking. Calvain was eventually found guilty of

illegal consumption of an alcoholic beverage, a class C misdemeanor. Ind. Code § 7.1-5-

7-7 (2012). He appeals, and we affirm.

                       FACTS AND PROCEDURAL HISTORY

       The evidence favorable to the judgment revealed that at 5 a.m. on August 12,

2012, Deputy Scott Rautio was on patrol in Johnson County when he drove past Calvain.

Calvain was wearing nonreflective clothing as he walked along the side of the road in the

dark. Rautio was concerned that Calvain could be hit by a car, so he turned around and

drove back to him.

       Deputy Rautio asked Calvain if he was okay and if he needed a ride. Calvain

explained that he was walking home from a birthday party. He accepted Rautio’s offer of

a ride, saying, “If I’m not going to be a burden or anything like that, yeah, give [me] a

lift.” Tr. p. 11. Calvain said he lived two miles away. Rautio patted down Calvain for

weapons and found none. He also checked Calvain’s identification and learned that

Calvain was eighteen years old. Next, Rautio allowed Calvain to get into the back seat of

his car.

       As Rautio drove Calvain home, he noticed an odor of alcoholic beverage on

Calvain’s person. He asked Calvain about the smell, and Calvain said he had spilled

gasoline on himself. Near the entrance to Calvain’s neighborhood, Calvain asked Rautio

to drop him off there, and said he would walk the rest of the way. At that point, Rautio

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stopped the car and both of them got out. Rautio again asked Calvain if he had been

drinking alcohol, and Calvain admitted that he had. Instead of driving Calvain home,

Rautio took him to jail.

       The case was tried to the bench. After the presentation of evidence and argument,

the court found Calvain guilty and imposed a fine of $10, plus court costs of $166. This

appeal followed.

                             DISCUSSION AND DECISION

       Calvain claims there is insufficient evidence to sustain his conviction.

Specifically, he says his admission that he had been drinking was obtained in violation of

his Miranda rights, and that without his admission, there is no evidence he had consumed

alcohol.

       The Supreme Court held in Miranda that a person who is subjected to police

questioning after being taken into custody must be provided with procedural safeguards

effective to protect the constitutional privilege against self-incrimination. Miranda v.

Arizona, 384 U.S. 436, 444 (1966). “The person must be warned that he has a right to

remain silent, that any statement he does make may be used as evidence against him, and

that he has a right to the presence of an attorney, either retained or appointed.” Id.

       As to whether an individual is in custody for Miranda purposes, “the ultimate

inquiry is simply whether there [was] a ‘formal arrest or restraint on freedom of

movement’ of the degree associated with a formal arrest.” Stansbury v. California, 511

U.S. 318, 322 (1994) (quoting California v. Beheler, 463 U.S. 1121, 1125 (1983)).

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       The encounter between Rautio and Calvain has the hallmarks of a consensual

interaction, and we conclude that Calvain was not in custody when Rautio questioned

him about alcohol consumption. See Clark v. State, 512 N.E.2d 223, 227 (Ind. Ct. App.

1987) (Clark not in custody when officer stopped him as he walked along the road, asked

him questions about a report of a vehicle in a ditch, and, upon inviting him into the police

car to go to the vehicle, discovered that he smelled of alcohol).

       Rautio’s questioning of Calvain did not implicate his Miranda rights, so Calvain’s

confession was admissible. There is sufficient evidence to sustain Calvain’s conviction.

                                      CONCLUSION

       We affirm the judgment of the trial court.

       Affirmed.

MATHIAS, J., and PYLE, J., concur.




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