 Pursuant to Ind. Appellate Rule 65(D),
 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.
                                                             Feb 20 2014, 10:45 am




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN                                      GREGORY F. ZOELLER
Marion County Public Defender Agency               Attorney General of Indiana
Indianapolis, Indiana
                                                   MICHAEL GENE WORDEN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana



                              IN THE
                    COURT OF APPEALS OF INDIANA

JUAN CONCEPCION,                                   )
                                                   )
       Appellant-Defendant,                        )
                                                   )
           vs.                                     )        No. 49A02-1306-CR-557
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )

                 APPEAL FROM THE MARION COUNTY SUPERIOR COURT
                            The Honorable Amy Jones, Judge
                           Cause No. 49F08-1301-CM-006225


                                        February 20, 2014
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       Juan Concepcion (“Concepcion”) was convicted of Class A misdemeanor

operating while intoxicated and Class C misdemeanor operating with a blood alcohol

content (“BAC”) greater than 0.08%. Concepcion appeals and argues that the State failed

to present sufficient evidence to support his convictions.

       We affirm.

                                  Facts and Procedure

       On January 27, 2013, at 3:09 a.m., Indiana State Police Trooper Jarrin Franklin

(“Trooper Franklin”) responded to a 911 report of an accident on Interstate 70 in Marion

County. When Trooper Franklin arrived at the scene of the accident, he observed

Concepcion standing next to his car, speaking with a passer-by who had stopped at the

scene and called 911. Concepcion’s car was on the left shoulder of the highway, angled

diagonally and partially extended into the leftmost lane of the three-lane highway. As

Trooper Franklin approached Concepcion, he saw that Concepcion “had very unsteady

balance and he had very slurred speech and also had bloodshot, glassy eyes.” Tr. p. 9.

Concepcion told Trooper Franklin that, as he was traveling on Interstate 70, a tire on his

car blew out, causing him to collide with the concrete barrier dividing the eastbound and

westbound lanes of the highway. He admitted to Trooper Franklin that he was the driver

of the car involved in the collision and that he had been drinking.

       Trooper Franklin then administered a horizontal gaze nystagmus (“HGN”) test,

which Concepcion failed. For safety reasons, because of the proximity of the accident

scene to the travelled lanes of the highway and Concepcion’s unsteadiness, Trooper

Franklin did not administer the “one leg stand” or the “walk and turn” field sobriety tests.

                                             2
Trooper Franklin dispatched an ambulance to the scene to ensure that Concepcion was

not injured.   After the medics confirmed that Concepcion was uninjured, Trooper

Franklin transported Concepcion to the Beech Grove Police Department. As he placed

Concepcion in his cruiser, Trooper Franklin noted that Concepcion’s clothes smelled of

alcohol.

      At the police station, Trooper Franklin first administered to Concepcion another

HGN test, which Concepcion again failed. Trooper Franklin then initiated the “walk and

turn” field sobriety test, but Concepcion refused to complete the test, telling Trooper

Franklin that “he was too intoxicated to do that and he didn’t want to make himself look

bad.” Tr. p. 22. Concepcion, however, agreed to take a certified breath test. The breath

test was performed at 4:21 a.m., an hour and twelve minutes after Trooper Franklin

arrived at the scene of Concepcion’s accident. The results of the test indicated that

Concepcion’s blood alcohol content was .13%.

      On January 27, 2013, the State charged Concepcion with Count I, Class A

misdemeanor operating a vehicle while intoxicated in a manner that endangers a person

and Count II, Class C misdemeanor operating a vehicle with a blood alcohol level

between .08% and .15%. A bench trial was held on May 31, 2013. The trial court found

Concepcion guilty of both counts and sentenced him to concurrent sentences of 365 days

on Count I, with two days executed and 363 days suspended to probation, and sixty days

on Count II, with two days executed and fifty-eight days of Concepcion’s sentence

suspended to probation.

      Concepcion now appeals.

                                           3
                                Discussion and Decision

       Concepcion argues that the evidence presented by the State is insufficient to

support his convictions. Upon a challenge to the sufficiency of evidence to support a

conviction, we neither reweigh the evidence nor judge the credibility of the witnesses;

instead, we respect the exclusive province of the trier of fact to weigh any conflicting

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

Id.

                            I. Operating While Intoxicated

       Concepcion first argues that the evidence was insufficient to prove that he

operated his vehicle while he was intoxicated. Class A misdemeanor operating a vehicle

while intoxicated occurs when a person operates a motor vehicle while intoxicated in a

manner that endangers a person. Ind. Code § 9-30-5-2. A person is intoxicated when

under the influence of alcohol “such that there is an impaired condition of thought and

action and the loss of normal control of a person’s faculties.” Id.; Ind. Code § 9-13-2-

86(1). The State must establish impairment regardless of the defendant’s blood alcohol

concentration. Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008). Impairment

may 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



                                            4
alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7)

slurred speech.” Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013).

         Concepcion claims that the State failed to prove “the temporal element of the

offense” because “the record is void of evidence that Concepcion was observed in an

intoxicated condition immediately after the accident.” Appellant’s Br. at 6. To support

his argument, Concepcion cites Trooper Franklin’s admission at trial that it was possible

that Concepcion’s accident had occurred hours before Trooper Franklin arrived at the

scene.

         The evidence most favorable to the judgment indicates that, upon arriving at the

scene of the accident, Trooper Franklin saw Concepcion standing next to his car and

talking with the same witness who had called 911 to report the collision. Trooper

Franklin observed that Concepcion had unsteady balance, bloodshot, glassy eyes, and

slurred speech, and that he smelled of alcohol. Concepcion admitted to Trooper Franklin

that he had been drinking and that he was the driver of the car involved in the collision.

Trooper Franklin testified that, while it was possible that Concepcion’s accident had

occurred hours before Trooper Franklin arrived at the scene, “[d]ue to the. . . busyness of

the interstate, I don’t think it would’ve passed for hours” before a witness called 911 to

report the accident. Tr. p. 27.

         Therefore, taken as a whole, the evidence establishes that Concepcion had watery

or bloodshot eyes and unsteady balance, that he smelled of alcohol, that he failed two

field sobriety tests and refused to perform a third, and that his BAC was .13% at 4:21

a.m. The trial court was entitled to “draw reasonable inferences from facts” established

                                             5
by this evidence. Smith v. State, 547 N.E.2d 845, 846 (Ind. 1989) (quoting McCann v.

State, 466 N.E.2d 421, 423 (Ind. 1984)).

       Although Concepcion asserts that the State failed to prove the temporal element of

the crime, in light of the evidence admitted during the trial of this case, it was not

unreasonable for the trial court to conclude that Concepcion operated his vehicle while he

was intoxicated. See id. (concluding that evidence that a witness saw the defendant

driving erratically and hit her mailbox and that the defendant’s blood alcohol content was

high three hours later was sufficient evidence to allow the jury to deduce that the

defendant was intoxicated when he struck the mailbox.); see also Stephens, 992 N.E.2d at

938 (holding that evidence that defendant had unsteady balance, watery, bloodshot eyes,

the odor of alcohol on his breath, failed three field sobriety tests, along with a chemical

breath test result of .10% was sufficient to support conviction for operating while

intoxicated.).

       The evidence most favorable to the judgment is sufficient to support the trial

court’s finding that Concepcion operated his vehicle while he was intoxicated.

Concepcion’s argument to the contrary amounts to an invitation to reweigh evidence and

judge witness credibility, which we may not do.

                                   II. Endangerment

       Concepcion next argues that the State failed to prove the element of endangerment

necessary to elevate the conviction from Class C to Class A misdemeanor operating

while intoxicated. Evidence of intoxication, alone, is insufficient to prove endangerment.

Dorsett v. State, 921 N.E.2d 529, 532 (Ind. Ct. App. 2010). The State must establish

                                            6
endangerment by proving that “the defendant was operating the vehicle in a condition or

manner that could have endangered any person, including the public, the police, or the

defendant.” Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011), trans. denied.

       Concepcion argues that, because his car’s tire blew out and forced him onto the

shoulder of the highway, “there is no evidence suggesting his manner of driving caused

the accident.” Appellant’s Br. at 8. He claims that his accident was “a result of factors

beyond [his] control,” rather than a result of his intoxication. Id.

       Evidence of      Concepcion’s intoxication alone is insufficient to prove

endangerment. See Dorsett, 921 N.E.2d at 532. However, in light of the evidence

admitted during the trial of this case, it was not unreasonable for the trial court to find

that Concepcion’s intoxication caused danger to himself or to others.             Even if

Concepcion’s damaged tire caused his collision with the highway barrier, he was driving

while intoxicated on a busy interstate highway and, as the trial court noted, “someone

who’s not intoxicated might be able to more appropriately respond to a tire being blown

and . . . thankfully [he] didn’t take out three lanes of cars or kill himself when he

crashed[.]”   Tr. p. 33.    The facts of this case support a reasonable inference that

Concepcion’s ability to control his car when his tire blew out was impaired due to his

intoxication, which endangered his life as well as the lives of other motorists. See

Vanderlinden v. State, 918 N.E.2d 642, 646 (Ind. Ct. App. 2009) (holding that evidence

of speeding alone can satisfy endangerment element necessary to elevate OWI offense to

a Class A misdemeanor.). Concepcion’s argument is merely an invitation to reweigh the

evidence, which we will not do. Therefore, we conclude that the evidence presented by

                                              7
the State was sufficient to support Concepcion’s conviction for Class A misdemeanor

operating while intoxicated.

                    III. Blood Alcohol Content Greater Than .08%

      Finally, Concepcion contends that insufficient evidence was presented to support

his conviction for operating a vehicle while intoxicated with a blood alcohol content

between .08% and .15%. To convict Concepcion of this offense, the State was required

to prove that Concepcion operated a vehicle with a BAC level of at least .08% but less

than .15%. Ind. Code § 9-30-5-1(a). If the evidence establishes that a chemical test was

performed within three hours after the officer obtained probable cause to believe that an

offense had occurred and the defendant had a BAC of at least .08, the trier of fact shall

presume that the defendant had a BAC of at least .08 at the time he operated the vehicle.

Ind. Code § 9-30-6-2(c); Ind. Code § 9-30-6-15(b). This presumption may be rebutted.

Ind. Code § 9-30-6-15(b).

      Concepcion argues that, because the State failed to establish the precise time of the

accident, it could not “establish [that] the certified breath test was administered within

three hours of the alleged violation.” Appellant’s Br. at 10. Thus, Concepcion claims,

the State was “not permitted to rely on the statutory presumption.” Id.

      Here, the record reveals that Trooper Franklin responded to the scene of

Concepcion’s accident after a witness called 911. When Trooper Franklin arrived at the

scene, the witness who had called 911 was still at the scene. Trooper Franklin testified

that the highway was so busy at the time that he did not believe hours would have passed

before a witness called 911 to report the accident. Concepcion admitted to Trooper

                                            8
Franklin that he had been drinking and driving. Trooper Franklin personally observed

that Concepcion had bloodshot eyes, slurred speech, and unsteady balance and that he

smelled of alcohol.     Concepcion failed two HGN tests and a certified breath test

administered about an hour and twelve minutes after Trooper Franklin arrived at the

accident scene revealed a blood alcohol content of .13%. Given these facts, it was

reasonable for the trial court to infer that the chemical breath test was administered within

three hours of Concepcion’s operation of his vehicle. Indeed, if anything, any alleged

passage of time between the accident and the certified breath test worked to reduce the

blood alcohol content reported. Concepcion’s argument here is a request to reweigh the

evidence, which we will not do.        Therefore, we conclude that the State presented

evidence sufficient to sustain Concepcion’s conviction.

                                        Conclusion

        For all of these reasons, we conclude that the State presented sufficient evidence to

support Concepcion’s convictions for Class A misdemeanor operating while intoxicated

and Class C misdemeanor operating with an alcohol concentration equivalent greater than

.08%.

        Affirmed.

BRADFORD, J., and PYLE, J., concur.




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