MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                             FILED
this Memorandum Decision shall not be
                                                                               Jun 06 2019, 6:13 am
regarded as precedent or cited before any
court except for the purpose of establishing                                       CLERK
                                                                               Indiana Supreme Court
the defense of res judicata, collateral                                           Court of Appeals
                                                                                    and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General of Indiana
Lafayette, Indiana
                                                         Samantha M. Sumcad
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tawanda Nyanhongo,                                       June 6, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2539
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Christina
Appellee-Plaintiff                                       Klineman, Judge
                                                         Trial Court Cause No.
                                                         49G17-1804-F6-12536



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019                       Page 1 of 8
[1]   Tawanda G. Nyanhongo appeals his conviction of Level 6 felony operating a

      vehicle while intoxicated with a previous conviction within five years. 1

      Nyanhongo argues the State presented insufficient evidence to sustain his

      conviction. 2 We affirm and sua sponte remand for correction of the Abstract of

      Judgment.



                                 Facts and Procedural History
[2]   On April 13, 2018, Nyanhongo and Yazmin Robinson went to the park to grill

      and eat dinner. During dinner, Nyanhongo drank a couple beers, so Robinson

      drove them to her house. While there, Nyanhongo had trouble walking. After

      ten to fifteen minutes at the house, Nyanhongo wanted to go to the liquor store.

      Robinson offered to drive, but they left Robinson’s house with Nyanhongo

      driving the vehicle. Robinson tried to convince Nyanhongo to stop driving.

      She called 911. She also made multiple attempts to pull the keys from the

      ignition, causing the vehicle to swerve.


[3]   At approximately 11:30 p.m., Officer Harris was on his way to investigate

      Robinson’s 911 call when he observed Nyanhongo’s vehicle make a left turn,

      cross a double yellow line, and partially leave the lane of traffic. Nyanhongo

      corrected the vehicle’s path. Officer Harris then saw Nyanhongo’s vehicle



      1
          Ind. Code §§ 9-30-5-2(a), 9-30-5-3(a)(1).
      2
       Nyanhongo was also convicted of Class B misdemeanor possession of marijuana. Ind. Code § 35-48-4-11.
      He received a suspended sentence of 180 days. Nyanhongo does not appeal that conviction or sentence, and
      accordingly we need not elaborate the facts and procedure related to that crime.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019                  Page 2 of 8
      swerve across the double yellow line a second time, and he initiated a traffic

      stop. Nyanhongo told Officer Harris that Robinson was trying to pull the keys

      out of the ignition. Officer Harris asked Nyanhongo to exit the vehicle and

      noticed a strong smell of alcohol. Nyanhongo’s eyes were glassy and

      bloodshot.


[4]   Officer Alexander Redding also arrived at the scene. He noticed Nyanhongo

      leaning against the vehicle. Officer Redding administered a series of field

      sobriety tests. He conducted the horizontal gaze nystagmus test at the scene,

      and Nyanhongo failed that test. Officer Redding then transferred Nyanhongo

      to the Speedway Police Department because it was dark and raining at the

      scene. There, Officer Redding administered the walk and turn test and the one-

      legged stand test. Nyanhongo failed the walk and turn test but passed the one-

      legged stand test. Officer Redding concluded there was probable cause to

      invoke Indiana’s Implied Consent Law and offered Nyanhongo a chemical

      breath test. Nyanhongo refused the chemical breath test, so Officer Redding

      obtained a warrant authorizing a blood draw. The sample showed

      Nyanhongo’s whole body blood alcohol concentration to be in the range of .059

      to .071% (0.059 to 0.071 g/100mL). (Tr. Vol. II at 32-33.)


[5]   The State charged Nyanhongo with Class A misdemeanor operating a vehicle

      while intoxicated endangering a person, pursuant to Indiana Code section 9-30-

      5-2. The State also charged Nyanhongo with a Level 6 Felony enhancement of

      that operating charge based on Nyanhongo having another conviction of



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019   Page 3 of 8
      operating while intoxicated within the prior five years, pursuant to Indiana

      Code section 9-30-5-3(a)(1). 3


[6]   The court found Nyanhongo guilty of Level 6 felony operating a vehicle while

      intoxicated. The court sentenced Nyanhongo to concurrent terms of 365 days

      for operating a vehicle while intoxicated and 180 days for possession of

      marijuana. After giving Nyanhongo credit for time served, the trial court

      suspended the remainder of his sentence.



                                 Discussion and Decision
                                   Sufficiency of the Evidence
[7]   Our standard of review for assessing sufficiency of the evidence is well-settled.

      We look only at the probative evidence and the reasonable inferences

      supporting the verdict. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We

      neither reweigh the evidence nor assess the credibility of the witnesses. Id. We

      affirm the trial court unless no reasonable fact-finder could find the elements of

      the crime proven beyond a reasonable doubt. Id.


[8]   Operating a vehicle while intoxicated with a previous conviction in the last five

      years is a Level 6 felony. Ind. Code § 9-30-5-2(a) (operating while intoxicated);

      Ind. Code § 9-30-5-3(a)(1) (enhancement for prior conviction). Nyanhongo




      3
       The State also charged Nyanhongo with Class A misdemeanor domestic battery, but it dismissed that
      charge prior to trial.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019                 Page 4 of 8
       does not dispute he had another conviction within the prior five years. Instead

       he argues the State presented insufficient evidence of intoxication.


[9]    Our legislature defined intoxication as “under the influence of: (1) 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. This statute does not

       require separate proof of impairment of action, impairment of thought, and loss

       of control of faculties. Curtis v. State, 937 N.E.2d 868, 873-874 (Ind. Ct. App.

       2010). Rather, “impairment is established by proof of certain behaviors and

       traits evincing impairment, irrespective of whether that evidence established

       particularized impairment of action, thought, and loss of control of faculties.”

       Id. (emphasis in original).


[10]   Nyanhongo asks us to reconsider Curtis and hold the State must demonstrate

       separately proof of (1) impairment of action, (2) impairment of thought, and (3)

       loss of control of faculties. We decline to do so. For one, our reasoning in

       Curtis is sound. As we explained, “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.” Id. at 873.

       Second, we will follow our previous decisions unless provided with a strong

       justification not to do so. Lincoln Utils., Inc. v. Office of Util. Consumer Counselor,

       661 N.E.2d 562, 565 (Ind. Ct. App. 1996), reh’g denied, trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019    Page 5 of 8
[11]   Third, Nyanhongo’s claim would fail even if we were to adopt his suggested

       interpretation of the statute. The State can demonstrate impairment by

       showing: “(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.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans.

       denied. Robinson observed Nyanhongo drink alcohol and have trouble walking

       before he started driving. Nyanhongo’s eyes were glassy and bloodshot. Both

       Officer Harris and Officer Redding smelled alcohol on him. Nyanhongo had to

       lean against the vehicle for support. Nyanhongo failed two field sobriety tests,

       the horizontal gaze nystagmus test and the walk and turn test. This evidence

       demonstrates impairment of Nyanhongo’s actions, impairment of Nyanhongo’s

       thoughts, and loss of control of his faculties. See Ind. Code § 9-13-2-86

       (definition of intoxicated).


[12]   Nyanhongo notes his blood alcohol concentration was below .08. However,

       the offense with which he was charged does not require proof of a specified

       blood alcohol content. Compare Ind. Code § 9-30-5-2 (operating while

       intoxicated) with Ind. Code § 9-30-5-1 (operating with blood alcohol

       concentration of .08 or higher). Sufficient evidence supports Nyanhongo’s

       conviction. See Burnett v. State, 74 N.E.3d 1221, 1226 (Ind. Ct. App. 2017)

       (holding defendant’s slow and slurred speech, glassy eyes, and alcohol smell on

       breath, combined with officer’s observations at the scene, were sufficient

       evidence of intoxication).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019   Page 6 of 8
                                             Abstract of Judgment
[13]   Sua sponte, we observe the Abstract of Judgment does not accurately reflect the

       judgment announced at the conclusion of trial. 4 At trial, after Nyanhongo

       conceded the required prior conviction, the court indicated it would enter the

       conviction as a Level 6 felony. (See Tr. Vol. II at 65.) However, the Abstract

       lists the charged crime for Count I as “9-30-5-2(a)(b)/F6: Operating a Vehicle

       While Intoxicated: Endangering a Person.” (App. Vol. 2 at 11.) It lists the

       statutory citation for the charge as “9-30-5-2(a)(b)” and notes disposition as

       “Finding of Guilty Lesser Included.” 5 (Id.) The Abstract of Judgment contains

       no reference to Indiana Code section 9-30-5-3(a)(1), which permitted the Class

       C misdemeanor crime to be enhanced to a Level 6 felony conviction.

       Therefore, we remand for the trial court to amend the Abstract of Judgment to

       reflect Nyanhongo is guilty of Level 6 felony operating a vehicle while

       intoxicated with a previous conviction, in violation of Indiana Code section 9-

       30-5-3(a)(1). See Borum v. State, 951 N.E.2d 619, 632 (Ind. Ct. App. 2011)

       (remanding for trial court to correct the abstract of judgment).



                                                    Conclusion




       4
           Nor, as written, does it support the one-year sentence imposed for Count I.
       5
         “Finding of Guilty Lesser Included” is a reference to the trial court’s refusal to find Nyanhongo endangered
       a person as required for the Class A misdemeanor conviction under Indiana Code section 9-30-5-2(b).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019                       Page 7 of 8
[14]   We affirm Nyanhongo’s conviction for operating a vehicle while intoxicated

       because the State presented sufficient evidence to support the conviction.

       However, we remand for the trial court to amend the Abstract of Judgment to

       accurately reflect the verdict announced at trial.


       Affirmed and remanded.


       Mathias, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019   Page 8 of 8
