Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                FILED
                                                             Jan 09 2013, 9:11 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
Indianapolis, Indiana                               Attorney General of Indiana

                                                    KATHERINE MODESITT COOPER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JACK LEE,                                           )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 29A02-1205-CR-384
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HAMILTON SUPERIOR COURT
                           The Honorable Gail Z. Bardoch, Judge
                             Cause No. 29D06-1107-CM-11085


                                         January 9, 2013

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                STATEMENT OF THE CASE

          Jack Lee (“Lee”) appeals his conviction and sentence for operating a vehicle while

intoxicated, a class A misdemeanor.1

          We affirm.

                                           ISSUES

          1.      Whether the State presented sufficient evidence to support Lee’s
                  conviction;

          2.      Whether the trial court committed fundamental error when it
                  admitted testimony about Lee’s alcohol consumption; and

          3.      Whether Lee’s sentence was inappropriate.

                                           FACTS

          On May 23, 2010, Jill Long (“Long”) lived with Lee in Anderson, Indiana. That

morning, Long walked into the kitchen and saw Lee drinking coffee and talking on the

telephone. She also saw a jelly jar containing clear liquid sitting on the kitchen table near

Lee. Long recognized the jar as the one from which Lee drank vodka.

          After breakfast, Lee and Long decided to go for a ride on Lee’s motorcycle, and

they packed the motorcycle’s saddlebags with cold beer from the refrigerator. As Lee

and Long went outside, Lee vomited a clear liquid. Long approached Lee and asked him

if he was “all right.” (Tr. 40). While Long was standing close to Lee, she detected an

odor of alcoholic beverage and noticed that Lee had glassy eyes and was unsteady on his

feet. Long was uncertain how much Lee had had to drink and felt unsure about riding
1
    Ind. Code § 9-30-5-2.

                                               2
with him. Lee accused Long of laughing at him, and, after Long reassured Lee that she

was just worried about him, she sat on the back of Lee’s motorcycle.

      Lee drove the motorcycle to a boat ramp in Perkinsville, where he and Long each

consumed a beer with friend and fellow motorcyclist, Tim Weeks (“Weeks”). As they

were getting back on their motorcycles to leave the boat ramp, Department of Natural

Resources Officer Dave Dungan (“Officer Dungan”) briefly talked with them. Long then

got on the back of Lee’s motorcycle and rode as his passenger. Lee quickly accelerated

his motorcycle, pulled in front of Weeks’ motorcycle, and headed down Strawtown Pike

in Hamilton County, driving at what Long believed to be an approximate speed of sixty

miles per hour.

      Officer Dungan observed Lee driving on Strawtown Pike at speeds above what he

believed to be the posted limit of thirty-five or forty-five miles per hour. The road was

hilly and had several S-shaped curves. As Lee rounded one of the curves, Long felt the

motorcycle start to wobble, and then Lee and Long were thrown from the motorcycle

onto the ground.

      Shortly thereafter, Weeks arrived at the scene, moved Lee’s motorcycle from the

middle of the roadway, and called 911. Officer Dungan and paramedic James Lunsford

(“Lunsford”) arrived soon thereafter.    When Officer Dungan knelt beside Lee, he

detected the odor of a consumed alcoholic beverage.

      Lunsford determined that Lee was unconscious and in critical condition with

possible brain injuries. As Lunsford knelt down next to Lee to assess his breathing, he

                                           3
detected the odor of an alcoholic beverage on Lee’s breath. Long was worried that Lee

remained unconscious and told Lunsford that Lee had been drinking. Lunsford removed

some of Lee’s clothes to treat him, and a flask fell out of Lee’s jacket.

       By this time, Sergeant Fessel of the Hamilton County Sheriff’s Department had

arrived on the scene. He opened the flask, found that it was not full, and determined that

the contents smelled like an alcoholic beverage.

       Lee sustained a head injury that required extensive treatment, and he was taken to

the hospital in a medical helicopter. As a result of the accident, Long sustained a right

knee injury that later required surgery to replace and repair several ligaments. After the

surgery, Long received several weeks of physical therapy and was unable walk without

assistance for two months.

       The State charged Lee with operating a vehicle while intoxicated. Following a

bench trial, the trial court found Lee guilty of the charge. At sentencing, the trial court

noted that Lee had three other convictions for operating a vehicle while intoxicated and

that Lee’s passenger, Long, suffered serious injuries when she was thrown from Lee’s

motorcycle. The trial court imposed a one-year executed sentence and ordered a two-

year license suspension. Lee now appeals his conviction and sentence.

                                        DECISION

1.     Sufficiency of the Evidence

       Indiana Code § 9-30-5-2 provides that a person commits a class A misdemeanor

when the person operates a vehicle while intoxicated “in a manner that endangers a

                                              4
person.” Lee contends that the State failed to present sufficient evidence to establish

either that he was intoxicated or that he endangered a person.

       Our standard of review for sufficiency claims is well settled.         In reviewing

sufficiency of the evidence claims, this court does not reweigh the evidence or assess the

credibility of witnesses. Wright v. State, 828 N.E.2d 904, 906 (Ind. 2005). Not only

must the fact-finder determine whom to believe but also what portions of conflicting

testimony to believe. Atwood v. State, 905 N.E.2d 479, 484 (Ind. Ct. App. 2009), trans.

denied. We consider only the evidence most favorable to the judgment, together with all

reasonable inferences drawn therefrom. Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct.

App. 2008).        The conviction will be affirmed if there is substantial evidence of

probative value to support the conclusion of the trier of fact. Id. Reversal is appropriate

“only when reasonable persons would not be able to form inferences as to each material

element of the offense.” Alvies v. State, 905 N.E.2d 57, 61 (Ind. Ct. App. 2009).

       a. Intoxication

       Lee contends that the State did not present sufficient evidence of intoxication. A

person is intoxicated if he or she is 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.” I.C. § 9-13-2-86(1). Evidence of any of the following may establish that a

person is impaired: (1) consumption of significant amounts of alcohol; (2) impaired

attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath;



                                             5
(5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech. Fields,

888 N.E.2d at 307.

      Here, Long testified that she did not see Lee drink from the jelly jar on the

morning of the accident. However, she knew from experience that it contained vodka

and that just before getting on the motorcycle Lee vomited a clear liquid. She testified

that Lee had glassy eyes, had unsteady balance, and smelled of an alcoholic beverage.

Although she did not know how much Lee had had to drink, she knew that he had been

drinking and felt uncertain about riding with him. In addition, Lee drank an additional

beer while stopped at a boat ramp before speeding down Strawtown Pike.

      The evidence also shows that following the accident, Officer Dungan and

Lunsford both detected the odor of an alcoholic beverage on Lee. Lunsford found a

partially empty flask containing vodka inside Lee’s jacket, from which the trial court

could infer Lee had been drinking.

      The evidence further shows that Lee began driving his motorcycle at a high rate of

speed on a hilly and winding road. Long testified that she believed that the motorcycle

was going approximately sixty miles an hour in what Officer Dungan believed to be an

area where the speed limit was thirty-five to forty-five miles per hour. In the end, Lee

crashed.

      From this evidence, the trial court could have inferred that Lee was intoxicated

and impaired in his ability to operate a motorcycle safely. Lee’s argument otherwise is

merely an invitation to reweigh the evidence, which we reject.

                                            6
              b. Endangerment

       Lee also contends that he did not endanger a person while operating his

motorcycle while intoxicated.     The element of endangerment can be established by

evidence showing that the defendant’s condition or operating manner “could have

endangered any person, including the public, the police, or the defendant.” Vanderlinden

v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied. (emphasis added).

Proof of endangerment goes beyond mere intoxication; there must be some independent

evidence of endangerment. Id. at 645-46. Such independent evidence may include proof

of excessive speed. Id. at 646.

       Here, Lee operated his motorcycle at a speed greater than the estimated speed limit

on a hilly and winding road. As a result of his speeding while impaired, he wrecked his

motorcycle, causing serious injury to both himself and to Long. This evidence supports

the trial court’s conclusion that Lee operated his motorcycle in a manner that endangered

both himself and his passenger.

       Lee emphasizes that the speed limit and the speed of his motorcycle are based on

estimates. Again, Lee is asking us to reweigh the evidence, which we will not do.

2.     Fundamental Error

       During the trial on this matter, the following exchange occurred between Long and

the deputy prosecutor:

       Q.     Were you familiar with seeing a jelly jar at the table with Jack Lee?



                                             7
       A.      Well, he would drink vodka from it. He would sip it throughout—at
               different times.

       Q.      All right.

       A.      Typically daily.

       Q.      So that’s how he drank his vodka?

       A.      Yes.

       Q.      All right. Did you see any type of liquid inside that jelly jar that
               morning?

       A.      Yes, I did.

       Q.      Did you see him sip or drink from that jelly jar at all that morning?

       A.      No, I did not.

       Q.      All right. Did you see him that morning at the breakfast table, Jill,
               consume anything that looked like or you thought might be an
               alcoholic beverage?

       A.      I do not recall that.

(Tr. 36-37).

       Lee contends that this testimony is prohibited by Indiana Evidence Rule 404(b),

which states that evidence of other acts “is not admissible to prove the character of a

person in order to show action in conformity therewith.” He acknowledges that counsel

did not object to the evidence at trial, but he maintains that admission of the evidence

constituted fundamental error.

       As a general rule, a trial court is afforded broad discretion in ruling on the

admissibility of evidence, and we will reverse such a ruling only upon a showing of an

                                              8
abuse of discretion. Gibson v. State, 733 N.E.2d 945, 951 (Ind. Ct. App. 2000). An

abuse of discretion occurs when a decision is clearly against the logic and effect of the

facts and circumstances before the trial court. Redding v. State, 844 N.E.2d 1067, 1069

(Ind. Ct. App. 2006). Failure to make a contemporaneous objection to the admission of

evidence results in waiver of any claim of error based upon that evidence. Delarosa v.

State, 938 N.E.2d 690, 694 (Ind. 2010). However, a claim waived may be reviewed on

appeal if the reviewing court determines that a fundamental error occurred. Id. The

fundamental error exception is “extremely narrow, and applies only when the error

constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.” Id.

(quoting Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006)).

       The State claims that Long’s testimony regarding Lee’s daily practice of

consuming vodka from a jar is intrinsic to the charged evidence and is therefore not

excluded under Indiana Evidence Rule 404(b). The State emphasizes that the rule “does

not bar evidence of uncharged acts that are ‘intrinsic’ to the charged offense.” State’s Br.

at 15 (citing Wages v. State, 863 N.E.2d 408, 411 (Ind. Ct. App. 2007), trans. denied).

Uncharged acts are intrinsic if they “occur at the same time and under the same

circumstances as the crimes charged.” Wages, id. (quoting Holden v. State, 815 N.E.2d

1049, 1054 (Ind. Ct. App. 2004), trans. denied).

       We cannot agree with the State’s reasoning. Long’s testimony regarding Lee’s

practice of drinking vodka from a jar did not describe an action observed by Long on the

                                             9
day of the accident. Accordingly, it was not an act that was intrinsic to the charged

offense.

       However, we note that the admission of this evidence does not constitute

fundamental error. Long’s brief testimony was given during a bench trial, and the trial

court is presumed to have used the evidence appropriately. See Purvis v. State, 829

N.E.2d 572, 587 (Ind. Ct. App. 2006) (holding that in criminal bench trials, we presume

that the trial court disregarded inadmissible testimony and rendered its decision solely on

the basis of relevant and probative evidence). At the end of trial, the trial court stated its

reasons for finding Lee guilty of the charged offense. The trial court’s only comments in

reference to Lee’s drinking habits was in response to defense counsel’s apparent question

as to why Long would have ridden on a motorcycle with an intoxicated operator. The

trial court did not rely on the evidence as proof of intoxication.

       The trial court relied on evidence indicating that (1) Lee vomited a clear liquid

immediately before operating the motorcycle; (2) Lee was glassy eyed right after he

vomited; (3) Lee was unsteady on his feet right after he vomited; (4) Long smelled the

odor of an alcoholic beverage on Lee’s person; (5) Officer Dungan smelled the odor of

consumed alcohol on Lee; and (6) Lunsford smelled the odor of alcohol on Lee’s breath.

In answer to Lee’s argument that Officer Dungan and Lunsford were smelling the single

beer Lee consumed minutes before, the trial court noted that no one smelled alcohol on

Long, who had also consumed a single beer minutes before the accident.



                                             10
         The challenged testimony caused no prejudice to Lee. The trial did not rely upon

it in reaching its verdict, and the evidence relied upon by the trial court was so strong as

to negate any effect of the testimony. In short, Lee’s claim of fundamental error fails.

         3.    Inappropriate Sentence

         Lee contends that the one-year sentence imposed by the trial court is

inappropriate.2 The revision of a sentence is authorized by the Indiana Constitution

through Indiana Appellate Rule 7(B), which provides that we “may revise a sentence

authorized by statute if, after due consideration of the trial court’s decision, the Court

finds that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” In determining the appropriateness of a sentence, a court of

review may consider any factors appearing in the record. Schumann v. State, 900 N.E.2d

495, 497 (Ind. Ct. App. 2009). The “nature of the offense” portion of the appropriateness

review begins with the advisory sentence. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind.

2007), clarified on rehearing, 875 N.E.2d 218 (Ind. 2007).                The “character of the

offender” portion of the sentence review refers to general sentencing considerations and

the relevant aggravating and mitigating circumstances. Major v. State, 873 N.E.2d 1120,

1131 (Ind. Ct. App. 2007), trans. denied. A defendant bears the burden of persuading us

that his sentence is inappropriate. Williams v. State, 891 N.E.2d 621, 633 (Ind. Ct. App.

2008).



2
 A person who commits a class A misdemeanor shall be imprisoned for a term of not more than one year
or be fined more than five thousand dollars. I.C. § 35-50-3-2.
                                                11
        In relation to the nature of the offense, we observe that Lee put more than just

himself and other potential victims in danger. His operation of his motorcycle while

under the influence of alcohol also put his passenger in danger, causing significant

injuries that resulted in surgery and a lengthy recovery period.

        In relation to Lee’s character, we observe that he has three prior convictions for

operating a vehicle while intoxicated. Despite these prior convictions, Lee has continued

to drink and drive. Apparently, Lee is neither reformed nor repentant.

        The nature of the offense and the character of the offender do not lead us to

conclude that the trial court’s sentence is inappropriate.3

        Affirmed.

ROBB, C.J., and MAY, J., concur.




3
  Lee refers to Indiana Code § 9-30-5-15(b), which states when a person has at least two previous
convictions of operating while intoxicated “he must be imprisoned for at least ten (10) days.” He reasons
that his prior convictions “are covered by the mandatory ten-day jail sentence imposed under [the
statute].” Lee’s Br. at 18. Lee clearly reads the words “at least” out of the statute, which is contrary to
the basic tenet of statutory interpretation that a statute should not be construed in such a way as to render
any part of a statute meaningless or superfluous. Hatcher v. State, 762 N.E.2d 189, 192 (Ind. Ct. App.
2002).
                                                    12
