MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any
                                                                          Apr 01 2020, 11:24 am
court except for the purpose of establishing
the defense of res judicata, collateral                                         CLERK
                                                                           Indiana Supreme Court
estoppel, or the law of the case.                                             Court of Appeals
                                                                                and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Valerie K. Boots                                          Curtis T. Hill, Jr.
Kelly M. Starling                                         Attorney General of Indiana
Indianapolis, Indiana                                     Caroline G. Templeton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Rita Taylor,                                              April 1, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2517
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable David Certo, Judge
Appellee-Plaintiff.                                       Trial Court Cause No.
                                                          49G12-1809-CM-33248



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020                      Page 1 of 13
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Rita Taylor (Taylor), appeals her conviction and sentence

      for operating a vehicle while intoxicated endangering a person, a Class A

      misdemeanor, Ind. Code § 9-30-5-2(b).


[2]   We affirm in part, reverse in part, and remand for further proceedings.


                                                   ISSUES
[3]   Taylor presents this court with two issues, which we restate as:


              (1) Whether the State proved beyond a reasonable doubt that
                 Taylor endangered a person while driving intoxicated; and


              (2) Whether the trial court abused its discretion when it imposed
                 certain probation fees to be assessed on a sliding scale.


                      FACTS AND PROCEDURAL HISTORY
[4]   At approximately 4:00 p.m. on September 5, 2018, Officer Craig Wildauer

      (Officer Wildauer) of the Indianapolis Metropolitan Police Department was on

      patrol when he observed a vehicle driven by Taylor traveling north on Denny

      Street and turning east onto 13th Street. Officer Wildauer observed that Taylor’s

      vehicle had a cracked windshield and that she was driving left of center.


[5]   Officer Wildauer initiated a traffic stop. When he spoke to Taylor, Officer

      Wildauer noted a strong odor of alcohol emanating from her, her eyes were

      glassy and bloodshot, her speech was slurred, and her balance was unsteady, all

      of which he recognized through his training and experience as indicia of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 2 of 13
      intoxication. Officer Wildauer administered Taylor a horizontal gaze

      nystagmus test, which she failed. Officer Wildauer concluded that Taylor was

      impaired.


[6]   Officer Wildauer advised Taylor of Indiana’s implied consent law and her

      Miranda rights. Taylor told Officer Wildauer that she had consumed three

      sixteen-ounce cans of beer and that she had taken Oxycodone at 2:00 p.m.

      Taylor consented to a chemical test, which indicated the presence of alcohol

      and Oxycodone.


[7]   On September 29, 2018, the State filed an Information, charging Taylor with

      Class A misdemeanor operating a vehicle while intoxicated endangering a

      person and Class A misdemeanor operating a vehicle with an ACE of .08 or

      more. On August 14, 2019, the trial court held Taylor’s bench trial. Officer

      Wildauer testified that Denny Street is narrow and does not have road lines but

      that it has adequate room for two vehicles to pass each other. The officer

      related that when cars are parked along the street, moving vehicles must travel

      left of center to get around a parked car. Otherwise, “when there are no

      vehicles there, a vehicle, typically you’ll stay on your right side of the roadway.

      You wouldn’t be in the northbound part of the lane traveling up the north side

      of the road. That’s left of center.” (Transcript p. 15). According to Officer

      Wildauer, Taylor was not swerving as she drove on Denny Street, but she was

      not maintaining her lane of travel “when available[,]” which is a traffic

      infraction. (Tr. p. 13). The trial court granted Taylor’s motion to dismiss the



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 3 of 13
      charge of operating with an ACE of .08 or more but found Taylor guilty of

      operating a vehicle while intoxicated endangering a person.


[8]   On September 26, 2019, the trial court held Taylor’s sentencing hearing.

      Taylor’s counsel asked that the trial court consider waiving or lowering Taylor’s

      fees because she is on a fixed income and had lost her Medicaid benefit. The

      trial court sentenced Taylor to 365 days, all suspended to time served and

      probation. The trial court ordered probation with “the standard conditions and

      fees.” (Tr. p. 40). The trial court also stated that it would “ask that the

      probation department place you on a sliding scale concerning fees. They will

      ask you to pay what they think you’re able to pay. But, if money is left over at

      the end of the case, we can talk about it here.” (Tr. p. 41). The trial court

      stated that it imposed a $400 assessment fee and a mandated $200

      countermeasure fee. The trial court declined to impose $185.50 in court costs,

      provided that Taylor was not arrested during her probation period. The trial

      court also ordered Taylor to attend a destructive decision panel, undergo a

      substance abuse evaluation, follow all substance abuse treatment

      recommendations, attend an impact panel, and refrain from the use of alcohol

      and any medication for which she did not have a prescription. Taylor’s

      probation was to become non-reporting after she completed the terms imposed

      and paid all fees.


[9]   The trial court’s written sentencing order provided for the following probation

      fees:



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 4 of 13
               Adult Probation Administrative Fee                                      $50.00

               Adult Probation Monthly and Initial User Fee                            $281.30

               Alcohol and Drug Counter Fee – County                                   $150.00

               Alcohol and Drug Countermeasures Fee                                    $50.00

               Alcohol/Drug Services Program User Fee                                  $400.00

               Probation User Fee – Clerk’s 3%                                         $8.70

               Total                                                                   $940.00


       (Appellant’s App. Vol. II, p. 13).


[10]   Taylor now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                          I. Sufficiency of the Evidence

                                             A. Standard of Review

[11]   Taylor challenges the sufficiency of the evidence supporting the endangerment

       element of the offense. It is well-established that when we review the

       sufficiency of the evidence to support a conviction, we consider only the

       probative evidence and reasonable inferences supporting the verdict. Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to

       assess witness credibility or to weigh the evidence. Id. We will affirm the

       conviction unless no reasonable fact-finder could find the elements of the crime

       proven beyond a reasonable doubt. Id.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020             Page 5 of 13
                                                B. Endangerment

[12]   The State charged Taylor with Class A misdemeanor operating a vehicle while

       endangering a person. In order to prove the offense, the State was required to

       show that Taylor operated her vehicle “in a manner that endangere[d] a

       person.” I.C. § 9-30-5-2(b). The State may prove the endangerment element by

       showing 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. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009), adopted by

       929 N.E.2d 196 (Ind. 2010).


[13]   In Outlaw, which Taylor likens to her case, an officer stopped Outlaw’s car after

       observing that it had a non-illuminated license plate light. Id. at 380. The

       officer initiated a traffic stop and observed indicia of intoxication when

       interacting with Outlaw. Id. Outlaw was convicted of Class A misdemeanor

       operating his vehicle while intoxicated endangering a person, and, on appeal,

       Outlaw challenged the evidence supporting the endangerment element of the

       offense. Id. at 381. This court held that the State could not rely merely on

       evidence of a defendant’s intoxication to prove endangerment and that the State

       had failed to prove endangerment because the stop of Outlaw’s vehicle was

       based on “a non-illuminated license plate rather than erratic or unlawful

       driving[.]” Id. at 381-82 (emphasis added). The court reasoned that, apart from

       Outlaw’s intoxication, there was no evidence that Outlaw had operated his

       vehicle in a manner that endangered himself or anyone else. Id. at 382.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 6 of 13
[14]   Taylor also directs our attention to Poortenga v. State, 99 N.E.3d 691, 698 (Ind.

       Ct. App. 2018), in which the court also found insufficient evidence of

       endangerment where the reason for the traffic stop was a non-illuminated

       license plate and a non-functioning headlight. However, we find Outlaw and

       Poortenga to be distinguishable. Here, Officer Wildauer stopped Taylor because,

       in addition to having a cracked windshield, she was driving left of center, which

       the trial court could have reasonably inferred caused a danger to the public. See

       Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011) (finding sufficient

       evidence of endangerment where officer testified that he saw Staten drive left of

       center and through a three-way stop), trans. denied. Taylor argues that Staten is

       distinguishable because she only committed one moving violation instead of

       two and that her “action of driving left of center, alone, is not sufficient to prove

       endangerment.” (Appellant’s Br. p. 13). However, Taylor provides us with no

       authority for that proposition. While we agree with Taylor that a cracked

       windshield did not prove endangerment, we conclude that her act of driving left

       of center on a public street did.


[15]   Taylor also directs our attention to the fact that the street was narrow, had no

       lane markings, and had cars parked on both sides of the street. Taylor argues

       that under those conditions, driving left of center is “regularly the safest

       option.” (Appellant’s Br. p. 13). Taylor’s argument ignores evidence in the

       record that there where there were no cars parked, there was adequate space to

       maintain a proper lane and that Taylor did not do so when that space was

       available. Taylor essentially requests that we consider evidence that does not


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 7 of 13
       support the trial court’s judgment and reweigh the evidence, which is contrary

       to our standard of review. See Drane, 867 N.E.2d at 146. Accordingly, we

       conclude that the State produced sufficient evidence that Taylor endangered a

       person.


                                                II. Probation Fees

                                               A. Standard of Review

[16]   Taylor next contends that the trial court abused its discretion when it imposed

       probation fees. As a general matter, sentencing decisions include decisions to

       impose fees and costs. Amick v. State, 126 N.E.3d 909, 911 (Ind. Ct. App.

       2019). We review a trial court’s sentencing decisions for an abuse of discretion.

       Id. An abuse of discretion occurs when the trial court’s decision is clearly

       against the logic and effect of the facts and circumstances before it, or the

       reasonable, probable, and actual deductions to be drawn from those facts and

       circumstances. McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007).


                                             B. Presence at Sentencing

[17]   Taylor’s first challenge to the trial court’s imposition of probation fees is that

       she was not present when the trial court imposed some of those fees because the

       trial court’s written sentencing order delineated certain fees that it did not

       mention at the sentencing hearing. As a general rule, a defendant has a

       statutory and common law right to be present at sentencing. See I.C. § 35-38-1-

       4(a); Cleff v. State, 565 N.E.2d 1089, 1091 (Ind. Ct. App. 1991), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 8 of 13
[18]   Taylor was present in court when the trial court imposed its 365-day sentence,

       all of which was suspended to time served and probation. She was also present

       when the trial court ordered probation with “the standard conditions and fees.”

       (Tr. p. 40). Taylor does not argue that the fees contained in the trial court’s

       written order but not specifically mentioned at sentencing were outside of

       standard and authorized probation fees. Inasmuch as Taylor points out a

       discrepancy between the trial court’s oral and written sentencing statements,

       such discrepancies are resolved by examining the trial court’s oral and written

       sentencing statements to discern its true intent. McElroy, 865 N.E.2d at 589.

       We have the option of crediting the statement that accurately reflects the trial

       court’s intent or remanding for clarification. Id. Taylor does not argue that the

       trial court’s written order fails to reflect its true intent, and we conclude from

       the trial court’s oral sentencing statement that it intended to impose “standard”

       probation fees and that those are the additional fees that appeared in its written

       sentencing order. (Tr. p. 40). In short, we find no abuse of the trial court’s

       discretion.


                                     C. Indigency Hearing and Sliding Scale

[19]   Taylor also contends that the trial court abused its discretion when it imposed

       probation fees without first conducting an indigency hearing and that its order

       that her probation fees be placed on a sliding scale impermissibly delegated

       authority to the probation department to assess her fees. We address each

       argument in turn.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 9 of 13
[20]   Indiana Code section 33-37-2-3(a) provides that when a trial court imposes

       costs, it “shall conduct a hearing to determine whether the convicted person is

       indigent.” The statute also allows a trial court to impose costs but to suspend

       payment of some or all of those costs until the defendant has completed some

       or all of her sentence. I.C. § 33-37-2-3(b). If a trial court has suspended some

       or all costs, it “shall conduct a hearing at the time the costs are due to determine

       whether the convicted person is indigent.” Id.


[21]   Here, the trial court did not conduct an indigency hearing. The trial court

       imposed probation fees and told Taylor that it would ask the probation

       department to place her fees on a sliding scale, but it also stated that “if money

       is left over at the end of the case, we can talk about it here.” (Tr. p. 41). It is

       unclear to us from these statements whether the trial court intended to suspend

       some or all of Taylor’s obligation to pay probation fees until she had completed

       serving her sentence. Therefore, we vacate that portion of the trial court’s

       sentencing order imposing probation fees and remand to the trial court so that it

       may clarify its intention and hold an indigency hearing if it imposed probation

       fees without suspending Taylor’s obligation to pay.


[22]   As to Taylor’s argument that the trial court impermissibly delegated to the

       probation department its authority to assess fees, we agree with Taylor’s

       proposition that it is the trial court’s, not the probation department’s, duty to

       assess fees. See I.C. § 35-38-2-1(e) (“In addition to any other conditions of

       probation, the court may order each person convicted of a misdemeanor to pay

       [fees].”). Here, the trial court ordered probation fees but also stated that it

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 10 of 13
       would “ask that the probation department place you on a sliding scale

       concerning fees.” (Tr. p. 41). There is no information in the record regarding

       the nature of the sliding scale or how it is administered, so we are unable to

       determine whether the trial court meant to delegate its statutory duty to the

       probation department to assess fees in this matter. Accordingly, we remand to

       the trial court to also provide it with an opportunity to clarify its intent

       regarding the application of the sliding scale to Taylor’s probation fees.


                                             CONCLUSION
[23]   Based on the foregoing, we conclude that the State established beyond a

       reasonable doubt that Taylor operated her vehicle in a manner that endangered

       a person. We also conclude that the trial court did not impermissibly sentence

       Taylor in her absence, but we remand to the trial court to clarify its intent

       regarding whether it suspended the payment of any portion of Taylor’s

       probation fees and regarding the application of the sliding scale to those fees.


[24]   Affirmed in part, reversed in part, and remanded for further proceedings.


       Mathias, J. concurs


       Tavitas, J. concurs and dissents with separate opinion




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 11 of 13
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Rita Taylor,                                              Court of Appeals Case No.
                                                                 19A-CR-2517
       Appellant-Defendant,

                v.

       State of Indiana,
       Appellee-Plaintiff.




       Tavitas, Judge, concurring and dissenting


[25]   I concur with the majority’s determination that the evidence is sufficient to

       sustain Taylor’s conviction for operating a vehicle while intoxicated

       endangering a person, a Class A misdemeanor. I respectfully dissent, however,

       regarding the majority’s reversal of the probation fees imposed by the trial

       court.


[26]   The trial court here imposed probation fees and ordered the probation

       department to “place [Taylor] on a sliding scale concerning fees.” Tr. Vol. II p.

       41. Taylor now argues that the trial court should have conducted an indigency

       hearing and could not “delegate the determination of Taylor’s ability to pay fees


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020         Page 12 of 13
       to the probation department” by placing Taylor on a “sliding scale.”

       Appellant’s Br. p 17.


[27]   This procedure, however, was authorized in Johnson v. State, 27 N.E.3d 793

       (Ind. Ct. App. 2015). In Johnson, the trial court imposed probation fees and

       ordered “a sliding fee scale for the probation fees, but delayed making an

       indigency determination until more information regarding Johnson’s financial

       situation came to light.” Johnson, 27 N.E.3d at 794. This Court held:


               Johnson argues that the trial court abused its discretion when it
               ordered him to pay $340 in probation fees without first
               conducting an indigency hearing. Johnson rightly asserts that,
               under Indiana Code section 33-37-2-3, if a trial court imposes
               costs on a defendant, a trial court is required to conduct an
               indigency hearing. However, “the statute does not otherwise
               dictate when the hearing is to be held.” [Berry v. State], 950
               N.E.2d [798,] 802 (Ind. Ct. App. 2011); Ind. Code § 33-37-2-3. A
               trial court acts within its authority when it chooses to wait and
               see if a defendant can pay probation fees before it finds the
               defendant indigent. See Ind. Code ch. 35-38-2 (no language in
               this chapter requires the trial court to conduct an indigency
               hearing before or directly after ordering probation fees). That
               being said, the trial court has a duty to conduct an indigency
               hearing at some point in time. I.C. § 33-37-2-3. At the latest, an
               indigency hearing for probation fees should be held at the time a
               defendant completes his sentence. Consequently, in this case, on
               the completion of Johnson’s sentence, the trial court should
               conduct an indigency hearing to assess Johnson’s ability to pay
               probation fees.


       Id. at 794-95 (footnote omitted). Given our holding in Johnson, I would affirm

       the trial court’s decision in all respects.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020   Page 13 of 13
