      MEMORANDUM DECISION
                                                                   Feb 11 2015, 8:48 am
      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.



      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Dori Newman                                               Gregory R. Zoeller
      Newman & Newman, PC                                       Attorney General of Indiana
      Noblesville, Indiana
                                                                Katherine Modesitt Cooper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Daniel Cummings,                                         February 11, 2015

      Appellant-Defendant,                                     Court of Appeals Cause No.
                                                               29A02-1407-CR-509
              v.                                               Appeal from the Hamilton Superior
                                                               Court.
                                                               The Honorable Gail Bardach, Judge.
      State of Indiana,                                        Cause No. 29D06-1306-CM-4740
      Appellee-Plaintiff.




      Barteau, Senior Judge


                                       Statement of the Case
[1]   Daniel Cummings appeals his conviction by jury of Operating a Vehicle While




      Court of Appeals of Indiana | Memorandum Decision 29A02-1407-CR-509 | February 11, 2015   Page 1 of 5
      Intoxicated as a Class C misdemeanor.1 We affirm.


                                                     Issue
[2]   The sole issue for our review is whether there is sufficient evidence to support

      Cummings’ conviction.


                                   Facts and Procedural History
[3]   On June 20, 2013, at approximately 9:15 a.m., Carmel Police Department

      Officer Chad Amos stopped Cummings for speeding. As he approached the

      car, Officer Amos smelled a strong odor of burnt marijuana emanating from the

      vehicle. When Officer Amos asked Cummings for his registration, Cummings

      shuffled through a stack of papers in his glove box unable to find it. Officer

      Amos saw the registration in the papers and pointed it out to Cummings.

      Officer Amos noticed that Cummings’ speech was slurred and repetitive, and

      his eyes were red, glassy, and bloodshot.


[4]   Officer Amos asked Cummings to exit the vehicle, where the officer found a

      half-smoked marijuana cigarette directly to the left of the driver’s seat. As he

      prepared to administer field sobriety tests, Officer Amos performed a routine

      check of Cummings’ mouth for foreign objects and found a “green plant

      material floating all around in his mouth, stuck to his teeth, and coating the




      1
          Ind. Code § 9-30-5-2 (2001).


      Court of Appeals of Indiana | Memorandum Decision 29A02-1407-CR-509 | February 11, 2015   Page 2 of 5
      inside of his mouth as if he had just chewed a plant material.” Tr. p. 140. The

      plant material looked and smelled like marijuana.


[5]   Thereafter, Officer Amos administered several field sobriety tests. During the

      horizontal gaze nystagmus test, Cummings’ eyes did not converge or cross.

      This is a sign of marijuana use because certain drugs such as cannabis do not

      permit eye convergence. In addition, Officer Amos observed that Cummings

      had body tremors. Cummings failed both the one-leg stand and the nine-step

      walk and turn test because he stepped off the line, missed the heel to toe, used

      his arms for balance, and took eight steps instead of nine.


[6]   When Cummings refused to submit to a chemical test, Officer Amos obtained a

      search warrant for Cummings’ blood, which was drawn at the Hamilton

      County Jail. Lab tests revealed 3.9 nanograms of THC per milliliter of blood,

      which is a level where one would expect to see impairment.


[7]   A jury convicted Cummings of possession of marijuana as a Class A

      misdemeanor and operating a vehicle while intoxicated as a Class C

      misdemeanor. Cummings appeals his conviction for operating a vehicle while

      intoxicated as a Class C misdemeanor.


                                   Discussion and Decision
[8]   Cummings argues that there is insufficient evidence to support his conviction.

      Specifically, his sole contention is that there is insufficient evidence that he was

      intoxicated.


      Court of Appeals of Indiana | Memorandum Decision 29A02-1407-CR-509 | February 11, 2015   Page 3 of 5
[9]    In reviewing the sufficiency of the evidence, this Court will affirm the

       convictions if the probative evidence and reasonable inferences to be drawn

       therefrom could allow a reasonable trier of fact to find the defendant guilty

       beyond a reasonable doubt. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005).

       On appeal, we do not reweigh the evidence or judge the credibility of witnesses.

       Fields v. State, 679 N.E.2d 898, 900 (Ind. 1997). Rather, we look only to the

       evidence and reasonable inferences supporting the judgment to determine

       whether the trier of fact could reasonably reach the conclusion. Id. If there is

       substantial evidence of probative value supporting a conviction, this Court will

       not set the judgment aside. Id.


[10]   Indiana Code section 9-30-5-2 provides that a person who operates a vehicle

       while intoxicated commits a Class C misdemeanor. Proof of intoxication may

       be established by showing impairment. Perkins v. State, 812 N.E.2d 836, 841

       (Ind. Ct. App. 2004). Evidence of the following can establish impairment: 1)

       impaired attention and reflexes; 2) watery or bloodshot eyes; 3) the odor of

       marijuana; 4) unsteady balance; 5) failure of field sobriety tests; and 6) slurred

       speech. See Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999).


[11]   Here, our review of the evidence reveals that Cummings exhibited impaired

       attention and reflexes as evidenced by his decreased manual dexterity and

       fumbling through papers trying to find his car registration. He also exhibited

       red, glassy, and bloodshot eyes as well as slurred and repetitive speech. Officer

       Amos smelled the strong odor of burning marijuana emanating from the

       vehicle, and Cummings failed several field sobriety tests, including the nine-step

       Court of Appeals of Indiana | Memorandum Decision 29A02-1407-CR-509 | February 11, 2015   Page 4 of 5
       walk and turn test and the one-leg stand test. This is sufficient evidence from

       which a jury could have concluded beyond a reasonable doubt that Cummings

       was intoxicated at the time Officer Amos stopped him for speeding.


[12]   Affirmed.


[13]   Baker, J., and Riley, J., concur.




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