      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),                                               FILED
      this Memorandum Decision shall not be                                            Apr 10 2019, 5:32 am

      regarded as precedent or cited before any                                            CLERK
      court except for the purpose of establishing                                     Indiana Supreme Court
                                                                                          Court of Appeals
                                                                                            and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Cara Schaefer Wieneke                                    Curtis T. Hill, Jr.
      Wieneke Law Office, LLC                                  Attorney General of Indiana
      Brooklyn, Indiana                                        Lyubov Gore
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      William R. Grimes,                                       April 10, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1583
              v.                                               Appeal from the Sullivan Superior
                                                               Court
      State of Indiana,                                        The Honorable Hugh R. Hunt,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               77D01-1805-CM-328



      Mathias, Judge.


[1]   William R. Grimes (“Grimes”) appeals his conviction of Operating While

      Intoxicated as a Class C Misdemeanor from the Sullivan Superior Court. He


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019                       Page 1 of 10
      argues that the State presented insufficient evidence to prove the charge beyond

      a reasonable doubt.

[2]   We affirm.


                                  Facts and Procedural History
[3]   On May 15, 2018, around 10:15 a.m., Lieutenant William Snead (“Lieutenant

      Snead”) with the Sullivan County Sherriff’s Department observed Grimes

      driving in his vehicle. Lieutenant Snead saw that the passenger side of the

      windshield on Grimes’s vehicle was shattered and caved in. Lieutenant Snead

      had stopped Grimes approximately two months earlier and had warned him

      not to drive until he had fixed his windshield. Because Grimes was still driving

      this vehicle and had not fixed the windshield, Lieutenant Snead activated his

      emergency lights in order to initiate a traffic stop.


[4]   Grimes put his arm out of the window in order to acknowledge Lieutenant

      Snead; however, Grimes continued to drive. Lieutenant Snead pulled up next

      to Grimes and told him to “pull over, pull over.” Tr. p. 9. However, Grimes

      continued driving. After continuing to drive a bit more, Grimes eventually

      pulled over into a nearby field. When Lieutenant Snead approached the vehicle,

      he asked Grimes why it took so long for him to pull over. Grimes responded

      that he was “just trying to get off the road.” Tr. p. 12. When asked about the

      windshield, Grimes responded that he had not had time to get the windshield

      fixed.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 2 of 10
[5]   Grimes provided Lieutenant Snead his driver’s license, and Lieutenant Snead

      asked for Grimes’s registration. Grimes searched through his glove box and

      handed the Lieutenant his insurance information. Lieutenant Snead explained

      that he did not need insurance information and again asked Grimes for his

      registration. Grimes searched his glove box for about thirty to forty more

      seconds before producing his registration.

[6]   The lieutenant, observing a screw driver on the dashboard, asked Grimes to

      step out of his vehicle. He asked Grimes if he had any weapons on him, and

      Grimes informed the Lieutenant that he had a knife on him and placed the

      knife on the driver’s seat of the car. Lieutenant Snead noticed another knife on

      Grimes and removed this second knife. He then conducted a pat-down for

      weapons which did not produce any further weapons.


[7]   Lieutenant Snead observed that Grimes was behaving differently than during

      his previous interactions with Grimes. Specifically, Grimes was slow to respond

      to the officer’s questions. He had a slow reaction speed in general, moving and

      speaking slowly. Lieutenant Snead also observed that Grimes’s pupils were

      constricted to the size of pinpoints as if a bright light was shining in his eyes

      although Grimes was parked in the shade.


[8]   Lieutenant Snead returned to his vehicle in order to request a second officer. He

      also ran a check on Grimes’s license and registration. He then returned to

      Grimes’s vehicle and administered field sobriety tests. He performed the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 3 of 10
       Horizontal Gaze Nystagmus (“HGN”) test, the one-leg stand test, and the walk

       and turn test.

[9]    When Lieutenant Snead administers the walk and turn test, he observes to see if

       the individual uses arms to balance, does not touch heel to toe, starts too early,

       loses balance, steps off the line, or turns improperly. When Grimes performed

       the walk and turn test, he stepped off the line three different times. He also

       walked “in a big U” to turn around instead of keeping one foot on the ground

       and pivoting to turn around. Tr. p. 17.

[10]   During the one-leg stand test, the individual being tested is to stand with his or

       her arms to their sides, “hold one leg up in the air, look at their foot, hold it up

       about six inches and count to thirty by going one thousand one, one thousand

       two, all the way to thirty.” Tr. p. 18. Grimes skipped a couple numbers when

       counting to thirty, but Lieutenant Snead graded Grimes as passing this

       particular test.


[11]   When Lieutenant Snead administered the HGN test, he asked Grimes if he had

       any problems with his eyes. Grimes indicated that he did not see well out of one

       of his eyes; but he did not indicate that would be a problem for completing the

       test. Lieutenant Snead observed a lack of “smooth pursuit,” and his eye showed

       nystagmus before the forty-five degree onset where the eyes involuntarily

       twitch. Tr. p. 16.


[12]   The lieutenant scored Grimes as failing the walk and turn test and the HGN

       test. After administering these tests, Lieutenant Snead began to read Grimes the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 4 of 10
       implied consent warning in order to administer a chemical test. Grimes then

       asked Lieutenant Snead, “well what if I would have had smoked marijuana a

       couple days ago[? T]hat would be in my system.’” Tr. p. 21. After Lieutenant

       Snead informed Grimes that smoking marijuana a couple days ago would not

       have an effect on him at that moment, Grimes stated, “[w]ell, I’m not saying I

       smoked marijuana two days ago.” Tr. p. 21.

[13]   At some point during Lieutenant Snead’s interactions with Grimes, Deputy

       Copeland arrived as back-up. Because Grimes was “argumentative” with

       Lieutenant Snead regarding his decision to arrest him, Deputy Copeland also

       performed field sobriety tests on Grimes. Lieutenant Snead observed, but did

       not participate, in the second set of field sobriety tests. He remained by his

       vehicle, away from the interactions between Deputy Copeland and Grimes.


[14]   Deputy Copeland testified that upon arriving at the scene, he noticed the

       cracked windshield and that Grimes’s eyes “‘look[ed] terrible’” Tr. p. 45. He

       also observed his speech and movements to be slow compared to his prior

       encounter with Grimes.1 In part because Grimes was complaining about

       Lieutenant Snead’s administration of the field sobriety tests, Deputy Copeland

       administered the HGN Test, the walk and turn test, and the one-leg stand test.

       He observed that Grimes started the walk and turn test a bit early and with the

       wrong foot. He also took ten steps instead of nine and missed placing his feet



       1
        Deputy Copeland was also present during the prior interaction when Lieutenant Snead issued Grimes a
       warning for driving with a cracked windshield.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019              Page 5 of 10
       heel to toe on a few steps. With respect to the second administration of the one-

       leg stand test, Grimes started early and swayed a little bit but did not miss any

       counting. Deputy Copeland administered the tests on the asphalt, and

       Lieutenant Snead administered the tests on an area with gravel and dirt.


[15]   Lieutenant Snead ask Grimes once again if he would submit to a chemical test.

       When Grimes responded that he would not, Lieutenant Snead handcuffed

       Grimes. Lieutenant Snead testified that he arrested Grimes for Operating While

       Intoxicated, because his actions and movements were slow. His state of mind

       was not consistent with his previous observations of Grimes. Moreover, Grimes

       failed two of the three field sobriety tests administered, his pupils were

       constricted, and he had difficulty pulling over when Lieutenant Snead initiated

       the traffic stop.


[16]   Grimes was then transported to the Sullivan County Jail. Here, Rick

       Loudermilk, a parole agent, observed Grimes between 2:00 p.m. and 3:00 p.m.

       in a holding cell later that same day. When Loudermilk arrived at the cell,

       Grimes was asleep on the floor. After Loudermilk woke up Grimes,

       Loudermilk observed that Grimes appeared intoxicated. He specifically

       observed that Grimes’s eyes were glazed over and that Grimes seemed slow to

       respond and process the conversation. Loudermilk had had several interactions

       with Grimes in the past, and he testified that he had never seen Grimes act in

       the manner he had on the day in question.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 6 of 10
[17]   Bobbie Pirtle, Grimes’s friend, was in the passenger seat the day Grimes was

       arrested. She testified that she has known Grimes all of her life. She was with

       him all morning. She testified she did not observe him taking any drugs or

       substances. She also testified that she believes Grimes does not drink. She

       agrees that Grimes was not understanding Lieutenant Snead’s commands and

       was trying to help Grimes understand the commands until Lieutenant Snead

       “told [her] to shut up.” Tr. p. 69. She stated she did not notice anything

       unusual about his actions that morning. She also testified that in 2012, Snead

       was in a car accident and his speech has been slower ever since.


[18]   Faye Pirtle, grandmother to Grimes, also testified on behalf of Grimes. She also

       stated that Grimes has had trouble with one of his eyes as a result of a previous

       car accident. She stated she was driving by during the interactions between

       Grimes and Lieutenant Snead. Lieutenant Snead motioned for her to continue

       on down the road, but she called to Grimes, “are you okay?” Tr. p. 79. Faye

       testified that Grimes seemed fine during that interaction.

[19]   The trial court held a bench trial on June 1, 2018. After the bench trial, the trial

       court found him guilty of Operating a Motor Vehicle While Intoxicated and

       sentenced him to sixty days executed. Grimes now appeals his conviction


                                      Discussion and Decision
[20]   Upon a challenge to a conviction based on the sufficiency of evidence to

       support a conviction, a reviewing court does not reweigh the evidence or judge

       the credibility of the witnesses. Alkhalidi v. State, 753 N.E.2d 625, 627 (Ind.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 7 of 10
       2001). Appellate courts must consider only the probative evidence and

       reasonable inferences supporting the verdict. Bald v. State, 766 N.E.2d 1170,

       1173 (Ind. 2002). We “must 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.’” McHenry v State,

       820 N.E.2d 124, 126 (Ind. 2005) (citing Tobar v. State, 740 N.E.2d 109, 111–12

       (Ind. 2000). A conviction may be based upon circumstantial evidence alone.

       Perez v. State, 872 N.E.2d 208, 213 (Ind. Ct. App. 2007), trans. denied. Reversal is

       appropriate only when reasonable persons would not be able to form inferences

       as to each material element of the offense. Id.


[21]   In order to convict Grimes of his charge of operating a vehicle while

       intoxicated, the State was required to prove beyond a reasonable doubt that he

       was operating a motor vehicle while intoxicated. Ind. Code § 9-30-5-2. The

       evidence is clear that Grimes was operating a motor vehicle, and Grimes does

       not dispute that he was operating a motor vehicle. However, Grimes disputes

       that the State met its burden of proving beyond a reasonable doubt that that he

       was intoxicated. Grimes attributes his slow dexterity to a prior head injury,

       poor vision in one eye, and feeling groggy from waking up shortly before the

       traffic stop. “Intoxicated” is defined by the Indiana Code section 9-13-2-86 as:


               under the influence of:


                   (1) alcohol;


                   (2) a controlled substance (as defined in IC 35-48-1);
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 8 of 10
                   (3) a drug other than alcohol or a controlled substance;


                   (4) a substance described in IC 35-46-6-2 or IC 35-46-6-3;


                   (5) a combination of substances described in subdivisions (1)
                       through (4); or


                   (6) any other substance, not including food and food
                       ingredients (as defined in IC 6-2.5-1-20), tobacco (as
                       defined in IC 6-2.5-1-28), or a dietary supplement (as
                       defined in IC 6-2.5-1-16);


               so that there is an impaired condition of thought and action and
               the loss of normal control of a person’s faculties.


[22]   “The State need not present separate proof of impairment of action, impairment

       of thought, and loss of control of faculties to establish an individual’s

       intoxication.” Woodson v. State, 966 N.E.2d 135, 142 (Ind. Ct. App. 2010), trans.

       denied. An individual’s impairment is determined by considering his capability

       as a whole, not component by component, such that impairment of any of these

       three abilities equals impairment. Id. “Evidence of the following can establish

       impairment: (1) the 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) unsteady balance; (6) failure of field sobriety tests; (7)

       slurred speech.” Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008)

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




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 9 of 10
[23]   Here, three officials who had prior encounters with Grimes testified that his

       attention and processing were impaired. Deputy Copeland testified that, on the

       day in question, Grimes’s eyes appeared “terrible.” Lieutenant Snead testified

       that Grimes’s pupils appeared severely constricted even when in the shade.

       Grimes was slow to pull over and had difficulty providing Lieutenant Snead

       with his registration. Grimes failed two out of the three field sobriety tests

       administered, unable to walk on the line. Several hours later, a parole agent

       who also had prior interactions with Grimes observed him in the holding cell at

       the jail. The parole agent also observed that Grimes appeared to be intoxicated

       because his eyes were glazed over and he was slow to process the conversation

       and the interactions between the two. Grimes’s friend admitted his processing

       was slow that day but that he had an unspecified head injury in a car accident

       in 2012. Grimes’s grandmother testified that he seemed fine when she asked

       him a question as she drove by. Grimes’s request for this court to believe his

       friend and grandmother is a request to judge credibility and reweigh the

       evidence, which we will not do.


                                                 Conclusion
[24]   The record in this matter contains sufficient evidence regarding Grimes’s

       impairment and intoxication. Accordingly, we uphold the conviction for

       operating a vehicle while intoxicated.


[25]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1583 | April 10, 2019   Page 10 of 10
