 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.




ATTORNEYS FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:
CHARLES W. LAHEY                                    GREGORY F. ZOELLER
South Bend, Indiana                                 Attorney General of Indiana

                                                    MICHELLE BUMGARNER
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                                                                             Apr 19 2013, 9:23 am
                              IN THE
                    COURT OF APPEALS OF INDIANA

DAVID SMIGIELSKI,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
           vs.                                      )      No. 71A05-1209-CR-492
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )

                   APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                         The Honorable Roland Chamblee, Judge
                             Cause No. 71D08-1103-FD-160


                                          April 19, 2013
                 MEMORANDUM DECISION – NOT FOR PUBLICATION

MATHIAS, Judge
       David Smigielski (“Smigielski”) was convicted of Class C misdemeanor operating

a motor vehicle while intoxicated and Class D felony operating a motor vehicle while

intoxicated after having been convicted of operating a motor vehicle while intoxicated.

Smigielski appeals and argues that there was insufficient evidence to support his

conviction for operating a motor vehicle while intoxicated and that juror bias prevented

Smigielski from receiving an impartial jury, which constituted fundamental error.

       We affirm.

                                 Facts and Procedural History

       The facts most favorable to the trial court’s judgment reveal that on the night of

March 3, 2011, and early morning of March 4, 2011, New Carlisle Police Officer Jeffrey

Roseboom (“Officer Roseboom”) and Reserve Officer Joshua Szuba (“Officer Szuba”)1

were working on a drunk driving task force in St. Joseph County. Officer Roseboom

noticed a gold Lincoln traveling in excess of the speed limit. After he confirmed the

excessive speed using radar, Officer Roseboom initiated a traffic stop. While Smigielski

found his registration and identification card, Officer Roseboom noticed a strong smell of

alcohol emanating from the vehicle. He also noted Smigielski’s slow manual dexterity;

red, watery eyes; and slow speech. Smigielski admitted that he consumed a few drinks.

Officer Roseboom began administering several field sobriety tests. At the beginning of

this process, Officer Roseboom asked Smigielski if there were any medications, physical




1
 At the time of trial, Officer Roseboom was New Carlisle Police Chief and Officer Szuba was a full-time
police officer with the New Carlisle Police Department.
                                                  2
injuries, or impairments that would prohibit him from performing the tests. Smigielski

said no. Tr. p. 19.

       In all, Officer Roseboom conducted six different field sobriety tests. Smigielski

failed three and self-terminated three.      First, Officer Roseboom administered the

horizontal gaze nystagmus test.        Smigielski failed.    Second, Officer Roseboom

administered the walk and turn test. Smigielski self-terminated, claiming a back problem.

Third, Officer Roseboom administered the one-leg-stand test. Again Smigielski self

terminated, claiming the same back problem.        Due to the self-terminations, Officer

Roseboom began administering sobriety tests that did not involve leg movement. Fourth,

Smigielski failed the finger-to-nose test. Fifth, Smigielski failed the backward count test

when he could not count past five. Sixth, Smigielski self terminated the finger count

after he lost count on the second finger.

       Officer Roseboom then read Smigielski the implied consent law and offered the

chemical test several times. While Officer Roseboom was reading the implied consent,

Smigielski repeatedly asked Officer Roseboom to let him go. Smigielski finally refused

the chemical test after asserting that he would not pass. Officer Roseboom then arrested

Smigielski for operating while intoxicated. While Officer Roseboom was placing him in

handcuffs, Smigielski became belligerent. Tr. p. 26. Officer Roseboom ensured that the

gold Lincoln was locked and safely parked on the side of the road and then transported

Smigielski to the county jail.

       A jury trial commenced on March 29, 2012. During jury deliberations, the jury

asked the court, “Does under the influence ‘mean only alcohol?’” Tr. p. 116. After a

                                            3
discussion between the trial court, prosecutor, and Smigielski’s defense attorney, the

court responded to the jury, “the instructions provide them with the relevant statutory

definition. Which means I am not saying yes and I am not saying no, tell them to read

the instructions.” Tr. p. 117. Both the prosecutor and Smigielski’s defense attorney

agreed to this response. The jury found Smigielski guilty of operating a motor vehicle

while intoxicated, a Class C misdemeanor (Count I).         After the verdict, Smigielski

pleaded guilty to operating a motor vehicle while intoxicated after having been convicted

of operating a motor vehicle while intoxicated, a Class D felony (Count II). Smigielski

had five prior convictions for operating a vehicle while intoxicated.

       During the sentencing hearing on August 29, 2012, the court merged Count I with

Count II and gave Smigielski the maximum sentence of three years in the Indiana

Department of Correction. Of that three-year sentence, twelve months were executed and

twenty-four months were suspended to probation.

                             I. Sufficiency of the Evidence

       Smigielski argues that the evidence is insufficient to support his conviction.

Smigielski attributes his field sobriety self-terminations and failures to previous health

problems. Upon a challenge to the sufficiency of evidence to support a conviction, we

neither reweigh the evidence nor judge the credibility of the witnesses; instead, we

respect the exclusive province of the trier of fact to weigh any conflicting evidence.

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the probative

evidence and reasonable inferences supporting the verdict, and we will affirm if the

probative evidence and reasonable inferences drawn from the evidence could have

                                             4
allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt.

Id.

       Smigielski was given six field sobriety tests and failed to pass any of them. Officer

Roseboom testified that he was unaware of any of Smigielski’s dental issues. Tr. p. 84.

However, Officer Roseboom directly asked Smigielski if he had any health problems

before administering any of the tests. Smigielski said no. None of Smigielski’s health

problems account for his inability to count backwards from ten to zero, his red, watery

eyes, or his own admission that he had consumed a few drinks. His excessive speed,

slow manual dexterity, pleas to be let go, and subsequent belligerence were certainly not

caused by his health problems. There is more than enough probative evidence and

reasonable inference drawn from that evidence to allow a trier of fact to find Smigielski

guilty beyond a reasonable doubt.

                                      II. Juror Bias

       Smigielski argues that the trial court committed a fundamental error when it

proceeded with trial after the jury posed a question during deliberations regarding the

cause of intoxication. “Because the best way to assure a fair trial is to resolve potential

errors while the trial is under way, we generally hold that a claim of error must be raised

during trial in order to be available as an issue on appeal.” Clark v. State, 915 N.E.2d

126, 131 (Ind. 2009).

       Smigielski waived his claim of juror bias because his attorney did not object to the

court’s response to the jury during the trial. “We nevertheless sometimes entertain such

claims under the rubric of ‘fundamental error.’ Fundamental error is an error that makes

                                             5
a fair trial impossible or constitutes clearly blatant violations of basic and elementary

principles of due process presenting an undeniable and substantial potential for harm.” Id.

(quoting Benson v. State, 762 N.E.2d 748, 755 (Ind.2002)).

According to Ind. Code Section 34-36-1-6:

       If, after the jury retires for deliberation:

       (1) there is a disagreement among the jurors as to any part of the
       testimony; or
       (2) the jury desires to be informed as to any point of law arising in
       the case;

       the jury may request the officer to conduct them into court, where
       the information required shall be given in the presence of, or after
       notice to, the parties or the attorneys representing the parties.

       In this case, the jury asked if “under the influence” only included under the

influence of alcohol. The court responded to the jury, “the instructions provide them with

the relevant statutory definition. Which means I am not saying yes and I am not saying

no, tell them to read the instructions.” Tr. p. 117. Smigielski’s defense attorney was

present during this exchange and agreed with the trial court’s response. The jury posed a

reasonable question, and the court responded with a reasonable answer. The jury’s

question did not constitute a fundamental error, or, in fact, any error whatsoever.

                                          Conclusion

       Smigielski’s failure to pass six different sobriety field tests was sufficient evidence

for a reasonable trier of fact to find him guilty of operating a vehicle while intoxicated. A

simple jury question during deliberations and the trial court’s appropriate and agreed

upon response did not constitute fundamental error.


                                                6
      Affirmed.

BAKER, J., and MAY, J., concur.




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