      MEMORANDUM DECISION
                                                                          May 11 2015, 9:31 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
      Timothy J. Lemon
      Knox, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Donald Frazier,                                          May 11, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               75A04-1408-CR-388
              v.                                               Appeal from the Starke Circuit Court
                                                               The Honorable Kim Hall, Judge
      State of Indiana,                                        Cause No. 75C01-1311-FD-199
      Appellee-Plaintiff



      Mathias, Judge.

[1]   Following a jury trial, Donald Frazier (“Frazier”) was convicted in Starke

      Circuit Court of Class D felony operating while intoxicated and Class A

      misdemeanor possession of paraphernalia and sentenced to two years executed

      in the Department of Correction. Frazier appeals and presents two issues for

      our review:




      Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015         Page 1 of 9
              I. Whether the State presented evidence sufficient to support Frazier’s
              operating while intoxicated conviction, and

              II. Whether the sentence imposed by the trial court is inappropriate in
              light of the nature of the offense and the character of the offender.

[2]   We affirm.


                                    Facts and Procedural History

[3]   On October 31, 2013, Officer Kyle Hinds (“Officer Hinds”) was patrolling a

      residential area in Hamlet, Indiana. As he drove, Officer Hinds observed a

      green SUV stopped in the roadway. When Officer Hinds approached the SUV,

      it spun its tires and made a right turn in front of Officer Hinds’s car so suddenly

      that Officer Hinds had to quickly brake to avoid hitting the SUV. Officer Hinds

      activated his lights and initiated a traffic stop of the SUV. He approached the

      SUV, and the driver, later identified as Frazier, rolled down his window.

      Officer Hinds observed the smell of alcohol coming from inside the vehicle, so

      he asked Frazier to step out of the car. As Frazier exited the car, Officer Hinds

      noticed that he was “unsteady on his feet.” Tr. p. 36. Frazier told Officer Hinds

      that he had consumed four or five beers that evening.


[4]   Officer Hinds then administered the horizontal gaze nystagmus field sobriety

      test, which Frazier failed. The officer next administered the walk and turn test,

      which Frazier also failed. Frazier consented to a Breathalyzer test, but Officer

      Hinds was unable to acquire a sufficient sample.


[5]   After Officer Hinds handcuffed Frazier and secured him in the back of his

      squad car, he discovered a six-pack of cold beer in Frazier’s car, with four of the




      Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015   Page 2 of 9
      beer bottles missing, and a plastic drinking straw containing powdery residue.

      Frazier told Officer Hinds that he used the straw to snort Oxycodone, for which

      he had a prescription to treat pain related to his multiple sclerosis. Officer

      Hinds read Frazier a standard implied consent advisement, after which Frazier

      agreed to take a blood draw test. The test results indicated that Frazier’s blood

      alcohol level was .08.

[6]   The same day, the State charged Frazier with Class A misdemeanor possession

      of a paraphernalia and Class D felony operating a vehicle while intoxicated

      with a prior conviction. A jury trial was held on April 23, 2014. The jury found

      Frazier to be guilty of both counts. Frazier’s sentencing hearing was held three

      months later on July 29, 2014. At the hearing, the trial court found the

      following aggravating factors: that Frazier’s criminal history consists largely of

      convictions involving substance abuse; that Frazier has not participated in or

      benefited from substance abuse treatment programs; that Frazier’s criminal

      history and previous sentences have failed to deter him from committing

      additional crimes; and that Frazier had violated the terms of his probation by

      committing the present offense. The trial court found no mitigating

      circumstances. The trial court sentenced Frazier to one year for his Class A

      misdemeanor conviction and three years for his Class D felony conviction, to

      be served concurrently. The court suspended one year of the aggregate sentence

      to probation, for an aggregate sentence of two years.

[7]   Frazier now appeals.




      Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015   Page 3 of 9
                                     I. Sufficiency of the Evidence

[8]    We begin by noting that the State failed to file either a brief or a statement of

       non-involvement. When appellees do not submit a brief, we need not undertake

       the burden of developing an argument on their behalf. Trinity Homes, LLC v.

       Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse if the

       appellant’s brief presents a case of prima facie error. Id. Prima facie error in this

       context is error “at first sight, on first appearance, or on the face of it.” Id.

       (quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)). If an

       appellant does not meet this burden, we will affirm. Id.


[9]    Frazier argues that the State failed to provide sufficient evidence to prove that

       he committed Class D felony operating while intoxicated. When we consider a

       challenge to the sufficiency of evidence to support a conviction, we respect the

       jury’s exclusive province to weigh the evidence, and therefore, neither reweigh

       the evidence nor judge witness credibility. McHenry v. State, 820 N.E.2d 124,

       126 (Ind. 2005). We consider only the probative evidence and reasonable

       inferences supporting the conviction, and “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.”

       Id. at 126 (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000)).


[10]   To convict Frazier of Class D felony operating a vehicle while intoxicated, the

       State was required to prove that Frazier operated a vehicle while intoxicated

       and had “a previous conviction of operating while intoxicated that occurred




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       within the five (5) years immediately preceding” the current charged offense.

       See Indiana Code sections 9-30-5-2(a), -3(a).


[11]   Frazier does not dispute the prior conviction that elevated his offense to a Class

       D felony. However, he does argue that the evidence is insufficient to prove that

       he was intoxicated while operating his vehicle. He states, “[t]he record shows

       that several people observed Mr. Frazier on the day of the stop and stated that

       he was not acting intoxicated or had consumed small amounts of alcohol.”

       Appellant’s Br. at 5. Frazier also challenges the result of his blood test, arguing

       “no evidence was presented to show the differences between a blood draw and

       a certified breath test. It is highly likely that the error rate from the blood draw

       could have put Mr. Frazier’s BAC above the legal limit.” Id. Finally, he

       maintains that the fact that he failed the field sobriety tests administered by

       Officer Hinds was likely due to his multiple sclerosis, not to his alleged

       intoxication.


[12]   At trial, Officer Hinds testified that Frazier’s SUV was stopped in the road for

       no reason and, as he approached Frazier, Frazier cut off the officer by turning

       abruptly in front of him. Officer Hinds also stated that he detected the smell of

       alcohol coming from inside Frazier’s car, that Frazier was unsteady on his feet

       as he exited the vehicle, that Frazier admitted to consuming alcohol, and that

       Frazier failed two field sobriety tests. Officer Hinds discovered a six-pack of

       cold beer in Frazier’s vehicle, with four of the six beers missing. Also, a blood

       test indicated that Frazier’s blood alcohol level was .08.




       Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015   Page 5 of 9
[13]   From all of this evidence, the jury could reasonably infer that Frazier’s thoughts

       and actions were impaired while he was operating his vehicle.1 Cf Minix v. State,

       726 N.E.2d 848, 851 (Ind. Ct. App. 2000), trans. denied. Frazier’s argument

       amounts to a request that we reweigh the evidence, which we will not do. See

       McHenry, 820 N.E.2d at 126. We therefore conclude that the State presented

       sufficient evidence to prove that Frazier operated his vehicle while intoxicated.


                                          II. Inappropriate Sentence

[14]   Frazier also argues that his sentence is inappropriate in light of the nature of the

       offense and the character of the offender. Pursuant to Indiana Appellate Rule

       7(B), 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.” Although

       we may review and revise a sentence, “[t]he principal role of appellate review

       should be to attempt to leaven the outliers, and identify some guiding principles

       for trial courts and those charged with improvement of the sentencing statutes,

       but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State,

       895 N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s

       sentencing decision, both because Rule 7(B) requires us to give due

       consideration to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Trainor v.



       1
         Indiana Code section 9-13-2-86 defines “intoxicated” as “under the influence of: (1) alcohol; . . . so that
       there is an impaired condition of thought and action and the loss of normal control of a person's faculties.”




       Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015                  Page 6 of 9
       State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart

       v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks

       omitted).


[15]   When we review the appropriateness of a sentence, we consider “the culpability

       of the defendant, the severity of the crime, the damage done to others, and

       myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d

       at 1224. The defendant has the “burden to persuade us that the sentence

       imposed by the trial court is inappropriate.” Shell v. State, 927 N.E.2d 413, 422

       (Ind. Ct. App. 2010).

[16]   Frazier argues that his three-year maximum2 sentence is inappropriate because

       “there was nothing particularly egregious about his conduct above and beyond

       what generally is necessary to establish Class D felony operating a Vehicle

       while intoxicated with a prior conviction.” Appellant’s Br. at 7. See also

       Buchanan v. State, 767 N.E.2d 967 (Ind. 2002) (principle that maximum possible

       sentences are generally most appropriate for the worst offenders does not

       require a determination of whether a worse offender could be imagined, but

       refers generally to the class of offenses and offenders that warrant the maximum

       punishment). He also contends that the trial court erred in finding his “prior

       record consist[ing] of mainly prior substance abuse related convictions” to be an



       2
         See Indiana Code section 35-50-2-7(a) (providing that a person who commits a Class D felony “shall be
       imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being
       one and one-half (1 ½ ) years.”).




       Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015                Page 7 of 9
       aggravating circumstance and that, in fact, the trial court should have found his

       “history of alcohol and chemical dependence” to be a mitigating factor. Id. at 8-

       9.


[17]   Contrary to his claims, Frazier’s sentence is well-supported by his extensive

       criminal history, which consists of seven misdemeanors and four felonies,

       including convictions for battery resulting in bodily injury, possession of

       marijuana, maintaining a common nuisance, operating while intoxicated, and

       resisting law enforcement. Frazier attempts to minimize his criminal history by

       arguing that most of his prior convictions were merely substance abuse-related.

       However, the trial court’s use of these convictions as aggravating factors was

       certainly not inappropriate, given the nature of Frazier’s present offense. In

       sum, with respect to alcohol-related crimes, Frazier is among the “worst

       offenders.” Buchanan, 767 N.E.2d at 973.


[18]   In addition, Frazier’s probation was revoked in six prior cases, and he was on

       probation at the time of the current offense. In light of Frazier’s failed attempts

       at rehabilitation and his long record of alcohol-related offenses, Frazier has not

       demonstrated that an executed two-year sentence plus one year of probation is

       inappropriate.


                                                  Conclusion

[19]   The State presented sufficient evidence to support Frazier’s Class D felony

       operating while intoxicated conviction and Frazier’s three-year sentence with




       Court of Appeals of Indiana | Memorandum Decision 75A04-1408-CR-388 | May 11, 2015   Page 8 of 9
       one year suspended was not inappropriate in light of the nature of the offense

       and the character of the offender.

[20]   Affirmed.


       May, J., and Robb, J., concur.




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