MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                            Oct 29 2018, 9:20 am

the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                        Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David M. Payne                                           Curtis T. Hill, Jr.
Ryan & Payne                                             Attorney General of Indiana
Marion, Indiana
                                                         J.T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

David A. Kinder,                                         October 29, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-654
        v.                                               Appeal from the Grant Superior
                                                         Court
State of Indiana,                                        The Honorable Warren Haas,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         27D03-1704-CM-51



Friedlander, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018                  Page 1 of 4
[1]   A few minutes after midnight on April 12, 2017, Indiana State Police Trooper

      Steven Glass was patrolling Grant County when he began following a vehicle

      after the driver failed to signal while pulling out of a gas station. The vehicle,

      driven by Kinder, wove back and forth between the center line and fog line, and

      Kinder failed to timely signal before making an abrupt right turn. Trooper

      Glass, a field sobriety instructor, initiated a traffic stop.


[2]   Upon approaching the vehicle, Trooper Glass began talking to Kinder and

      noticed Kinder’s slurred speech and glassy, bloodshot eyes. Kinder was

      lethargic and fumbled through his wallet to retrieve his driver’s license.

      Trooper Glass detected the odor of alcoholic beverage emanating from the

      vehicle and asked Kinder if he had been drinking, to which Kinder responded

      that he had had a couple of beers thirty minutes before. Suspecting impairment,

      Trooper Glass asked Kinder to exit the vehicle and administered three field

      sobriety tests (“FSTs”). Kinder failed all three FSTs and had difficulty

      maintaining his balance at times.


[3]   Following the failed FSTs, Trooper Glass attempted to administer a portable

      breath test but was unable to do so due to discovering marijuana in Kinder’s

      mouth. Two additional FSTs were then administered, both of which Kinder

      also failed. Kinder was transported to the Grant County Jail, where a certified

      breath test determined his blood alcohol content (“BAC”) to be 0.074.


[4]   On April 21, the State charged Kinder with one count of Class C misdemeanor

      operating a vehicle while intoxicated. Following a bench trial held on February


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018   Page 2 of 4
      28, 2018, the trial court found Kinder guilty as charged and sentenced him to

      sixty days of incarceration, with two days executed and the remainder

      suspended to probation.


[5]   Kinder contends that the State failed to produce sufficient evidence to establish

      that he was intoxicated while operating his vehicle. When reviewing the

      sufficiency of the evidence, we do not reweigh evidence or assess witness

      credibility. Fields v. State, 888 N.E.2d 304 (Ind. Ct. App. 2008). We consider

      the evidence most favorable to the factfinder’s decision and the reasonable

      inferences drawn therefrom. Id. We will affirm if there is probative evidence

      from which a reasonable factfinder could have found the defendant guilty

      beyond a reasonable doubt. Id.


[6]   “Intoxicated” is defined as being “under the influence of alcohol so that there is

      an impaired condition of thought and action and the loss of normal control of a

      person’s faculties.” Ind. Code § 9-13-2-86(1) (2013). Proof of intoxication may

      be established by showing impairment and does not require proof of any

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

      Impairment can be established by evidence showing (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 FSTs, or (7) slurred speech. Id.


[7]   Kinder does not contest that he was operating the vehicle, only that he was

      intoxicated while doing so. We conclude that there was ample evidence of


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018   Page 3 of 4
      impairment from which the trial court could have reasonably found beyond a

      reasonable doubt that Kinder was intoxicated. Kinder admitted that he had

      been drinking, and Trooper Glass detected the odor of alcoholic beverage

      coming from inside the vehicle. Kinder’s eyes were bloodshot and his speech

      was slurred. Kinder’s poor manual dexterity, as he fumbled through his wallet

      to retrieve his driver’s license, displayed impaired reflexes. Finally, Kinder

      failed all five FSTs and had difficulty maintaining his balance while they were

      administered. Kinder argues that the proof of intoxication was insufficient by

      pointing to the fact that his BAC was below the 0.08 legal limit as set forth in

      Indiana Code section 9-30-5-1(a)(2) (2001), which provides that “[a] person

      who operates a vehicle with an alcohol concentration equivalent to at least

      eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15)

      gram of alcohol per two hundred ten (210) liters of the person’s breath commits

      a Class C misdemeanor.” Kinder, however, was not charged under Indiana

      Code section 9-30-5-1, and we have previously noted that proof of intoxication

      does not require proof of BAC for the offense of which Kinder was convicted.

      See Ballinger, 717 N.E.2d 939. Kinder has failed to establish that the State

      produced insufficient evidence to support the trial court’s determination that he

      was intoxicated while operating a vehicle.


[8]   Judgment affirmed.


      Riley, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-654 | October 29, 2018   Page 4 of 4
