MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                           Mar 16 2018, 10:23 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Zachary J. Stock                                         Curtis T. Hill, Jr.
Zachary J. Stock, Attorney at Law, P.C.                  Attorney General of Indiana
Indianapolis, Indiana
                                                         Lee M. Stoy, Jr.
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kristi J. Line,                                          March 16, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         32A01-1709-CR-2234
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Stephenie LeMay-
Appellee-Plaintiff.                                      Luken, Judge
                                                         Trial Court Cause No.
                                                         32D05-1702-CM-269



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018        Page 1 of 12
[1]   Kristi J. Line appeals her conviction for operating a vehicle while intoxicated as

      a class A misdemeanor. She raises one issue which we revise and restate as

      whether the evidence is sufficient to sustain her conviction. We affirm.


                                      Facts and Procedural History

[2]   On February 19, 2017, Danville Police Sergeant Chase Wilson was training

      Officer Anthony Southern and they observed a vehicle go over “to the fog line

      and then went back into the lane” and turn south on County Road 300 East.

      Transcript Volume II at 7. After noticing the vehicle accelerate, Sergeant

      Wilson turned on his radar, which indicated that the vehicle was traveling at

      seventy miles per hour, and he confirmed that reading by pacing the vehicle.

      Sergeant Wilson activated the red and blue lights of his fully-marked police

      vehicle, and the vehicle driven by Line “started to go off to the side of the road

      she drove down into the ditch and then back up out of the ditch . . . and parked

      on the side of the road.” Id. at 8.


[3]   Sergeant Wilson approached Line’s vehicle and observed that she had her

      window down two inches. Sergeant Wilson asked Line to lower her window,

      and Line was very argumentative and stated that she was afraid because she did

      not know that he was a police officer. Sergeant Wilson stepped out from

      behind the window to show her that he was in full uniform. At some point,

      Hendricks County Sheriff’s Deputy Robert Lenover arrived at the scene. Line

      rolled the window down, and Sergeant Wilson asked her for her driver’s license

      and registration. Line took more time to retrieve her driver’s license and

      registration than one “normally would.” Id. at 9. Sergeant Wilson could smell
      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 2 of 12
      an odor of alcohol emanating from the vehicle and asked Line to step out of the

      vehicle. Line was argumentative and said she did not want to step out of the

      car, but eventually agreed and stepped out of the vehicle.


[4]   Sergeant Wilson asked standard questions before conducting field sobriety tests,

      and Line advised him that she had a back and neck injury and fibromyalgia

      which would prevent her from participating in some of the testing. Sergeant

      Wilson conducted a horizontal gaze nystagmus test, and Line “had six (6) out

      of six (6) possible indicators” on the test. Id. at 11. Sergeant Wilson advised

      her of Indiana complied consent, and Line stated she wanted to go back to her

      vehicle and sit until she was “ok to go.” Id. Sergeant Wilson told her that she

      had to give him a yes or no answer, and Line was argumentative. Sergeant

      Wilson eventually placed Line in handcuffs with Deputy Lenover’s assistance.

      Sergeant Wilson obtained a warrant for a blood draw, which was later

      performed at a hospital.1


[5]   The State charged Line with operating a vehicle while intoxicated and resisting

      law enforcement as class A misdemeanors. On August 30, 2017, the court held

      a bench trial. When asked for the speed limit in the area where he stopped

      Line, Sergeant Wilson answered: “Either forty-five (45) or fifty (50), I can’t

      remember exactly what it is on that portion of the county road. It’s not seventy

      (70) miles an hour.” Id. at 8. When asked on cross-examination about Line’s



      1
       The court admitted a toxicology report which indicated an analyte of ethanol and a result of “0.080 + 0.004
      g/100mL,” State’s Exhibit 1, as well as a toxicology report indicating a positive finding of “Dextro / Levo
      Methorphan,” with a result of “18 +4 ng/mL.” State’s Exhibit 2.

      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018           Page 3 of 12
      vehicle leaving the lane of travel, Sergeant Wilson testified that the tires on

      Line’s vehicle were on the fog line, but did not cross the fog line. Defense

      counsel asked Sergeant Wilson to tell her at what time Line “went left of

      center,” and Sergeant Wilson answered: “As she traveled south on county road

      three hundred (300) east south of the airport. I can’t give you a specific time as

      in hours and minutes.” Id. at 15.


[6]   After the State rested, the defense presented the testimony of Penny Horvath

      who testified that she was out with Line that day, that an officer followed her

      vehicle for awhile before moving behind Line’s vehicle, and that she could not

      observe the officer’s behavior with regard to Line’s vehicle. On cross-

      examination, Horvath testified that she and Line were at the Alibi, a bar.

      When asked if she knew if Line was drinking, Horvath stated: “She had one (1)

      that I know of,” and clarified that she was referring to beer. Id. at 26. On

      redirect examination, Horvath testified that she was with Line about three

      hours that evening and that Line had one beer and water.


[7]   Line testified that she had one beer at the Alibi and that an officer followed her

      for five minutes, ran up to her bumper, and then backed off at least four or five

      times. She stated that she was very scared and sped up because she thought

      that someone was trying to run her off the road. She testified that she did not

      realize it was an officer “until the lights came on.” Id. at 30. She testified that

      they “did a breathalyzer” and that Officer Wilson “had his breathalyzer,

      dropped it on the ground and it broke into three (3) or four (4) pieces.” Id. at

      33. She testified that she did not submit to a blood draw at first because she had

      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 4 of 12
      no idea what was going on. On cross-examination, Line testified that, prior to

      her beer at the Alibi bar, she had a couple of sips of beer at Dare Devils in

      Speedway at 6:00 and “another half beer” around 8:00 or 8:30 at her nephew’s

      house. She also testified that she pulled her vehicle over without incident.


[8]   The court found Line not guilty of resisting law enforcement and guilty of

      operating a vehicle while intoxicated while endangering a person as a class A

      misdemeanor. Specifically, the court held:


              [A]s to count one (1) I am going to find that the speed of the
              defendant was seventy (70) um we haven’t had a firm testimony
              as to the speed limit, so even if you believe the speed limit was
              the top speed limit on that particular type of road which was
              potentially fifty (50) to fifty-five (55) she was still going over the
              speed limit with alcohol in her system. Based on count one (1) so
              I find that is endangerment also her vehicle, officer, officer
              testified t[h]rough the Danville Police Department testified that
              she drove her vehicle kind of into the ditch and to back out and
              that is endangerment. So, I’m going to find guilty to count one
              (1) as an a misdemeanor operating while intoxicated.


      Id. at 42. The court sentenced Line to 180 days at the Hendricks County Jail

      with 178 days suspended to probation.


                                                  Discussion

[9]   The issue is whether the evidence is sufficient to sustain Line’s conviction for

      operating a vehicle while intoxicated as a class A misdemeanor. When

      reviewing the sufficiency of the evidence to support a conviction, we must

      consider only the probative evidence and reasonable inferences supporting the


      Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 5 of 12
       verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

       witness credibility or reweigh the evidence. Id. We consider conflicting

       evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

       unless “no reasonable fact-finder could find the elements of the crime proven

       beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270

       (Ind. 2000)). It is not necessary that the evidence overcome every reasonable

       hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

       may reasonably be drawn from it to support the verdict. Id.


[10]   The offense of operating a vehicle while intoxicated is governed by Ind. Code §

       9-30-5-2, which provides that “a person who operates a vehicle while

       intoxicated commits a Class C misdemeanor,” but “[a]n offense . . . is a Class A

       misdemeanor if the person operates a vehicle in a manner that endangers a

       person.”


[11]   Line challenges only the element that she endangered a person. She argues that

       there is little more than proof of alcohol consumption being used to prove

       endangerment and this evidence is not sufficient. She asserts that an

       intoxicated driver does not endanger a person simply by violating any portion

       of the traffic code and that intoxication plus imperfect driving does not equal

       endangerment. The State argues that it presented sufficient evidence to show

       that Line endangered a person.


[12]   Mere intoxication is not sufficient to support a conviction of operating a vehicle

       while intoxicated as a class A misdemeanor. Outlaw v. State, 918 N.E.2d 379,


       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 6 of 12
       382 (Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind. 2010). “The

       element of endangerment can be established by evidence showing that the

       defendant’s condition or operating manner could have endangered any person,

       including the public, the police, or the defendant.” Id. at 381. “Endangerment

       does not require that a person other than the defendant be in the path of the

       defendant’s vehicle or in the same area to obtain a conviction.” Id.


[13]   The record reveals that Line drove her vehicle over “to the fog line and then

       went back into the lane.” Transcript Volume II at 7. Sergeant Wilson

       determined that Line was traveling seventy miles per hour in an area where the

       speed limit was either forty-five or fifty miles per hour. Defense counsel asked

       Sergeant Wilson to tell her at what time Line “went left of center,” and

       Sergeant Wilson answered: “As she traveled south on county road three

       hundred (300) east south of the airport.” Id. at 15. After activating his red and

       blue lights, Sergeant Wilson observed Line’s vehicle start to go off to the side of

       the road and then “she drove down into the ditch and then back up out of the

       ditch . . . and parked on the side of the road.” Id. at 8.


[14]   Based upon the record, we cannot say that the inferences made by the fact

       finder were unreasonable. We conclude that evidence of probative value exists

       from which the trial court could have found Line guilty beyond a reasonable

       doubt of operating a vehicle while intoxicated as a class A misdemeanor. See

       Staley v. State, 895 N.E.2d 1245, 1251 (Ind. Ct. App. 2008) (observing that the

       defendant’s intoxication resulted in unsafe driving practices and that the

       defendant was observed driving fifty-five miles per hour in a forty-mile-per-hour

       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 7 of 12
       zone and driving at night without his lights on, and concluding that the jury

       was presented with sufficient evidence of probative value that the defendant

       was endangering the public, the police, or himself), trans. denied; Boyd v. State,

       519 N.E.2d 182, 184 (Ind. Ct. App. 1988) (observing that the defendant was

       driving fifty-four miles per hour at night in a thirty-mile-per-hour zone and that

       the defendant’s speeding demonstrated impaired judgment and ability of such a

       nature as to endanger others).


                                                   Conclusion

[15]   For the foregoing reasons, we affirm Line’s conviction.


[16]   Affirmed.


       Baker, J., concurs.


       Riley, J., concurs in result with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 8 of 12
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Kristi J. Line,                                          Court of Appeals Case No.
                                                                32A01-1709-CR-2234
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Riley, Judge, concurring in result.


[17]   While I ultimately concur in result, I write separately to address my concerns

       with the police officer’s conduct. There is no dispute that Line, whose blood

       alcohol level registered 0.08, was traveling in excess of the speed limit, and this

       court has previously established that excessive speed is sufficient to establish the

       endangerment element of operating while intoxicated in a manner that

       endangers a person. See Vanderlinden v. State, 918 N.E.2d 642, 646 (Ind. Ct.




       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 9 of 12
       App. 2009), trans. denied. That said, I firmly believe that the actions of Sergeant

       Chase Wilson (Sergeant Wilson) directly contributed to the endangerment.


[18]   Sergeant Wilson, who was training a new police officer, set his sights on

       patrons leaving the Alibi Bar. Line’s friend, Penny Horvath (Horvath), left the

       bar at the same time as Line. As Horvath drove, she noticed that she was being

       followed by a Danville police car. The police officer “kept getting on [her]

       bumper and backing off,” making Horvath “nervous.” (Tr. Vol. II, pp. 24-25).

       After several minutes, the police officer “sped up and got in front of [Horvath],”

       to follow Line’s vehicle as Line turned onto County Road 300 East. (Tr. Vol.

       II, p. 24).


[19]   Sergeant Wilson testified that he began following Line after observing her

       vehicle “leave its lane of travel,” but he subsequently clarified that Line’s tires

       touched the fog line but did not cross it. (Tr. Vol. II, p. 6). As Line drove down

       the dark road, Sergeant Wilson, by his own testimony, “pac[ed]” her vehicle.

       (Tr. Vol. II, p. 7). Although Sergeant Wilson claimed he only began pacing to

       confirm the speed indicated by his radar, an inference can be made that he had

       been tailing Line’s vehicle in the same way that he had paced Horvath’s vehicle

       minutes earlier. In fact, Line similarly testified that the vehicle behind her

       repeatedly “was running up on [her] bumper and backing off” for several

       minutes. (Tr. Vol. II, p. 30). Unaware that she was being followed by a police

       vehicle, Line “thought that someone was trying to run [her] off the road and so

       [she] sped up to get away from them. And [she] really thought [she] was either

       going to die or be hurt or maybe even raped by this person that was running up

       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 10 of 12
       on [her] bumper.” (Tr. Vol. II, p. 30). Sergeant Wilson engaged in this driving

       technique for “a good five (5) minutes” before he activated the lights on his

       vehicle and initiated the traffic stop. (Tr. Vol. II, p. 30).


[20]   At that point, Sergeant Wilson stated that Line “drove down into the ditch and

       then back up out of the ditch um and parked on the side of the road.” (Tr. Vol.

       II, p. 8). Mindful of the trial court’s discretion as to finding credibility in

       Sergeant Wilson’s claim that Line somehow drove into a ditch and immediately

       drove back out with ease, I nevertheless point out that Sergeant Wilson also

       testified that “[t]he county road right there is pretty narrow. There’s no

       shoulder.” (Tr. Vol. II, p. 10). Thus, to pull over for a police vehicle would

       necessarily require leaving the roadway to some extent. When Sergeant Wilson

       approached Line’s window, she rolled it down a few inches and informed him

       that “she was afraid” and “didn’t know that [he] was a police officer.” (Tr. Vol.

       II, p. 9).


[21]   When all of the evidence is considered together, including the fact that Sergeant

       Wilson’s body camera stopped working just prior to the incident with Line, it

       appears that Sergeant Wilson created a situation that placed Line in substantial

       fear for her safety. If Sergeant Wilson’s radar had already confirmed Line’s

       excessive speed, and if Line was really weaving across her lane of travel as

       Sergeant Wilson purportedly observed, he could have activated his lights at that

       point and initiated the stop. Instead, with his status as a police officer obscured

       by the darkness, he followed her in a manner that, reasonably, caused her to

       believe that she was about to be victimized. Although the State technically

       Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 11 of 12
established the necessary elements to support Line’s conviction for a Class A

misdemeanor, I am truly troubled by the police officer’s actions in this case.




Court of Appeals of Indiana | Memorandum Decision 32A01-1709-CR-2234 | March 16, 2018   Page 12 of 12
