Opinion
23A-CR-2899
11-19-2024
Omar Mohamed Umiye, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT CLIFFORD M. ROBINSON LAW OFFICE OF CLIFFORD M. ROBINSON, LLC RENSSELAER, INDIANA ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL CATHERINE BRIZZI DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Jasper Circuit Court The Honorable John D. Potter, Judge Trial Court Cause No. 37C01-2212-F4-1073
ATTORNEY FOR APPELLANT CLIFFORD M. ROBINSON LAW OFFICE OF CLIFFORD M. ROBINSON, LLC RENSSELAER, INDIANA
ATTORNEYS FOR APPELLEE THEODORE E. ROKITA ATTORNEY GENERAL CATHERINE BRIZZI DEPUTY ATTORNEY GENERAL INDIANAPOLIS, INDIANA
MEMORANDUM DECISION
Vaidik, Judge
Case Summary
[¶1] Omar Mohamed Umiye appeals his convictions for Level 6 felony operating a vehicle while intoxicated and Level 6 felony criminal recklessness, arguing the evidence is insufficient to support them. We affirm.
Facts and Procedural History
[¶2] One afternoon in December 2022, Umiye, a commercial truck driver, was driving a semi-truck north on I-65. Umiye had a co-driver with him whom he was training. By the time they reached Jasper County, Umiye had been driving between thirteen and sixteen hours, even though he's only allowed to drive eleven hours in a day. Zachary Barrett was also driving north on I-65 in the left lane and came upon Umiye's truck, which appeared to be stopped in the right lane without its hazard or brake lights on. Another semi was in the right lane behind Umiye. As that semi approached Umiye's truck, it swerved into the left lane to avoid him, causing it to collide with Barrett's pickup truck and running Barrett off the road. The driver of the other semi couldn't completely avoid Umiye's truck and hit the back of the trailer as he was swerving into the left lane.
[¶3] Indiana State Police Master Trooper Frederick Trammel responded to the accident. He saw Umiye walking around his truck and noticed that he was "a little unsteady on his feet" and "not walking in a straight line." Tr. Vol. II p. 83. As Trooper Trammel approached Umiye, Umiye was leaning against the truck. Trooper Trammel saw that Umiye's eyes were bloodshot and glassy and that he was "staring off and focusing really hard somewhere else." Id. at 85. Trooper Trammel asked Umiye if he needed to be checked out by an EMT, and Umiye said he did. He told Trooper Trammel he was injured and pointed to his back. Umiye's speech "was a little bit slurred and kind of more methodical, like more purposeful." Id. at 90. Additionally, his eyes were "dilated fully," which was unusual because it was daytime. Id. at 91.
[¶4] Suspecting that Umiye could be intoxicated, Trooper Trammel performed the horizontal gaze nystagmus (HGN) test. Umiye demonstrated all six cues of intoxication during the test. Trooper Trammel opted not to perform any other field-sobriety tests because those require the subject to be on their feet, and since Umiye had said he was injured, the other tests wouldn't have been accurate.
[¶5] While Umiye was being treated by EMTs, Trooper Trammel performed a commercial-vehicle inspection to ensure the truck was in compliance with federal regulations. As he went to enter the truck, he saw "leafy particles" on the driver's seat. Id. at 107. Trooper Trammel kept looking around the truck and found a plastic bag hanging on the console "within arm's length of the driver" that contained more of the leafy substance he'd found on the seat, which he suspected to be "khat." Id. at 109. The substance was later tested and found to contain cathinone, the controlled substance in khat. Umiye consented to a blood draw, and his blood sample was sent to the Indiana State Department of Toxicology for testing.
[¶6] The State charged Umiye with Level 6 felony operating a vehicle while intoxicated and Level 6 felony criminal recklessness. A jury trial was set for October 31, 2023.
Umiye was also charged with and convicted of Class A misdemeanor possession of a controlled substance, but he does not challenge this conviction on appeal.
[¶7] Around late August or early September 2023, Trooper Trammel learned that the Department of Toxicology tested Umiye's blood sample in July for "normal, routine" drugs and none were detected, but the Department isn't able to test for cathinone. Id. at 204. He was informed that there is a lab in Ohio that tests for cathinone, but the Indiana State Police don't have an account with that lab, and they'd have to set up an account before they could send the blood sample for testing. Trooper Trammel called the Ohio lab and was advised that getting an account approved takes up to four weeks, and then after the sample is sent for testing, it would take another four weeks to get results. This additional test would cost $600. Given that trial was set for October 31, Umiye's blood sample was not tested further.
[¶8] At trial, several videos were played for the jury: dashboard-camera footage from the semi that was behind Umiye's truck, Trooper Trammel's body-camera footage from the scene, and dashboard-camera footage from the officer who took Umiye to the hospital for the blood draw. The jury found Umiye guilty as charged, and the trial court sentenced him to an aggregate term of 546 days.
[¶9] Umiye now appeals.
Discussion and Decision
[¶10] Umiye contends the evidence is insufficient to support his convictions for operating a vehicle while intoxicated and criminal recklessness. When reviewing sufficiency-of-the-evidence claims, we neither reweigh the evidence nor judge witness credibility. Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015). We consider only the evidence supporting the verdict and any reasonable inferences that can be drawn from it. Id. We will affirm a conviction if there is substantial evidence of probative value to support each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Id.
[¶11] To convict Umiye of operating a vehicle while intoxicated as charged here, the State had to prove that he operated a vehicle while intoxicated in a manner that endangered a person. Ind. Code § 9-30-5-2(b); Appellant's App. Vol. II p. 21. "'Intoxicated' means under the influence" such that "there is an impaired condition of thought and action and the loss of normal control of a person's faculties." I.C. § 9-13-2-86.
[¶12] Umiye contends the evidence is insufficient to establish that he was intoxicated. Most of his argument centers on the fact that his blood sample wasn't tested for cathinone. But blood test results are not necessary to support a conviction for operating a vehicle while intoxicated under Indiana Code section 9-30-5-2. Combs v. State, 895 N.E.2d 1252, 1258-59 (Ind.Ct.App. 2008), trans. denied. Rather, under this statute, "the State may prove intoxication by a showing of impairment." Id. at 1259 (quotation omitted). Impairment can be established by evidence of the following: (1) the consumption of a significant amount of an intoxicant; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of an intoxicant on the breath; (5) unsteady balance; (6) failure of fieldsobriety tests; and (7) slurred speech. Id.; Awbrey v. State, 191 N.E.3d 925, 929 (Ind.Ct.App. 2022).
Umiye also contends that "[t]he State committed fundamental error by failing to test [his] blood" for cathinone, which he claims denied him due process. Appellant's Br. p. 16. This argument fails for several reasons. First, we review for potential fundamental error by the trial court, not the State, and Umiye doesn't identify any action that the trial court could or should have taken regarding his blood sample. See Ryan v. State, 9 N.E.3d 663, 668 (Ind. 2014) ("[A] finding of fundamental error essentially means that the trial judge erred by not acting when he or she should have."), reh'g denied. Additionally, Umiye didn't take any action in the trial court regarding the sample, such as sending it for testing himself or moving for a continuance so that the State would have time to get testing done at the lab in Ohio. Moreover, Umiye makes this purported due-process argument under the standard for failure to preserve evidence, but he doesn't allege that the State failed to preserve his blood sample. There is no indication that the sample was destroyed, so this standard does not apply.
[¶13] There is substantial evidence of impairment here. When Trooper Trammel first saw Umiye, he was unsteady on his feet and not walking in a straight line. As Trooper Trammel began talking to him, Umiye was leaning against the truck and his speech was slurred and methodical. His eyes were glassy and bloodshot, and his pupils were fully dilated even though it was the middle of the day. When Trooper Trammel performed the HGN test, Umiye demonstrated all six cues of intoxication. Umiye questions the reliability of the HGN test, but this is an invitation for us to reweigh the evidence, which we will not do. See Willis, 27 N.E.3d at 1066. Trooper Trammel also found khat on the driver's seat of the truck and in a bag within arm's reach of the driver's seat. And the jury not only heard Trooper Trammel's testimony about his encounter with Umiye but also saw body-camera footage of the entire interaction. The State presented sufficient evidence to support Umiye's conviction for operating a vehicle while intoxicated.
[¶14] Umiye also challenges the sufficiency of the evidence supporting his criminalrecklessness conviction. To convict Umiye of criminal recklessness as charged here, the State had to prove that he recklessly, knowingly, or intentionally, with a deadly weapon, performed an act that created a substantial risk of bodily injury to another person. I.C. § 35-42-2-2(b)(1)(A); Appellant's App. Vol. II p. 20.
[¶15] Umiye contends "the only 'recklessness' that [he] engaged in was being allegedly intoxicated." Appellant's Br. p. 21. This is simply untrue. Umiye stopped his truck in a traffic lane on I-65 during the middle of the day when there was moderate traffic. By his own admission, he didn't have his hazard or brake lights on, see Tr. Vol. II p. 183, so there was no warning to other drivers that he was stopped. This created a substantial risk of bodily injury to Umiye, his co-driver, and other drivers and passengers on I-65. And "[a]n automobile may be considered a 'deadly weapon' given appropriate circumstances," DeWhitt v. State, 829 N.E.2d 1055, 1064 (Ind.Ct.App. 2005), reh'g denied, which Umiye does not dispute (or address at all). The evidence is sufficient to support Umiye's conviction for criminal recklessness.
[¶16] Affirmed.
Weissmann, J., and Foley, J., concur.