Opinion
24A-CR-1582
11-21-2024
Thomas Michael Freeman, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, J.T. Whitehead 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Jefferson Superior Court The Honorable Carl H. Taul, Senior Judge Trial Court Cause No. 39D01-2303-CM-363
ATTORNEY FOR APPELLANT R. Patrick Magrath Alcorn Sage Schwartz & Magrath, LLP Madison, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana, J.T. Whitehead Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Tavitas, Judge.
Case Summary
[¶1] Thomas Michael Freeman was convicted of operating a vehicle while intoxicated ("OVWI") endangering a person, a Class A misdemeanor. Freeman appeals and argues that the evidence is insufficient to support his conviction. We disagree and, accordingly, affirm.
Issue
[¶2] Freeman presents one issue: whether the State presented sufficient evidence to establish that Freeman was intoxicated when he drove his vehicle.
Facts
[¶3] On the evening of March 22, 2023, Deputy James Richards of the Jefferson County Sheriff's Department was driving his patrol car home after work when he saw a black pickup truck approaching in the opposite direction. Although it was dark, the truck did not have its headlights on. Deputy Richards also heard a "grinding, crunching" noise as the truck passed him. Tr. Vol. II p. 7. Deputy Richards looked in his rearview mirror and saw the truck make a "wide hard" left turn into a parking lot without signaling. Id. Deputy Richards then activated his emergency lights, turned around, and pursued the truck.
[¶4] Deputy Richards found the truck in the parking lot. He immediately noticed that one of the front tires of the truck was missing, and the truck had been riding on only the rim of the wheel. A man, later identified as Freeman, exited the truck and started walking away from the vehicle. Deputy Richards ordered Freeman to return and walk toward the deputy's car. Freeman ignored the command and continued to walk away. Deputy Richards then gave "more stern commands" for Freeman to return, and Freeman came to the deputy's car. Id. at 9. Freeman, however, was "irritable" and "somewhat agitated." Id.
[¶5] Freeman was unsteady as he walked toward Deputy Richards and swayed "to and fro." Id. at 10. Deputy Richards conducted a pat-down of Freeman and noticed the odor of alcohol emanating from his person. Freeman's speech was slow and slurred, and his eyes were red, glossy, and droopy. Freeman was also unsteady as he stood, and his pants were unzipped. Due to these signs of intoxication, Deputy Richards decided to conduct field sobriety tests. Freeman showed four of the six clues for the horizontal gaze nystagmus ("HGN") test; he showed three of eight clues for the walk-and-turn test by turning improperly and using his arms for balance; and he swayed during the one-leg stand test. Deputy Richards determined that all three tests indicated intoxication.
[¶6] Deputy Troy Hawkins arrived on the scene to assist Deputy Richards. Deputy Hawkins searched Freeman's truck and found seven small bottles of fireball liquor-three empty and four still full. Deputy Richards read Freeman the implied consent law, but Freeman refused to consent to a breath test. Deputy Richards then sought and obtained a warrant to draw Freeman's blood. Hospital personnel conducted the blood draw, and Deputy Richards submitted the blood to the Indiana State Police Laboratory. The results of the test showed that Freeman's alcohol concentration equivalent ("ACE") was 0.05.
[¶7] The State charged Freeman on March 23, 2023, with one count of OVWI endangering a person, a Class A misdemeanor, and one count of OVWI, a Class C misdemeanor. A bench trial was held on June 5, 2024, and the trial court found Freeman guilty of the Class A misdemeanor. The Class C misdemeanor was dismissed. The trial court sentenced Freeman to one year of incarceration. Freeman now appeals.
Discussion and Decision
[¶8] Freeman claims that the State failed to present sufficient evidence to support his conviction for OVWI endangering a person. "Claims of insufficient evidence 'warrant a deferential standard, in which we neither reweigh the evidence nor judge witness credibility.'" Stubbers v. State, 190 N.E.3d 424, 429 (Ind.Ct.App. 2022) (quoting Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020)), trans. denied. On appeal, "[w]e consider only the evidence supporting the judgment and any reasonable inferences drawn from that evidence." Id. (citing Powell, 151 N.E.3d at 262). "'We will affirm a conviction if there is substantial evidence of probative value that would lead a reasonable trier of fact to conclude that the defendant was guilty beyond a reasonable doubt,'" and we will affirm a conviction "'unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.'" Id. (quoting Powell, 151 N.E.3d at 262). It is not necessary that the evidence overcome every reasonable hypothesis of innocence; instead, the evidence is sufficient if an inference may reasonably be drawn from it to support the verdict. Id. (citing Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
[¶9] To convict Freeman, the State had to prove beyond a reasonable doubt that he operated a vehicle while intoxicated in a manner that endangers a person. Ind. Code § 9-30-5-2(b). Freeman claims only that the State failed to prove that he was intoxicated. We disagree.
[¶10] "Intoxicated" is defined by statute to mean "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. Such impairment can be established by evidence of: "'(1) the consumption of a significant amount 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 field sobriety tests; and (7) slurred speech.'" Naas v. State, 993 N.E.2d 1151, 1153 (Ind.Ct.App. 2013) (quoting A.V v. State, 918 N.E.2d 642, 644 (Ind.Ct.App. 2009), trans. denied).
[¶11] Here, Freeman failed several field sobriety tests; he had bloodshot eyes; he was unsteady on his feet and had impaired reflexes; his eyes were glassy and bloodshot; his speech was slurred; and he had the odor of alcohol on his breath. Empty bottles of alcohol were found in his vehicle, giving rise to a reasonable inference that he had recently consumed the alcohol. Freeman was also driving without his headlights on, his truck was riding on the rim of one of the wheels, and he took a wide, hard turn into a parking lot. All of this is evidence of Freeman's intoxication. Freeman does not deny any of this. Instead, he notes that the results of his blood draw showed that his ACE was only 0.05, which is below the statutory threshold of 0.08 set forth in Indiana Code Section 9-30-5-1.
Freeman argues that Deputy Richards' testimony is questionable because the deputy violated the Sheriff's Department's policies by failing to record his interaction with Freeman and because no other witness corroborated Deputy Richards' testimony. These are merely requests that we reweigh the evidence and judge witness credibility, which we may not do. Stubbers, 190 N.E.3d at 429 (citing Powell, 151 N.E.3d at 262).
[¶12] Freeman, however, was not charged with operating a vehicle with an ACE of at least 0.08 under Indiana Code Section 9-30-5-1; instead, he was charged with OVWI under Indiana Code Section 9-30-5-2, which requires only that a person operate a vehicle while intoxicated. Accordingly, the fact that his ACE was under 0.08 was not fatal to the State's case. See Lehman v. State, 203 N.E.3d 1097, 1104 (Ind.Ct.App. 2023) (noting that the State is not required to show that the defendant had a particular blood alcohol level to prove that the defendant is intoxicated); Awbrey v. State, 191 N.E.3d 925, 929 (Ind.Ct.App. 2022) (noting that, when alcohol is the intoxicant, the State must prove the defendant was impaired regardless of his blood alcohol level).
[¶13] Still, Freeman argues that "fundamental fairness" should mean that the fact that his ACE was under 0.08 should raise an inference that he was not intoxicated. Appellant's Br. pp. 9, 12. Contrary to Freeman's argument, Indiana Code Section 9-13-2-151 provides that the fact that a person has an ACE of at least 0.05 is "[r]elevant evidence of intoxication." Thus, far from being evidence of non-intoxication, Freeman's ACE of 0.05 is instead relevant evidence of his intoxication. See id; see also Poortenga v. State, 99 N.E.3d 691, 697 (Ind.Ct.App. 2018) (holding that trial court erred by instructing jury not to consider evidence that defendant's ACE was under the legal limit of 0.08 because this evidence was relevant to determining whether defendant was intoxicated).
We decline Freeman's request to reconsider Poortenga. Even if we were so inclined, we cannot reconsider Indiana Code Section 9-13-2-151, which clearly and unambiguously provides that the fact that a person has an ACE of at least 0.05 is "[r]elevant evidence" of that person's intoxication.
[¶14] We, therefore, conclude that the State presented sufficient evidence to prove that Freeman operated his vehicle while intoxicated.
Conclusion
[¶15] The State presented sufficient evidence to support Freeman's conviction for OVWI endangering a person. Accordingly, we affirm the trial court's judgment.
[¶16] Affirmed.
May, J. and DeBoer, J., concur.