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.
Feb 20 2014, 10:45 am
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
SUZY ST. JOHN GREGORY F. ZOELLER
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
MICHAEL GENE WORDEN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JUAN CONCEPCION, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1306-CR-557
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION COUNTY SUPERIOR COURT
The Honorable Amy Jones, Judge
Cause No. 49F08-1301-CM-006225
February 20, 2014
MEMORANDUM DECISION – NOT FOR PUBLICATION
MATHIAS, Judge
Juan Concepcion (“Concepcion”) was convicted of Class A misdemeanor
operating while intoxicated and Class C misdemeanor operating with a blood alcohol
content (“BAC”) greater than 0.08%. Concepcion appeals and argues that the State failed
to present sufficient evidence to support his convictions.
We affirm.
Facts and Procedure
On January 27, 2013, at 3:09 a.m., Indiana State Police Trooper Jarrin Franklin
(“Trooper Franklin”) responded to a 911 report of an accident on Interstate 70 in Marion
County. When Trooper Franklin arrived at the scene of the accident, he observed
Concepcion standing next to his car, speaking with a passer-by who had stopped at the
scene and called 911. Concepcion’s car was on the left shoulder of the highway, angled
diagonally and partially extended into the leftmost lane of the three-lane highway. As
Trooper Franklin approached Concepcion, he saw that Concepcion “had very unsteady
balance and he had very slurred speech and also had bloodshot, glassy eyes.” Tr. p. 9.
Concepcion told Trooper Franklin that, as he was traveling on Interstate 70, a tire on his
car blew out, causing him to collide with the concrete barrier dividing the eastbound and
westbound lanes of the highway. He admitted to Trooper Franklin that he was the driver
of the car involved in the collision and that he had been drinking.
Trooper Franklin then administered a horizontal gaze nystagmus (“HGN”) test,
which Concepcion failed. For safety reasons, because of the proximity of the accident
scene to the travelled lanes of the highway and Concepcion’s unsteadiness, Trooper
Franklin did not administer the “one leg stand” or the “walk and turn” field sobriety tests.
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Trooper Franklin dispatched an ambulance to the scene to ensure that Concepcion was
not injured. After the medics confirmed that Concepcion was uninjured, Trooper
Franklin transported Concepcion to the Beech Grove Police Department. As he placed
Concepcion in his cruiser, Trooper Franklin noted that Concepcion’s clothes smelled of
alcohol.
At the police station, Trooper Franklin first administered to Concepcion another
HGN test, which Concepcion again failed. Trooper Franklin then initiated the “walk and
turn” field sobriety test, but Concepcion refused to complete the test, telling Trooper
Franklin that “he was too intoxicated to do that and he didn’t want to make himself look
bad.” Tr. p. 22. Concepcion, however, agreed to take a certified breath test. The breath
test was performed at 4:21 a.m., an hour and twelve minutes after Trooper Franklin
arrived at the scene of Concepcion’s accident. The results of the test indicated that
Concepcion’s blood alcohol content was .13%.
On January 27, 2013, the State charged Concepcion with Count I, Class A
misdemeanor operating a vehicle while intoxicated in a manner that endangers a person
and Count II, Class C misdemeanor operating a vehicle with a blood alcohol level
between .08% and .15%. A bench trial was held on May 31, 2013. The trial court found
Concepcion guilty of both counts and sentenced him to concurrent sentences of 365 days
on Count I, with two days executed and 363 days suspended to probation, and sixty days
on Count II, with two days executed and fifty-eight days of Concepcion’s sentence
suspended to probation.
Concepcion now appeals.
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Discussion and Decision
Concepcion argues that the evidence presented by the State is insufficient to
support his convictions. Upon a challenge to the sufficiency of evidence to support a
conviction, we neither reweigh the evidence nor judge the credibility of the witnesses;
instead, we respect the exclusive province of the trier of fact to weigh any conflicting
evidence. McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). We consider only the
probative evidence and reasonable inferences supporting the verdict, and we will 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.
I. Operating While Intoxicated
Concepcion first argues that the evidence was insufficient to prove that he
operated his vehicle while he was intoxicated. Class A misdemeanor operating a vehicle
while intoxicated occurs when a person operates a motor vehicle while intoxicated in a
manner that endangers a person. Ind. Code § 9-30-5-2. A person is intoxicated when
under the influence of alcohol “such that there is an impaired condition of thought and
action and the loss of normal control of a person’s faculties.” Id.; Ind. Code § 9-13-2-
86(1). The State must establish impairment regardless of the defendant’s blood alcohol
concentration. Fields v. State, 888 N.E.2d 304, 307 (Ind. Ct. App. 2008). Impairment
may 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
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alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7)
slurred speech.” Stephens v. State, 992 N.E.2d 935, 938 (Ind. Ct. App. 2013).
Concepcion claims that the State failed to prove “the temporal element of the
offense” because “the record is void of evidence that Concepcion was observed in an
intoxicated condition immediately after the accident.” Appellant’s Br. at 6. To support
his argument, Concepcion cites Trooper Franklin’s admission at trial that it was possible
that Concepcion’s accident had occurred hours before Trooper Franklin arrived at the
scene.
The evidence most favorable to the judgment indicates that, upon arriving at the
scene of the accident, Trooper Franklin saw Concepcion standing next to his car and
talking with the same witness who had called 911 to report the collision. Trooper
Franklin observed that Concepcion had unsteady balance, bloodshot, glassy eyes, and
slurred speech, and that he smelled of alcohol. Concepcion admitted to Trooper Franklin
that he had been drinking and that he was the driver of the car involved in the collision.
Trooper Franklin testified that, while it was possible that Concepcion’s accident had
occurred hours before Trooper Franklin arrived at the scene, “[d]ue to the. . . busyness of
the interstate, I don’t think it would’ve passed for hours” before a witness called 911 to
report the accident. Tr. p. 27.
Therefore, taken as a whole, the evidence establishes that Concepcion had watery
or bloodshot eyes and unsteady balance, that he smelled of alcohol, that he failed two
field sobriety tests and refused to perform a third, and that his BAC was .13% at 4:21
a.m. The trial court was entitled to “draw reasonable inferences from facts” established
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by this evidence. Smith v. State, 547 N.E.2d 845, 846 (Ind. 1989) (quoting McCann v.
State, 466 N.E.2d 421, 423 (Ind. 1984)).
Although Concepcion asserts that the State failed to prove the temporal element of
the crime, in light of the evidence admitted during the trial of this case, it was not
unreasonable for the trial court to conclude that Concepcion operated his vehicle while he
was intoxicated. See id. (concluding that evidence that a witness saw the defendant
driving erratically and hit her mailbox and that the defendant’s blood alcohol content was
high three hours later was sufficient evidence to allow the jury to deduce that the
defendant was intoxicated when he struck the mailbox.); see also Stephens, 992 N.E.2d at
938 (holding that evidence that defendant had unsteady balance, watery, bloodshot eyes,
the odor of alcohol on his breath, failed three field sobriety tests, along with a chemical
breath test result of .10% was sufficient to support conviction for operating while
intoxicated.).
The evidence most favorable to the judgment is sufficient to support the trial
court’s finding that Concepcion operated his vehicle while he was intoxicated.
Concepcion’s argument to the contrary amounts to an invitation to reweigh evidence and
judge witness credibility, which we may not do.
II. Endangerment
Concepcion next argues that the State failed to prove the element of endangerment
necessary to elevate the conviction from Class C to Class A misdemeanor operating
while intoxicated. Evidence of intoxication, alone, is insufficient to prove endangerment.
Dorsett v. State, 921 N.E.2d 529, 532 (Ind. Ct. App. 2010). The State must establish
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endangerment by proving that “the defendant was operating the vehicle in a condition or
manner that could have endangered any person, including the public, the police, or the
defendant.” Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011), trans. denied.
Concepcion argues that, because his car’s tire blew out and forced him onto the
shoulder of the highway, “there is no evidence suggesting his manner of driving caused
the accident.” Appellant’s Br. at 8. He claims that his accident was “a result of factors
beyond [his] control,” rather than a result of his intoxication. Id.
Evidence of Concepcion’s intoxication alone is insufficient to prove
endangerment. See Dorsett, 921 N.E.2d at 532. However, in light of the evidence
admitted during the trial of this case, it was not unreasonable for the trial court to find
that Concepcion’s intoxication caused danger to himself or to others. Even if
Concepcion’s damaged tire caused his collision with the highway barrier, he was driving
while intoxicated on a busy interstate highway and, as the trial court noted, “someone
who’s not intoxicated might be able to more appropriately respond to a tire being blown
and . . . thankfully [he] didn’t take out three lanes of cars or kill himself when he
crashed[.]” Tr. p. 33. The facts of this case support a reasonable inference that
Concepcion’s ability to control his car when his tire blew out was impaired due to his
intoxication, which endangered his life as well as the lives of other motorists. See
Vanderlinden v. State, 918 N.E.2d 642, 646 (Ind. Ct. App. 2009) (holding that evidence
of speeding alone can satisfy endangerment element necessary to elevate OWI offense to
a Class A misdemeanor.). Concepcion’s argument is merely an invitation to reweigh the
evidence, which we will not do. Therefore, we conclude that the evidence presented by
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the State was sufficient to support Concepcion’s conviction for Class A misdemeanor
operating while intoxicated.
III. Blood Alcohol Content Greater Than .08%
Finally, Concepcion contends that insufficient evidence was presented to support
his conviction for operating a vehicle while intoxicated with a blood alcohol content
between .08% and .15%. To convict Concepcion of this offense, the State was required
to prove that Concepcion operated a vehicle with a BAC level of at least .08% but less
than .15%. Ind. Code § 9-30-5-1(a). If the evidence establishes that a chemical test was
performed within three hours after the officer obtained probable cause to believe that an
offense had occurred and the defendant had a BAC of at least .08, the trier of fact shall
presume that the defendant had a BAC of at least .08 at the time he operated the vehicle.
Ind. Code § 9-30-6-2(c); Ind. Code § 9-30-6-15(b). This presumption may be rebutted.
Ind. Code § 9-30-6-15(b).
Concepcion argues that, because the State failed to establish the precise time of the
accident, it could not “establish [that] the certified breath test was administered within
three hours of the alleged violation.” Appellant’s Br. at 10. Thus, Concepcion claims,
the State was “not permitted to rely on the statutory presumption.” Id.
Here, the record reveals that Trooper Franklin responded to the scene of
Concepcion’s accident after a witness called 911. When Trooper Franklin arrived at the
scene, the witness who had called 911 was still at the scene. Trooper Franklin testified
that the highway was so busy at the time that he did not believe hours would have passed
before a witness called 911 to report the accident. Concepcion admitted to Trooper
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Franklin that he had been drinking and driving. Trooper Franklin personally observed
that Concepcion had bloodshot eyes, slurred speech, and unsteady balance and that he
smelled of alcohol. Concepcion failed two HGN tests and a certified breath test
administered about an hour and twelve minutes after Trooper Franklin arrived at the
accident scene revealed a blood alcohol content of .13%. Given these facts, it was
reasonable for the trial court to infer that the chemical breath test was administered within
three hours of Concepcion’s operation of his vehicle. Indeed, if anything, any alleged
passage of time between the accident and the certified breath test worked to reduce the
blood alcohol content reported. Concepcion’s argument here is a request to reweigh the
evidence, which we will not do. Therefore, we conclude that the State presented
evidence sufficient to sustain Concepcion’s conviction.
Conclusion
For all of these reasons, we conclude that the State presented sufficient evidence to
support Concepcion’s convictions for Class A misdemeanor operating while intoxicated
and Class C misdemeanor operating with an alcohol concentration equivalent greater than
.08%.
Affirmed.
BRADFORD, J., and PYLE, J., concur.
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