MEMORANDUM DECISION
May 11 2015, 9:31 am
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.
ATTORNEY FOR APPELLANT
Timothy J. Lemon
Knox, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Donald Frazier, May 11, 2015
Appellant-Defendant, Court of Appeals Case No.
75A04-1408-CR-388
v. Appeal from the Starke Circuit Court
The Honorable Kim Hall, Judge
State of Indiana, Cause No. 75C01-1311-FD-199
Appellee-Plaintiff
Mathias, Judge.
[1] Following a jury trial, Donald Frazier (“Frazier”) was convicted in Starke
Circuit Court of Class D felony operating while intoxicated and Class A
misdemeanor possession of paraphernalia and sentenced to two years executed
in the Department of Correction. Frazier appeals and presents two issues for
our review:
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I. Whether the State presented evidence sufficient to support Frazier’s
operating while intoxicated conviction, and
II. Whether the sentence imposed by the trial court is inappropriate in
light of the nature of the offense and the character of the offender.
[2] We affirm.
Facts and Procedural History
[3] On October 31, 2013, Officer Kyle Hinds (“Officer Hinds”) was patrolling a
residential area in Hamlet, Indiana. As he drove, Officer Hinds observed a
green SUV stopped in the roadway. When Officer Hinds approached the SUV,
it spun its tires and made a right turn in front of Officer Hinds’s car so suddenly
that Officer Hinds had to quickly brake to avoid hitting the SUV. Officer Hinds
activated his lights and initiated a traffic stop of the SUV. He approached the
SUV, and the driver, later identified as Frazier, rolled down his window.
Officer Hinds observed the smell of alcohol coming from inside the vehicle, so
he asked Frazier to step out of the car. As Frazier exited the car, Officer Hinds
noticed that he was “unsteady on his feet.” Tr. p. 36. Frazier told Officer Hinds
that he had consumed four or five beers that evening.
[4] Officer Hinds then administered the horizontal gaze nystagmus field sobriety
test, which Frazier failed. The officer next administered the walk and turn test,
which Frazier also failed. Frazier consented to a Breathalyzer test, but Officer
Hinds was unable to acquire a sufficient sample.
[5] After Officer Hinds handcuffed Frazier and secured him in the back of his
squad car, he discovered a six-pack of cold beer in Frazier’s car, with four of the
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beer bottles missing, and a plastic drinking straw containing powdery residue.
Frazier told Officer Hinds that he used the straw to snort Oxycodone, for which
he had a prescription to treat pain related to his multiple sclerosis. Officer
Hinds read Frazier a standard implied consent advisement, after which Frazier
agreed to take a blood draw test. The test results indicated that Frazier’s blood
alcohol level was .08.
[6] The same day, the State charged Frazier with Class A misdemeanor possession
of a paraphernalia and Class D felony operating a vehicle while intoxicated
with a prior conviction. A jury trial was held on April 23, 2014. The jury found
Frazier to be guilty of both counts. Frazier’s sentencing hearing was held three
months later on July 29, 2014. At the hearing, the trial court found the
following aggravating factors: that Frazier’s criminal history consists largely of
convictions involving substance abuse; that Frazier has not participated in or
benefited from substance abuse treatment programs; that Frazier’s criminal
history and previous sentences have failed to deter him from committing
additional crimes; and that Frazier had violated the terms of his probation by
committing the present offense. The trial court found no mitigating
circumstances. The trial court sentenced Frazier to one year for his Class A
misdemeanor conviction and three years for his Class D felony conviction, to
be served concurrently. The court suspended one year of the aggregate sentence
to probation, for an aggregate sentence of two years.
[7] Frazier now appeals.
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I. Sufficiency of the Evidence
[8] We begin by noting that the State failed to file either a brief or a statement of
non-involvement. When appellees do not submit a brief, we need not undertake
the burden of developing an argument on their behalf. Trinity Homes, LLC v.
Fang, 848 N.E.2d 1065, 1068 (Ind. 2006). Rather, we will reverse if the
appellant’s brief presents a case of prima facie error. Id. Prima facie error in this
context is error “at first sight, on first appearance, or on the face of it.” Id.
(quoting Santana v. Santana, 708 N.E.2d 886, 887 (Ind. Ct. App. 1999)). If an
appellant does not meet this burden, we will affirm. Id.
[9] Frazier argues that the State failed to provide sufficient evidence to prove that
he committed Class D felony operating while intoxicated. When we consider a
challenge to the sufficiency of evidence to support a conviction, we respect the
jury’s exclusive province to weigh the evidence, and therefore, neither reweigh
the evidence nor judge witness credibility. McHenry v. State, 820 N.E.2d 124,
126 (Ind. 2005). We consider only the probative evidence and reasonable
inferences supporting the conviction, and “must 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. at 126 (quoting Tobar v. State, 740 N.E.2d 109, 111-12 (Ind. 2000)).
[10] To convict Frazier of Class D felony operating a vehicle while intoxicated, the
State was required to prove that Frazier operated a vehicle while intoxicated
and had “a previous conviction of operating while intoxicated that occurred
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within the five (5) years immediately preceding” the current charged offense.
See Indiana Code sections 9-30-5-2(a), -3(a).
[11] Frazier does not dispute the prior conviction that elevated his offense to a Class
D felony. However, he does argue that the evidence is insufficient to prove that
he was intoxicated while operating his vehicle. He states, “[t]he record shows
that several people observed Mr. Frazier on the day of the stop and stated that
he was not acting intoxicated or had consumed small amounts of alcohol.”
Appellant’s Br. at 5. Frazier also challenges the result of his blood test, arguing
“no evidence was presented to show the differences between a blood draw and
a certified breath test. It is highly likely that the error rate from the blood draw
could have put Mr. Frazier’s BAC above the legal limit.” Id. Finally, he
maintains that the fact that he failed the field sobriety tests administered by
Officer Hinds was likely due to his multiple sclerosis, not to his alleged
intoxication.
[12] At trial, Officer Hinds testified that Frazier’s SUV was stopped in the road for
no reason and, as he approached Frazier, Frazier cut off the officer by turning
abruptly in front of him. Officer Hinds also stated that he detected the smell of
alcohol coming from inside Frazier’s car, that Frazier was unsteady on his feet
as he exited the vehicle, that Frazier admitted to consuming alcohol, and that
Frazier failed two field sobriety tests. Officer Hinds discovered a six-pack of
cold beer in Frazier’s vehicle, with four of the six beers missing. Also, a blood
test indicated that Frazier’s blood alcohol level was .08.
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[13] From all of this evidence, the jury could reasonably infer that Frazier’s thoughts
and actions were impaired while he was operating his vehicle.1 Cf Minix v. State,
726 N.E.2d 848, 851 (Ind. Ct. App. 2000), trans. denied. Frazier’s argument
amounts to a request that we reweigh the evidence, which we will not do. See
McHenry, 820 N.E.2d at 126. We therefore conclude that the State presented
sufficient evidence to prove that Frazier operated his vehicle while intoxicated.
II. Inappropriate Sentence
[14] Frazier also argues that his sentence is inappropriate in light of the nature of the
offense and the character of the offender. Pursuant to Indiana Appellate Rule
7(B), we may “revise a sentence authorized by statute if, after due consideration
of the trial court’s decision, the Court finds that the sentence is inappropriate in
light of the nature of the offense and the character of the offender.” Although
we may review and revise a sentence, “[t]he principal role of appellate review
should be to attempt to leaven the outliers, and identify some guiding principles
for trial courts and those charged with improvement of the sentencing statutes,
but not to achieve a perceived ‘correct’ result in each case.” Cardwell v. State,
895 N.E.2d 1219, 1225 (Ind. 2008). We must give “deference to a trial court’s
sentencing decision, both because Rule 7(B) requires us to give due
consideration to that decision and because we understand and recognize the
unique perspective a trial court brings to its sentencing decisions.” Trainor v.
1
Indiana Code section 9-13-2-86 defines “intoxicated” as “under the influence of: (1) alcohol; . . . so that
there is an impaired condition of thought and action and the loss of normal control of a person's faculties.”
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State, 950 N.E.2d 352, 355-56 (Ind. Ct. App. 2011), trans. denied (quoting Stewart
v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007)) (internal quotation marks
omitted).
[15] When we review the appropriateness of a sentence, we consider “the culpability
of the defendant, the severity of the crime, the damage done to others, and
myriad other factors that come to light in a given case.” Cardwell, 895 N.E.2d
at 1224. The defendant has the “burden to persuade us that the sentence
imposed by the trial court is inappropriate.” Shell v. State, 927 N.E.2d 413, 422
(Ind. Ct. App. 2010).
[16] Frazier argues that his three-year maximum2 sentence is inappropriate because
“there was nothing particularly egregious about his conduct above and beyond
what generally is necessary to establish Class D felony operating a Vehicle
while intoxicated with a prior conviction.” Appellant’s Br. at 7. See also
Buchanan v. State, 767 N.E.2d 967 (Ind. 2002) (principle that maximum possible
sentences are generally most appropriate for the worst offenders does not
require a determination of whether a worse offender could be imagined, but
refers generally to the class of offenses and offenders that warrant the maximum
punishment). He also contends that the trial court erred in finding his “prior
record consist[ing] of mainly prior substance abuse related convictions” to be an
2
See Indiana Code section 35-50-2-7(a) (providing that a person who commits a Class D felony “shall be
imprisoned for a fixed term of between six (6) months and three (3) years, with the advisory sentence being
one and one-half (1 ½ ) years.”).
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aggravating circumstance and that, in fact, the trial court should have found his
“history of alcohol and chemical dependence” to be a mitigating factor. Id. at 8-
9.
[17] Contrary to his claims, Frazier’s sentence is well-supported by his extensive
criminal history, which consists of seven misdemeanors and four felonies,
including convictions for battery resulting in bodily injury, possession of
marijuana, maintaining a common nuisance, operating while intoxicated, and
resisting law enforcement. Frazier attempts to minimize his criminal history by
arguing that most of his prior convictions were merely substance abuse-related.
However, the trial court’s use of these convictions as aggravating factors was
certainly not inappropriate, given the nature of Frazier’s present offense. In
sum, with respect to alcohol-related crimes, Frazier is among the “worst
offenders.” Buchanan, 767 N.E.2d at 973.
[18] In addition, Frazier’s probation was revoked in six prior cases, and he was on
probation at the time of the current offense. In light of Frazier’s failed attempts
at rehabilitation and his long record of alcohol-related offenses, Frazier has not
demonstrated that an executed two-year sentence plus one year of probation is
inappropriate.
Conclusion
[19] The State presented sufficient evidence to support Frazier’s Class D felony
operating while intoxicated conviction and Frazier’s three-year sentence with
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one year suspended was not inappropriate in light of the nature of the offense
and the character of the offender.
[20] Affirmed.
May, J., and Robb, J., concur.
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Donal Frazier v. State of Indiana (mem. dec.)
Combined Opinion