MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Mar 02 2020, 9:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
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estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Timothy J. Burns Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Marjorie Lawyer-Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Timothy Logan Miesen, March 2, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1932
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Clayton A.
Appellee-Plaintiff. Graham, Judge
Trial Court Cause No.
49G07-1905-CM-19844
Darden, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1932 | March 2, 2020 Page 1 of 8
Statement of the Case
[1] Timothy Logan Miesen appeals his conviction of operating a vehicle while
1
intoxicated in a manner endangering a person, a Class A misdemeanor. We
affirm.
Issues
[2] Miesen raises two issues, which we restate as:
I. Whether the trial court erred by admitting a laboratory
report into evidence.
II. Whether the evidence is sufficient to sustain his
conviction.
Facts and Procedural History
[3] On May 18, 2019, at approximately 6 p.m., Officer Kyle Jones was dispatched
to investigate a report of an accident involving personal injury. When he
arrived at the scene, he saw a moped laying on the side of the road, with minor
scrapes on its right side. Jones also encountered Miesen, who was being treated
by medics for an injury to his right leg. There were no other civilians in the
area.
1
Ind. Code § 9-30-5-2 (2001).
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[4] Jones asked Miesen what happened, and Miesen told Jones “he hit another
vehicle while he was driving his moped.” Tr. Vol. II, p. 6. Jones noted that
Miesen’s pupils were “constricted,” and he had slurred speech. Id. at 7. Next,
Jones had Miesen perform a horizontal gaze nystagmus test. Miesen failed the
test, which, according to Jones’ training, is a sign of intoxication. Jones did not
ask Miesen to perform any other field sobriety tests because his injured leg
limited his mobility.
[5] Next, Jones asked Miesen to consent to a blood draw, and Miesen refused.
Jones arrested Miesen and transported him to a hospital to have a blood sample
2
drawn pursuant to a “warrant blood draw.” Id. at 9.
[6] Jones testified at trial that the blood draw occurred approximately two hours
after he first encountered Miesen. At the hospital, Jones watched a nurse draw
two vials of blood from Miesen. Nurse Cassie Thomas signed a document
certifying that she had drawn two tubes of blood from Miesen in the presence of
an officer. The nurse next put the vials in a blue biohazard bag, which Jones
then placed in an evidence bag. Nurse Thomas and Jones both signed a chain
of custody document demonstrating she gave the vials to him. Next, pursuant
to protocol Jones took the packaged vials to the Indianapolis Metropolitan
2
The record does not include any information about the circumstances under which the search warrant was
obtained, and Miesen does not complain of any irregularities in the search warrant process.
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Police Force’s property room to be stored until they were taken to a laboratory
for testing.
[7] A forensic scientist employed by the Indianapolis-Marion County Forensic
Services Agency tested the blood samples on May 21, 2019. The test revealed
that the ethyl alcohol concentration in Miesen’s blood was “0.103% w/v (o.103
b/100mL).” Tr. Ex. Vol., State’s Ex. 1. At trial, Miesen stipulated to the
accuracy of the blood sample test.
[8] On May 21, 2019, the State charged Miesen with operating a vehicle while
intoxicated in a manner endangering a person, a Class A misdemeanor;
operating a vehicle with an ACE of .08 or more, a Class C misdemeanor; and
driving while suspended, a Class A misdemeanor. On June 3, 2019, the trial
court ordered the suspension of Miesen’s driver’s license because he had refused
to submit to a chemical test.
[9] The trial court presided over a bench trial on July 23, 2019. At the beginning of
the trial, the State moved to dismiss the charge of driving while suspended.
After the parties presented their evidence and rested, the trial court found
Miesen guilty of operating a vehicle while intoxicated in a manner endangering
a person. The trial court also found him guilty of operating a vehicle with an
ACE of .08 or more, but determined that the charge merged with the charge of
operating a vehicle while intoxicated. The trial court granted the State’s motion
to dismiss the charge of driving while suspended. Next, the trial court imposed
a sentence, and this appeal followed.
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Discussion and Decision
I. Admission of Laboratory Report
[10] Miesen argues the trial court erred in admitting the laboratory report into
evidence, claiming the report should have been excluded because of “a
complete lack of foundation.” Appellant’s Br. p. 8.
[11] In reviewing the admission or exclusion of evidence, we determine whether the
trial court abused its discretion. McCallister v. State, 91 N.E.3d 554, 561 (Ind.
2018). We will reverse only if the trial court’s ruling was clearly against the
logic and effect of the facts and circumstances before it. Id.
[12] Miesen claims the State failed to establish a foundation for the admission of the
lab report because:
the record of the blood draw is completely lacking. The record is
silent as to the training of the nurse to obtain bodily substance
samples. The record is silent as to whether the nurse was acting
under the direction of a physician or a protocol prepared by a
physician.
Appellant’s Br. p. 11.
[13] Miesen further claims the absence of the foundational information was unduly
prejudicial to him and violated Indiana Appellate Rule 403. That rule provides:
“[t]he court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of one or more of the following: unfair prejudice,
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confusing the issues, misleading the jury, undue delay, or needlessly presenting
cumulative evidence.” Id.
[14] Miesen’s sole objection at trial to the admission of the laboratory report was “as
to chain of custody.” Tr. Vol. II, p. 11. He did not raise any of the
foundational issues he now seeks to raise on appeal. A defendant may not
argue one ground at trial and then raise a different ground on appeal, and the
failure to raise an issue at trial waives the issue for appeal. Orta v. State, 940
N.E.2d 370, 376 (Ind. Ct. App. 2011), trans. denied. Miesen has waived his
foundational challenge to the admission of the laboratory report.
[15] Waiver notwithstanding, “a party may not take advantage of an error that she
commits, invites, or which is the natural consequence of her own neglect or
misconduct.” Hill v. State, 51 N.E.3d 446, 451 (Ind. Ct. App. 2016). At the
beginning of the trial, Miesen and the State stipulated “to the results of the lab
report.” Tr. Vol. II, p. 4. During trial, despite raising a challenge to the chain
of custody of the samples, Miesen clarified that he stipulated to the report’s
“accuracy.” Id. at 11. By stipulating that the report was accurate, he invited
the court to disregard any foundational issues arising from the blood draw
procedure. We need not further address this claim.
II. Sufficiency of the Evidence
[16] Miesen argues the record is devoid of facts to support a conclusion that he was
intoxicated at the scene of the accident. We disagree. The standard of review
for assessing the sufficiency of the evidence is well-established:
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In reviewing a sufficiency of the evidence claim, the Court
neither reweighs the evidence nor assesses the credibility of the
witnesses. We look to the evidence most favorable to the verdict
and reasonable inferences drawn therefrom. We will affirm the
conviction if there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable
doubt.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002).
[17] To obtain a conviction as charged, the State was required to prove beyond a
reasonable doubt that: (1) Miesen; (2) operated a vehicle; (3) while intoxicated;
(4) in a manner that endangered a person. Ind. Code § 9-30-5-2. “Intoxicated”
is defined, in relevant part, as “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 (2013).
[18] The State need not present separate proof of impairment of action, impairment
of thought, and loss of control of faculties to establish an individual’s
intoxication. Woodson v. State, 966 N.E.2d 135, 142 (Ind. Ct. App. 2012), trans.
denied. Instead, “[e]vidence of the following can establish impairment: (1) the
consumption of significant amounts 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.”
Ballinger v. State, 717 N.E.2d 939, 943 (Ind. Ct. App. 1999).
[19] In Miesen’s case, Officer Jones noted that Miesen had constricted pupils and
slurred speech. In addition, Miesen failed the horizontal gaze nystagmus field
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sobriety test. Finally, although a blood test is not necessary to prove
intoxication, in this case the ethyl alcohol concentration in Miesen’s blood was
“0.103% w/v (o.103 b/100mL).” Tr. Ex. Vol., State’s Ex. 1. This is ample
evidence to demonstrate beyond a reasonable doubt that Miesen was
intoxicated at the scene of the accident. See Woodson, 966 N.E.2d at 142 (State
proved Woodson was intoxicated; he displayed three of the factors discussed
above).
[20] Miesen argues that the State did not present any evidence related to loss of
balance, hindered attention span and ability to listen to instructions, or
difficulty standing. This argument is a request to reweigh the evidence, which
our standard of review forbids.
Conclusion
[21] For the reasons stated above, we affirm the judgment of the trial court.
[22] Affirmed.
Brown, J., and Tavitas, J., concur.
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