Lasandra Norman v. State of Indiana (mem. dec.)

L
MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                                FILED
regarded as precedent or cited before any                                  Jul 15 2020, 9:26 am

court except for the purpose of establishing                                    CLERK
                                                                            Indiana Supreme Court
the defense of res judicata, collateral                                        Court of Appeals
                                                                                 and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                     Curtis T. Hill, Jr.
Crown Point, Indiana                                      Attorney General of Indiana

                                                          J.T. Whitehead
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Lasandra Norman,                                          July 15, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2751
        v.                                                Appeal from the Lake Superior
State of Indiana,                                         Court

Appellee-Plaintiff                                        The Honorable Diane Ross
                                                          Boswell, Judge
                                                          Trial Court Cause No.
                                                          45G03-1801-F6-10



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020                       Page 1 of 8
[1]   Lasandra Norman challenges her conviction of Class A misdemeanor operating

      a vehicle while intoxicated and endangering a person less than eighteen years of

      age. 1 Norman argues the State failed to produce sufficient evidence to support

      her conviction. We affirm.



                             Facts and Procedural History
[2]   On December 29, 2017, at 11:39 p.m., Lake Station Police Department Patrol

      Officer Troy Allen observed a vehicle swerving and weaving erratically across

      lanes on the road during hazardous winter driving conditions. Officer Allen

      paced Norman’s vehicle and using his speedometer determined the vehicle’s

      speed as sixty miles per hour, even though the speed limit was only thirty-five

      miles per hour, and promptly pulled over the vehicle. Norman was the driver

      of the car, and her seventeen-year-old daughter, L.N., was sitting in the front

      passenger seat. While questioning Norman at the scene, Officer Allen smelled

      a “strong odor of alcoholic beverage emitting from her breath,” observed that

      she had “red, watery eyes,” and noticed that Norman’s “speech appeared to be

      slurred.” (Tr. Vol. II at 52-53.) When questioned, Norman confirmed she had

      some champagne earlier that evening while at the beauty salon.


[3]   Based on his observations and Norman’s admission to having consumed

      alcohol, Officer Allen began to evaluate the extent of Norman’s impairment.

      Norman agreed to the first field sobriety test, the Horizontal Gaze Nystagmus


      1
       Ind. Code § 9-30-5-3. Norman was found guilty of a Level 6 felony, but the trial court reduced her
      conviction to a Class A misdemeanor pursuant to Indiana Code section 35-50-2-7(c)(1)(A).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020                    Page 2 of 8
      (HGN), which she failed for both eyes. After the HGN test, Officer Allen

      administered a portable breathalyzer test which showed that Norman had a

      blood alcohol content of “0.184.” (Tr. Vol. II at 73.) Officer Allen did not ask

      Norman to perform the walk-and-turn and the one-leg stand field sobriety tests

      because of the unsafe weather conditions. Rather, he drove Norman to the

      Lake Station Police Department to complete his investigation. While at the

      station, Norman refused to complete the final two field sobriety tests or submit

      to a chemical test as outlined by the implied consent statute. 2 Officer Allen

      placed Norman under arrest for operating a vehicle while intoxicated.


[4]   On January 1, 2018, the State charged Norman with Level 6 felony operating a

      vehicle while intoxicated endangering a person than eighteen years of age,

      Class A misdemeanor operating a vehicle while intoxicated endangering a

      person, 3 and Class C misdemeanor operating a vehicle while intoxicated. 4

      Norman requested a bench trial and proceeded pro se. The trial court found

      Norman guilty on all counts, but vacated the two misdemeanor counts and, in

      its discretion pursuant to Indiana Code section 35-50-2-7, entered a judgment of

      conviction on the Level 6 felony charge as a Class A misdemeanor. The trial

      court then imposed a one-year suspended advisory sentence. The trial court




      2
       All drivers impliedly consent to submit to chemical testing if there is probable cause to believe the driver
      has committed an “operating while intoxicated” offense. Ind. Code §§ 9-30-6-1 & 9-30-6-2.
      3
          Ind. Code § 9-30-5-2(b).
      4
          Ind. Code § 9-30-5-2(a).




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020                        Page 3 of 8
      granted Norman’s petition to file a belated notice of appeal on October 24,

      2019.



                                 Discussion and Decision
[5]   When reviewing the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      trial court’s decision. Drane v. State, 

867 N.E.2d 144

, 146 (Ind. 2007). It is

      solely the initial fact-finder’s role to evaluate witness credibility and weigh the

      evidence to determine whether it is sufficient to support a conviction; thus we

      consider conflicting evidence in the light most favorable to the trial court’s

      ruling. Jones v. State, 

783 N.E.2d 1132

, 1139 (Ind. 2003). We will affirm a

      conviction unless no reasonable fact-finder could find the elements of the crime

      proven beyond a reasonable doubt.

Id. [6] In

order to convict Norman, the State had to present evidence to prove beyond

      a reasonable doubt that Norman “operate[d] a vehicle while intoxicated[,]” Ind.

      Code § 9-30-5-2(a), “in a manner that endangers a person under the age of

      eighteen.” Ind. Code § 9-30-5-3. Indiana Code section 9-13-2-86 defines

      intoxication as being 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.” A number of physical factors may indicate impairment,

      including: (1) admitted 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;



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020   Page 4 of 8
      and (7) slurred speech. Fields v. State, 

888 N.E.2d 304

, 307 (Ind. Ct. App.

      2008). The State is required to establish the defendant was impaired based on

      other factors regardless whether the blood alcohol content was above or below

      the legal limit. Jellison v. State, 

656 N.E.2d 532

, 535 (Ind. Ct. App. 1995).


[7]   Norman attempts to persuade us to consider her daughter’s testimony, which

      contradicts Officer Allen’s testimony that Norman displayed signs of alcohol-

      induced impairment. L.N. testified that she did not smell any alcohol on

      Norman nor hear Norman slur her speech and that, due to the condition of the

      roads that night, Norman could not have been driving erratically. L.N.

      additionally testified that she lived with Norman and that she had never seen

      Norman intoxicated before. The trial judge ultimately agreed with the State

      that L.N. displayed bias towards Norman’s version of events. It is well-

      established that this Court will not reweigh the evidence presented or reassess

      the credibility of a witness. Fajardo v. State, 

859 N.E.2d 1201

, 1208 (Ind. 2007).

      Thus, we will not disturb the trial court’s determination that Officer Allen’s

      testimony was more credible than L.N.’s testimony and, instead, turn our

      attention to whether the State presented sufficient evidence to demonstrate

      Norman’s impairment and intoxication.


[8]   In A.V. v. State, 

918 N.E.2d 642

, 643 (Ind. Ct. App. 2009), A.V. had been

      stopped by a State Trooper for driving fifty-one miles per hour in a thirty-five

      mile per hour zone. Upon approaching the vehicle, the Trooper first observed

      that A.V. had bloodshot eyes and alcohol-tinged breath and then, during

      questioning of A.V. at the scene, confirmed that A.V. had consumed an



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020   Page 5 of 8
       unspecified amount of alcohol earlier that evening.

Id. The Trooper

       administered only the HGN field sobriety test, because A.V. had a sprained

       ankle and could not participate in the other tests.

Id. at 644.



[9]    Based on the officer’s investigation, the State charged A.V. with Class A

       misdemeanor operating while intoxicated and Class C misdemeanor public

       intoxication. 5
 Id. As part 
of its case in chief, the State emphasized that A.V.

       admitted consuming at least some alcohol that evening, that the Trooper

       smelled alcohol on her breath, that her eyes appeared red, and that she failed

       the HGN field sobriety test.
 Id. After a 
bench trial, the trial court found A.V.

       guilty of both counts but entered a conviction on only the operating while

       intoxicated count. We upheld A.V.’s conviction as having sufficient support in

       the evidence.
 

Id. at 644.



[10]   In our present case, the arresting officer testified that Norman had the smell of

       alcohol on her breath, had bloodshot watery eyes, produced slurred speech,

       failed the only field sobriety test given, displayed erratic and dangerous driving

       behavior, and refused to submit to a chemical test or the remaining field

       sobriety tests. These facts provide sufficient evidence of intoxication. See
 id.


[11]   Norman 
also suggests her conviction was improper because the trial court judge

       misinterpreted Indiana Code section 9-13-2-86, which defines intoxication. In

       support, Norman notes that, during the sentencing hearing, the judge

       commented that the statute is “written for people not to drink and drive…and

       5
           Ind. Code § 35-50-3-4.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020   Page 6 of 8
       that means not one beer, not one glass of champagne.” (Tr. Vol. II at 162.)

       However, immediately prior to that statement, Norman had asked the judge “if

       the limit is 0.08 and you blow 0.05, will that still be considered as impaired,” to

       which the Judge replied, “well sometimes it is, because of…what you do.” (Id.)

       We agree with Norman that the trial judge’s statement during sentencing is not

       a correct statement of the law, however we are not persuaded by Norman’s

       assertion that, based on that singular statement, the judge misapplied the

       statute. When considered against the context in which the statement was said,

       the legal understanding of what establishes impairment, and the facts that were

       presented at trial regarding Norman’s erratic driving behavior and physical

       state, there is sufficient evidence to uphold Norman’s conviction. In a bench

       trial, as was held here, we presume the trial court knows and properly applies

       the law, see Techna-Fit, Inc. v. Fluid Transfer Products, Inc., 
45 N.E.3d 399
, 413

       (Ind. Ct. App. 2015) (“where a bench trial is held, we presume the trial judge is

       aware of and knows the law and considers only evidence properly before [her]

       in reaching a decision”), and Norman has not demonstrated we should ignore

       that presumption.



                                               Conclusion
[12]   We hold the State met its burden of proving beyond a reasonable doubt that

       Norman was sufficiently impaired and under the influence of alcohol when she

       operated her vehicle. Accordingly, we affirm her conviction of Class A




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020   Page 7 of 8
       misdemeanor operating a vehicle while intoxicated endangering a person under

       the age of eighteen.


[13]   Affirmed.


       Robb, J., and Vaidik, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2751 | July 15, 2020   Page 8 of 8

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