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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.

FILED
Dec 29 2010, 9:03 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JOHN T. WILSON Anderson, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana WADE JAMES HORNBACHER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
EDWARD WEAVER, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 48A02-1004-CR-460

APPEAL FROM THE MADISON SUPERIOR COURT The Honorable Thomas Newman, Jr., Judge Cause No. 48D03-0704-FC-99

December 29, 2010

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Edward Weaver's home detention and probation were revoked when the trial court found that he violated the terms thereof by committing the offenses of operating while intoxicated, public intoxication, and driving while suspended; failing to abstain from drugs and alcohol; and failing to report his arrest to the probation department within forty-eight hours. Weaver argues that there is insufficient evidence that he committed operating while intoxicated and public intoxication. Because the trial court was not required to credit Weaver's evidence that his intoxication was involuntary and the evidence is otherwise sufficient, we affirm the trial court's findings. Weaver also argues that the trial court abused its discretion by ordering him to serve his sentence in the Department of Correction. We conclude that the violations in this case and Weaver's history of similar conduct warrant revocation; however, we remand for the trial court to clarify its sentencing order, as we cannot reconcile the conflict between its written and oral statements. Facts and Procedural History On February 10, 2009, Weaver pled guilty to class C felony burglary pursuant to a plea agreement. On March 23, 2009, he was sentenced to eight years, with two years on home detention and six years suspended to probation. Less than a month later, a notice of violation was filed. Weaver admitted that he had used marijuana and cocaine and was continued on home detention. On January 6, 2010, Weaver was arrested for class A misdemeanor operating while intoxicated, class A misdemeanor driving while suspended, and class B misdemeanor public

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intoxication. The State filed petitions to revoke Weaver's home detention and probation, alleging that he had violated the terms thereof by committing new offenses, failing to abstain from drug and alcohol use, and failing to report his arrest to the probation department within forty-eight hours. On March 8, 2010, an evidentiary hearing was held. Officer Gary Smith testified that on January 6, 2010, he was involved in investigating a single-vehicle crash in which Weaver was the driver. Officer Smith stated that it was "immediately apparent[]" that Weaver was "under the influence of something," because he had poor balance, slurred speech, bloodshot and dilated eyes, and he had difficulty remembering what had happened. Tr. at 28. Officer Smith administered the horizontal gaze nystagmus test, which Weaver failed. Officer Smith did not offer any other field sobriety tests because Weaver had been recently injured. There was no evidence that Weaver was under the influence of alcohol. Officer Smith testified that Weaver did not smell of alcohol and that no alcohol was found in his breath when he was given a certified breath test. Officer Smith testified that Weaver was taken to the hospital for a blood draw, but he did not know the results of the blood test, and the State did not present any evidence of the results.1 Weaver, however, presented evidence that he was under the influence of PCP. Matthew Norwood testified that Weaver gave him a ride on January 6. Weaver asked him for a cigarette, and Norwood gave him one that was laced with PCP. Norwood claimed that

We note that one of the officers involved in this case, Officer Stacey Lettinga, did not respond to the State's subpoena, even after the trial court granted the prosecutor a continuance to track down the officer. The record suggests that she may have had additional information about the blood draw.

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he unintentionally gave Weaver "the wrong cigarette" and therefore did not inform him that it contained PCP. Id. at 37. Weaver admitted that he drove while suspended. He testified that his boss usually gives him a ride to work, but was out of town on January 6. He stated that he stopped at a gas station, where he saw Norwood and offered him a ride. He asked Norwood for a cigarette, and he claimed that he did not realize that it was not a normal cigarette until he "woke up in handcuffs." Id. at 53. Weaver did not remember the crash at all. The court found that Weaver had violated the conditions of his home detention and probation as alleged and ordered him to serve his sentence in the Department of Correction. Discussion and Decision "Probation revocation is a two-step process." Parker v. State, 676 N.E.2d 1083, 1085 (Ind. Ct. App. 1997). "First, the court must make a factual determination that a violation of a condition of probation actually occurred. If a violation is proven, then the trial court must determine if the violation warrants revocation of the probation." Id. A probation hearing is civil in nature; therefore, the State need only prove the alleged violations by a preponderance of the evidence. Holmes v. State, 923 N.E.2d 479, 485 (Ind. Ct. App. 2010). Our standard of review is the same for a petition to terminate home detention. Brooks v. State, 692 N.E.2d 951, 953 (Ind. Ct. App. 1998), trans. denied. I. Sufficiency of the Evidence Weaver argues that there is insufficient evidence that he violated his home detention and probation by committing the offenses of operating while intoxicated and public

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intoxication. When reviewing the sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Smith v. State, 727 N.E.2d 763, 765 (Ind. Ct. App. 2000). We consider the evidence most favorable to the judgment of the trial court, and we will affirm if there is substantial evidence of probative value to support the trial court's determination. Holmes, 923 N.E.2d at 485. With respect to operating while intoxicated, Weaver argues that the State failed to prove a violation of Indiana Code Section 9-30-5-1 because it did not establish the existence or amount of alcohol or a controlled substance in his breath or blood.2 The State argues that it established a violation of Indiana Code Section 9-30-5-2,3 which states:

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Indiana Code Section 9-30-5-1 states:

(a) A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100) milliliters of the person's blood; or (2) two hundred ten (210) liters of the person's breath; commits a Class C misdemeanor. (b) A person who operates a vehicle with an alcohol concentration equivalent to at least fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100) milliliters of the person's blood; or (2) two hundred ten (210) liters of the person's breath; commits a Class A misdemeanor. (c) A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's body commits a Class C misdemeanor. (d) It is a defense to subsection (c) that the accused person consumed the controlled substance under a valid prescription or order of a practitioner (as defined in IC 35-48-1) who acted in the course of the practitioner's professional practice. The record does not include a copy of the charging information, so it is not clear which statute was used to charge him. The fact that he was charged with a class A misdemeanor suggests that he was charged under Indiana Code Section 9-30-5-2. Indiana Code Section 9-30-5-1(c) makes operating a vehicle with a controlled substance in the person's body a class C misdemeanor. An offense under Indiana Code Section 930-5-1 may be a class A misdemeanor if the quantity of alcohol exceeds a certain threshold, but this section does not contain a similar enhancement based on the quantity of drugs. Weaver does not respond to the State's argument that Indiana Code Section 9-30-5-2 is the pertinent provision.
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(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor. (b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person. Indiana Code Section 9-13-2-86 defines intoxication in pertinent part as under the influence of alcohol or a controlled substance "so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties." Impairment can be established by evidence of: (1) the consumption of a significant amount of alcohol or drugs; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol or drugs; (5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech. Fought v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008). The element of endangerment can be established by evidence showing that the defendant's condition or operating manner could have endangered any person, including the public, the police, or the defendant. Endangerment does not require that a person other than the defendant be in the path of the defendant's vehicle or in the same area to obtain a conviction. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009) (citations omitted), aff'd 929 N.E.2d 196 (Ind. 2010). The evidence favorable to the judgment demonstrates that Weaver was intoxicated. He had poor balance, slurred speech, bloodshot and dilated eyes, and poor memory, and he failed a field sobriety test. In addition, Weaver crashed his vehicle, endangering himself and his passenger. This is sufficient evidence to establish an offense under Indiana Code Section 9-30-5-2. A person commits the offense of public intoxication if the person is "in a public place or a place of public resort in a state of intoxication caused by the person's use of alcohol or a
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controlled substance (as defined in IC 35-48-1-9)." Ind. Code

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