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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
Jun 22 2011, 9:16 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JAMES A. SHOAF Columbus, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana RYAN D. JOHANNINGSMEIER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
TODD A. HARMON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 03A01-1011-CR-630

APPEAL FROM THE BARTHOLOMEW SUPERIOR COURT The Honorable Kathleen T. Coriden, Judge Cause No. 03D02-1001-FD-12

June 22, 2011 MEMORANDUM DECISION - NOT FOR PUBLICATION FRIEDLANDER, Judge

Todd A. Harmon appeals his conviction for class D felony Operating a Vehicle While Intoxicated.1 He presents as the sole issue on appeal the sufficiency of the evidence supporting his conviction. We affirm. The facts favorable to the conviction are that just before 2:30 a.m. on December 27, 2009, Sergeant Kris Weisner of the Bartholomew County Sheriff's Office initiated a traffic stop of Harmon for speeding. Upon approaching Harmon, who had already exited his vehicle, Sgt. Weisner observed that Harmon had unsure balance and some difficulty walking. He also noticed that Harmon's eyes were red, glassy, and dazed. Sgt. Weisner could smell alcoholic beverage on Harmon's breath. Harmon admitted that he had been drinking earlier in the evening. Sgt. Weisner proceeded to administer three field sobriety tests, and Harmon failed each test. Believing that Harmon was intoxicated, Sgt. Weisner informed Harmon of the implied consent law and offered a certified breath test. Harmon agreed and was promptly transported to the Sheriff's Office. A certified breath test taken at 3:05 a.m. revealed an alcohol concentration equivalent (ACE) of .08. On January 5, 2010, the State charged Harmon with operating a vehicle while intoxicated (OWI) and operating a vehicle with an ACE of at least .08. The State sought elevation of both counts from class C misdemeanors to class D felonies based on a prior OWI conviction. At the conclusion of the jury trial on September 27, 2010, the jury found Harmon guilty of both class C misdemeanor counts: OWI and operating a vehicle with an ACE of at

Ind. Code Ann.

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