Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 1 of 13

MEMORANDUM DECISION

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

Valerie K. Boots

Kelly M. Starling

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Rita Taylor,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

April 1, 2020

Court of Appeals Case No.

19A-CR-2517

Appeal from the Marion Superior 

Court

The Honorable David Certo, Judge

Trial Court Cause No.

49G12-1809-CM-33248

Riley, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 2 of 13

STATEMENT OF THE CASE

[1] Appellant-Defendant, Rita Taylor (Taylor), appeals her conviction and sentence 

for operating a vehicle while intoxicated endangering a person, a Class A 

misdemeanor, Ind. Code § 9-30-5-2(b).

[2] We affirm in part, reverse in part, and remand for further proceedings.

ISSUES

[3] Taylor presents this court with two issues, which we restate as:

(1) Whether the State proved beyond a reasonable doubt that 

Taylor endangered a person while driving intoxicated; and 

(2) Whether the trial court abused its discretion when it imposed 

certain probation fees to be assessed on a sliding scale.

FACTS AND PROCEDURAL HISTORY

[4] At approximately 4:00 p.m. on September 5, 2018, Officer Craig Wildauer 

(Officer Wildauer) of the Indianapolis Metropolitan Police Department was on 

patrol when he observed a vehicle driven by Taylor traveling north on Denny 

Street and turning east onto 13th Street. Officer Wildauer observed that Taylor’s 

vehicle had a cracked windshield and that she was driving left of center.

[5] Officer Wildauer initiated a traffic stop. When he spoke to Taylor, Officer 

Wildauer noted a strong odor of alcohol emanating from her, her eyes were 

glassy and bloodshot, her speech was slurred, and her balance was unsteady, all 

of which he recognized through his training and experience as indicia of 
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intoxication. Officer Wildauer administered Taylor a horizontal gaze 

nystagmus test, which she failed. Officer Wildauer concluded that Taylor was 

impaired.

[6] Officer Wildauer advised Taylor of Indiana’s implied consent law and her 

Miranda rights. Taylor told Officer Wildauer that she had consumed three 

sixteen-ounce cans of beer and that she had taken Oxycodone at 2:00 p.m. 

Taylor consented to a chemical test, which indicated the presence of alcohol 

and Oxycodone. 

[7] On September 29, 2018, the State filed an Information, charging Taylor with 

Class A misdemeanor operating a vehicle while intoxicated endangering a 

person and Class A misdemeanor operating a vehicle with an ACE of .08 or 

more. On August 14, 2019, the trial court held Taylor’s bench trial. Officer 

Wildauer testified that Denny Street is narrow and does not have road lines but 

that it has adequate room for two vehicles to pass each other. The officer 

related that when cars are parked along the street, moving vehicles must travel 

left of center to get around a parked car. Otherwise, “when there are no 

vehicles there, a vehicle, typically you’ll stay on your right side of the roadway. 

You wouldn’t be in the northbound part of the lane traveling up the north side 

of the road. That’s left of center.” (Transcript p. 15). According to Officer 

Wildauer, Taylor was not swerving as she drove on Denny Street, but she was 

not maintaining her lane of travel “when available[,]” which is a traffic 

infraction. (Tr. p. 13). The trial court granted Taylor’s motion to dismiss the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 4 of 13

charge of operating with an ACE of .08 or more but found Taylor guilty of 

operating a vehicle while intoxicated endangering a person. 

[8] On September 26, 2019, the trial court held Taylor’s sentencing hearing. 

Taylor’s counsel asked that the trial court consider waiving or lowering Taylor’s 

fees because she is on a fixed income and had lost her Medicaid benefit. The 

trial court sentenced Taylor to 365 days, all suspended to time served and 

probation. The trial court ordered probation with “the standard conditions and 

fees.” (Tr. p. 40). The trial court also stated that it would “ask that the 

probation department place you on a sliding scale concerning fees. They will 

ask you to pay what they think you’re able to pay. But, if money is left over at 

the end of the case, we can talk about it here.” (Tr. p. 41). The trial court 

stated that it imposed a $400 assessment fee and a mandated $200 

countermeasure fee. The trial court declined to impose $185.50 in court costs, 

provided that Taylor was not arrested during her probation period. The trial 

court also ordered Taylor to attend a destructive decision panel, undergo a 

substance abuse evaluation, follow all substance abuse treatment 

recommendations, attend an impact panel, and refrain from the use of alcohol 

and any medication for which she did not have a prescription. Taylor’s 

probation was to become non-reporting after she completed the terms imposed 

and paid all fees.

[9] The trial court’s written sentencing order provided for the following probation 

fees:
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Adult Probation Administrative Fee $50.00

Adult Probation Monthly and Initial User Fee $281.30

Alcohol and Drug Counter Fee – County $150.00

Alcohol and Drug Countermeasures Fee $50.00

Alcohol/Drug Services Program User Fee $400.00

Probation User Fee – Clerk’s 3% $8.70

Total $940.00

(Appellant’s App. Vol. II, p. 13). 

[10] Taylor now appeals. Additional facts will be provided as necessary. 

DISCUSSION AND DECISION

I. Sufficiency of the Evidence

A. Standard of Review

[11] Taylor challenges the sufficiency of the evidence supporting the endangerment 

element of the offense. It is well-established that when we review the 

sufficiency of the evidence to support a conviction, we consider only the 

probative evidence and reasonable inferences supporting the verdict. Drane v. 

State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an appellate court to 

assess witness credibility or to weigh the evidence. Id. We will affirm the 

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

proven beyond a reasonable doubt. Id. 
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B. Endangerment

[12] The State charged Taylor with Class A misdemeanor operating a vehicle while 

endangering a person. In order to prove the offense, the State was required to 

show that Taylor operated her vehicle “in a manner that endangere[d] a 

person.” I.C. § 9-30-5-2(b). The State may prove the endangerment element by 

showing that the defendant was operating the vehicle in a condition or manner 

that could have endangered any person, including the public, the police, or the 

defendant. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009), adopted by

929 N.E.2d 196 (Ind. 2010). 

[13] In Outlaw, which Taylor likens to her case, an officer stopped Outlaw’s car after 

observing that it had a non-illuminated license plate light. Id. at 380. The 

officer initiated a traffic stop and observed indicia of intoxication when 

interacting with Outlaw. Id. Outlaw was convicted of Class A misdemeanor 

operating his vehicle while intoxicated endangering a person, and, on appeal, 

Outlaw challenged the evidence supporting the endangerment element of the 

offense. Id. at 381. This court held that the State could not rely merely on 

evidence of a defendant’s intoxication to prove endangerment and that the State

had failed to prove endangerment because the stop of Outlaw’s vehicle was 

based on “a non-illuminated license plate rather than erratic or unlawful 

driving[.]” Id. at 381-82 (emphasis added). The court reasoned that, apart from 

Outlaw’s intoxication, there was no evidence that Outlaw had operated his 

vehicle in a manner that endangered himself or anyone else. Id. at 382. 
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[14] Taylor also directs our attention to Poortenga v. State, 99 N.E.3d 691, 698 (Ind. 

Ct. App. 2018), in which the court also found insufficient evidence of 

endangerment where the reason for the traffic stop was a non-illuminated 

license plate and a non-functioning headlight. However, we find Outlaw and 

Poortenga to be distinguishable. Here, Officer Wildauer stopped Taylor because, 

in addition to having a cracked windshield, she was driving left of center, which 

the trial court could have reasonably inferred caused a danger to the public. See 

Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011) (finding sufficient

evidence of endangerment where officer testified that he saw Staten drive left of 

center and through a three-way stop), trans. denied. Taylor argues that Staten is 

distinguishable because she only committed one moving violation instead of 

two and that her “action of driving left of center, alone, is not sufficient to prove 

endangerment.” (Appellant’s Br. p. 13). However, Taylor provides us with no 

authority for that proposition. While we agree with Taylor that a cracked 

windshield did not prove endangerment, we conclude that her act of driving left 

of center on a public street did. 

[15] Taylor also directs our attention to the fact that the street was narrow, had no 

lane markings, and had cars parked on both sides of the street. Taylor argues 

that under those conditions, driving left of center is “regularly the safest 

option.” (Appellant’s Br. p. 13). Taylor’s argument ignores evidence in the 

record that there where there were no cars parked, there was adequate space to 

maintain a proper lane and that Taylor did not do so when that space was 

available. Taylor essentially requests that we consider evidence that does not 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 8 of 13

support the trial court’s judgment and reweigh the evidence, which is contrary 

to our standard of review. See Drane, 867 N.E.2d at 146. Accordingly, we 

conclude that the State produced sufficient evidence that Taylor endangered a 

person. 

II. Probation Fees

A. Standard of Review

[16] Taylor next contends that the trial court abused its discretion when it imposed 

probation fees. As a general matter, sentencing decisions include decisions to 

impose fees and costs. Amick v. State, 126 N.E.3d 909, 911 (Ind. Ct. App. 

2019). We review a trial court’s sentencing decisions for an abuse of discretion. 

Id. An abuse of discretion occurs when the trial court’s decision is clearly 

against the logic and effect of the facts and circumstances before it, or the 

reasonable, probable, and actual deductions to be drawn from those facts and 

circumstances. McElroy v. State, 865 N.E.2d 584, 588 (Ind. 2007). 

B. Presence at Sentencing

[17] Taylor’s first challenge to the trial court’s imposition of probation fees is that 

she was not present when the trial court imposed some of those fees because the 

trial court’s written sentencing order delineated certain fees that it did not 

mention at the sentencing hearing. As a general rule, a defendant has a 

statutory and common law right to be present at sentencing. See I.C. § 35-38-1-

4(a); Cleff v. State, 565 N.E.2d 1089, 1091 (Ind. Ct. App. 1991), trans. denied. 
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[18] Taylor was present in court when the trial court imposed its 365-day sentence, 

all of which was suspended to time served and probation. She was also present 

when the trial court ordered probation with “the standard conditions and fees.” 

(Tr. p. 40). Taylor does not argue that the fees contained in the trial court’s 

written order but not specifically mentioned at sentencing were outside of 

standard and authorized probation fees. Inasmuch as Taylor points out a 

discrepancy between the trial court’s oral and written sentencing statements, 

such discrepancies are resolved by examining the trial court’s oral and written 

sentencing statements to discern its true intent. McElroy, 865 N.E.2d at 589. 

We have the option of crediting the statement that accurately reflects the trial 

court’s intent or remanding for clarification. Id. Taylor does not argue that the 

trial court’s written order fails to reflect its true intent, and we conclude from 

the trial court’s oral sentencing statement that it intended to impose “standard”

probation fees and that those are the additional fees that appeared in its written 

sentencing order. (Tr. p. 40). In short, we find no abuse of the trial court’s 

discretion. 

C. Indigency Hearing and Sliding Scale

[19] Taylor also contends that the trial court abused its discretion when it imposed 

probation fees without first conducting an indigency hearing and that its order 

that her probation fees be placed on a sliding scale impermissibly delegated 

authority to the probation department to assess her fees. We address each 

argument in turn.
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[20] Indiana Code section 33-37-2-3(a) provides that when a trial court imposes 

costs, it “shall conduct a hearing to determine whether the convicted person is 

indigent.” The statute also allows a trial court to impose costs but to suspend 

payment of some or all of those costs until the defendant has completed some 

or all of her sentence. I.C. § 33-37-2-3(b). If a trial court has suspended some 

or all costs, it “shall conduct a hearing at the time the costs are due to determine 

whether the convicted person is indigent.” Id. 

[21] Here, the trial court did not conduct an indigency hearing. The trial court

imposed probation fees and told Taylor that it would ask the probation 

department to place her fees on a sliding scale, but it also stated that “if money 

is left over at the end of the case, we can talk about it here.” (Tr. p. 41). It is 

unclear to us from these statements whether the trial court intended to suspend 

some or all of Taylor’s obligation to pay probation fees until she had completed 

serving her sentence. Therefore, we vacate that portion of the trial court’s 

sentencing order imposing probation fees and remand to the trial court so that it 

may clarify its intention and hold an indigency hearing if it imposed probation 

fees without suspending Taylor’s obligation to pay. 

[22] As to Taylor’s argument that the trial court impermissibly delegated to the 

probation department its authority to assess fees, we agree with Taylor’s 

proposition that it is the trial court’s, not the probation department’s, duty to 

assess fees. See I.C. § 35-38-2-1(e) (“In addition to any other conditions of 

probation, the court may order each person convicted of a misdemeanor to pay

[fees].”). Here, the trial court ordered probation fees but also stated that it 
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would “ask that the probation department place you on a sliding scale 

concerning fees.” (Tr. p. 41). There is no information in the record regarding 

the nature of the sliding scale or how it is administered, so we are unable to 

determine whether the trial court meant to delegate its statutory duty to the 

probation department to assess fees in this matter. Accordingly, we remand to 

the trial court to also provide it with an opportunity to clarify its intent 

regarding the application of the sliding scale to Taylor’s probation fees. 

CONCLUSION

[23] Based on the foregoing, we conclude that the State established beyond a 

reasonable doubt that Taylor operated her vehicle in a manner that endangered 

a person. We also conclude that the trial court did not impermissibly sentence 

Taylor in her absence, but we remand to the trial court to clarify its intent

regarding whether it suspended the payment of any portion of Taylor’s 

probation fees and regarding the application of the sliding scale to those fees. 

[24] Affirmed in part, reversed in part, and remanded for further proceedings. 

Mathias, J. concurs

Tavitas, J. concurs and dissents with separate opinion
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 12 of 13

IN THE

COURT OF APPEALS OF INDIANA

Rita Taylor,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

Court of Appeals Case No.

19A-CR-2517

Tavitas, Judge, concurring and dissenting

[25] I concur with the majority’s determination that the evidence is sufficient to 

sustain Taylor’s conviction for operating a vehicle while intoxicated 

endangering a person, a Class A misdemeanor. I respectfully dissent, however, 

regarding the majority’s reversal of the probation fees imposed by the trial 

court. 

[26] The trial court here imposed probation fees and ordered the probation 

department to “place [Taylor] on a sliding scale concerning fees.” Tr. Vol. II p. 

41. Taylor now argues that the trial court should have conducted an indigency 

hearing and could not “delegate the determination of Taylor’s ability to pay fees 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2517 | April 1, 2020 Page 13 of 13

to the probation department” by placing Taylor on a “sliding scale.” 

Appellant’s Br. p 17. 

[27] This procedure, however, was authorized in Johnson v. State, 27 N.E.3d 793 

(Ind. Ct. App. 2015). In Johnson, the trial court imposed probation fees and 

ordered “a sliding fee scale for the probation fees, but delayed making an 

indigency determination until more information regarding Johnson’s financial 

situation came to light.” Johnson, 27 N.E.3d at 794. This Court held:

Johnson argues that the trial court abused its discretion when it 

ordered him to pay $340 in probation fees without first 

conducting an indigency hearing. Johnson rightly asserts that, 

under Indiana Code section 33-37-2-3, if a trial court imposes 

costs on a defendant, a trial court is required to conduct an 

indigency hearing. However, “the statute does not otherwise 

dictate when the hearing is to be held.” [Berry v. State], 950 

N.E.2d [798,] 802 (Ind. Ct. App. 2011); Ind. Code § 33-37-2-3. A 

trial court acts within its authority when it chooses to wait and 

see if a defendant can pay probation fees before it finds the 

defendant indigent. See Ind. Code ch. 35-38-2 (no language in 

this chapter requires the trial court to conduct an indigency 

hearing before or directly after ordering probation fees). That 

being said, the trial court has a duty to conduct an indigency 

hearing at some point in time. I.C. § 33-37-2-3. At the latest, an 

indigency hearing for probation fees should be held at the time a 

defendant completes his sentence. Consequently, in this case, on 

the completion of Johnson’s sentence, the trial court should 

conduct an indigency hearing to assess Johnson’s ability to pay 

probation fees.

Id. at 794-95 (footnote omitted). Given our holding in Johnson, I would affirm 

the trial court’s decision in all respects.