Court of Appeals of Indiana | Memorandum Decision 49A02-1701-CR-190 | July 31, 2017 Page 1 of 12

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

Megan Shipley

Marion County Public Defender Agency

Indianapolis, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General

Jodi Kathryn Stein

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Noe Joaquin,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 31, 2017

Court of Appeals Case No.

49A02-1701-CR-190

Appeal from the Marion Superior 

Court

The Honorable David Hooper, 

Magistrate

Trial Court Cause No.

49G08-1604-CM-14854

Crone, Judge.
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Case Summary

[1] Following a jury trial, Noe Joaquin appeals his conviction for class A 

misdemeanor operating a vehicle while intoxicated in a manner that 

endangered a person. He argues that the trial court erred in instructing the jury 

on endangerment. We hold that Joaquin waived any claim of error and that 

any error was not fundamental. Consequently, we affirm.

Facts and Procedural History

[2] Around 9:30 p.m. on April 18, 2016, David Nugent walked across Michigan 

Street in Indianapolis. The speed limit in that area was thirty-five miles per 

hour. A van passed by Nugent “fast enough that [he could] feel the breeze 

coming off and it [blew his] shirt up[.]” Tr. at 31. Nugent “looked down to 

light a cigarette,” and “as soon as [he] lit it [he] heard boom.” Id. at 26. He 

turned to see the van hit a parked car so hard that the car “went up, came 

down[,]” and spun 180 degrees. Id. The van flipped onto its side. Nugent ran 

over and pulled the driver, Joaquin, out of the van. Joaquin “was bleeding 

around his neck or the back of his head.” Id. at 28. Nugent used his shirt to try 

to slow the bleeding. He talked to Joaquin, “trying to keep him responsive.” 

Id. A passing police car did “a u-turn[,]” and the officer told Nugent, “[W]e’ll 

take care of it from here.” Id. An ambulance took Joaquin to the hospital.

[3] Nugent saw that Joaquin’s van had struck four parked vehicles, and he 

observed skid marks that traveled “straight and then went to the right” toward 

the vehicles. Id. at 38. A responding officer noticed that Joaquin’s eyes were 
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“red and glassy[,]” and he “could smell the odor of an alcoholic beverage on 

[Joaquin’s] breath.” Id. at 90, 66. The officer obtained a warrant for a blood 

draw, which occurred at 10:42 p.m. Joaquin’s alcohol concentration was .189 

grams per 100 milliliters of blood, or nearly two and a half times the legal limit.

[4] The State charged Joaquin with class A misdemeanor operating a vehicle while 

intoxicated in a manner that endangered a person, class A misdemeanor 

operating a vehicle with an alcohol concentration of .15 or more, and class C 

misdemeanor operating a vehicle without ever receiving a license. Joaquin pled 

guilty to the third count before his jury trial. The jury found him guilty on the 

first count and deadlocked on the second count. The trial court declared a 

mistrial on the second count, and the State dismissed it. The court sentenced 

Joaquin to 365 days on the first count, with 363 days suspended to probation, 

and to a concurrent two-day term on the third count. Joaquin now appeals.

Discussion and Decision

[5] Joaquin was convicted of operating while intoxicated pursuant to Indiana Code 

Section 9-30-5-2, which reads, “(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 intoxicated as being under the 

influence of alcohol or another substance “so that there is an impaired 

condition of thought and action and the loss of normal control of a person’s 

faculties.”
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[6] At the close of evidence, the State tendered the following final jury instruction 

on endangerment:

The ”endangerment" portion of the definition of intoxication 

does not require that the State prove that a person other than the 

defendant was actually in the same area as the automobile to 

support a conviction. State v. Krohn (1988), Ind. App., 521 

N.E.2d 374, 377. Rather, it can be established by showing that 

defendant’s condition or driving manner could have endangered 

any person, including the public, the police, or the driver. Id. 

Therefore, proof that the defendant’s condition renders driving 

unsafe is sufficient to establish endangerment. Id. State v. Shaw, 

595 N.E[.]2d 743, 746 (Ind. Ct. App. 1992), reh’g denied

Appellant’s App. at 74. Joaquin objected to the instruction because “it’s based 

on facts from a different case.” Tr. at 201-02. The trial court stated that it 

would revise the instruction to read as follows: “[E]ndangerment can be 

established by showing that the defendant’s condition or driving manner could 

have endangered any person, including the public, the police, or the driver.” Id. 

at 202; see also Appellant’s App. at 62 (court’s final instruction number 4). 

Joaquin did not object to the revision. The court then gave the parties an 

opportunity to review all of its proposed final instructions and asked if they had 

any objections. Joaquin responded, “No.” Tr. at 204.

[7] On appeal, Joaquin contends that the trial court’s instruction “is an incorrect 

statement of the law” because “it is from a case that has been abrogated by 

statute.” Appellant’s Br. at 11. In response, the State argues that Joaquin has 

waived any claim of error because he failed to object to the trial court’s revision 
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of the State’s instruction. We agree. “It is well settled that the failure to object 

to a jury instruction given by the trial court waives the issue for review.” Quiroz 

v. State, 963 N.E.2d 37, 42 (Ind. Ct. App. 2012), trans. denied.

1

 The State also 

argues waiver based on Joaquin’s new claim of instructional error on appeal. 

“It is well-settled law in Indiana that a defendant may not argue one ground for 

objection at trial and then raise new grounds on appeal.” Gill v. State, 730 

N.E.2d 709, 711 (Ind. 2000). Consequently, Joaquin “has waived this claim of 

error for appellate review” on this ground as well. Id.

[8] Joaquin argues that even if we find waiver, we should reverse his conviction 

because the trial court committed fundamental error in giving the instruction. 

Fundamental error is an extremely narrow exception to the waiver rule where 

the defendant faces the heavy burden of showing that the alleged error is so 

prejudicial to his rights as to make a fair trial impossible. Carter v. State, 31 

N.E.3d 17, 27 (Ind. Ct. App. 2015), trans. denied. “In considering whether a 

claimed error denied the defendant a fair trial, we determine whether the 

resulting harm or potential for harm is substantial.” Baker v. State, 948 N.E.2d 

1169, 1178-79 (Ind. 2011). Harm is not shown by the fact that the defendant 

was ultimately convicted, but by whether his right to a fair trial was 

detrimentally affected by the denial of procedural opportunities for the 

ascertainment of truth to which he would have been entitled. Id. at 1179. We 

 

1

Joaquin did not indicate whether he objected to the State’s instruction in whole or in part, nor did he 

indicate that the trial court’s revision failed to alleviate his concerns. One could reasonably infer that Joaquin 

was satisfied with the revision because he stated that he had no objection to the court’s proposed instructions.
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will not reverse for an instructional error where the conviction is clearly 

sustained by the evidence and the jury could not properly have found otherwise. 

Hayden v. State, 19 N.E.3d 831, 838 (Ind. Ct. App. 2014), trans. denied (2015).

[9] To the extent the instruction suggests that endangerment could be established 

by evidence of Joaquin’s intoxicated condition alone, we agree with Joaquin 

that it is problematic. See Outlaw v. State, 929 N.E.2d 196, 191 (Ind. 2010) 

(affirming this Court’s rejection of State’s argument that “evidence of 

‘intoxication’ should be sufficient to prove ‘endangerment’” under current 

version of Ind. Code § 9-30-5-2). But the State presented overwhelming 

evidence that Joaquin’s driving manner could have endangered—and did in fact 

endanger—any person, including himself. On a stretch of Michigan Street with 

a speed limit of thirty-five miles per hour, Joaquin drove his van past Nugent 

fast enough to generate a breeze and blow Nugent’s shirt up. Joaquin then 

plowed his van into a parked car with enough force to lift the car in the air and 

spin it 180 degrees. The van flipped onto its side, and Nugent had to pull the 

bleeding Joaquin from the vehicle. Based on this evidence, the jury could not 

properly have found anything other than that Joaquin’s driving manner 

endangered himself. Therefore, we affirm his conviction.

[10] Affirmed.

Barnes, J., concurs.

Baker, J., dissents with opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Noe Joaquin,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

Court of Appeals Case No.

49A02-1701-CR-190

Baker, Judge, dissenting.

[11] I respectfully dissent. First, with respect to waiver, a party seeking to preserve 

an alleged instructional error for appeal must identify the specific grounds for 

objection at trial. Kane, 976 N.E.2d at 1231. The purpose of this requirement is 

to alert the trial court and avoid potential error. Id. In Kane, the defendant 

argued on appeal that a jury instruction was an incorrect statement of law. At 

trial, however, the defendant’s attorney had made only a “general objection” to 

the instruction. Id. The trial court then discussed the instruction with the 
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parties and ultimately rewrote it. In finding that the defendant’s general 

objection preserved the issue for appeal, our Supreme Court emphasized that 

“the trial judge did not simply adopt the State’s proposed instruction; rather, he 

changed it to mirror language that, in his estimation, had received judicial 

approval . . . .” Id. at 1231-32. In other words, where a general objection 

results in the trial court giving “‘specific consideration to whether the proposed 

instruction was a correct statement of law,’” the error is preserved. Id. at 1231 

(quoting McDowell v. State, 885 N.E.2d 1260, 1262 (Ind. 2008)).

[12] In this case, Joaquin’s attorney did not object with specificity, indicating an 

argument that the instruction was an incorrect statement of the law. 

Notwithstanding the lack of an objection to that specific effect, however, the 

trial court clearly considered the issue, even rewriting the State’s proffered 

instruction in an attempt to ensure that the instruction was a correct statement 

of law. Under these circumstances, I would find that the issue was preserved 

for appellate review.

[13] Even if the objection was insufficient to preserve the issue, however, I would 

find that the erroneous jury instruction constituted fundamental error because it 

was “so prejudicial to the rights of a defendant as to make a fair trial 

impossible.” Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015). The State’s proposed 

jury instruction was taken from State v. Shaw, which applied and interpreted an 

old and substantively different version of the relevant statute. 595 N.E.2d 743 

(Ind. Ct. App. 1992), superseded by statute). Before 2001, the offense of operating 

a vehicle while intoxicated was defined as follows: “A person who operates a 
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vehicle while intoxicated commits a Class A misdemeanor.” I.C. § 9-30-5-2 

(2000). “Intoxicated,” in turn, was defined as being under the influence of 

alcohol or another substance “such that there is an impaired condition of 

thought and action and the loss of normal control of a person’s faculties to such 

an extent as to endanger any person.” I.C. § 9-13-2-86 (2000) (emphasis added). 

Before 2001, therefore, endangerment was part of the intoxication element 

rather than a separate element, and the State could prove endangerment merely 

by proving that the defendant was intoxicated. E.g., Fletcher v. State, 649 N.E.2d 

1022, 1024 (Ind. 1995) (holding that the defendant’s admission of operating 

while intoxicated “amounts to an admission that his condition was such as to 

endanger others on the road”).

[14] In 2001, the General Assembly “substantially altered the OVWI statutes by 

redefining intoxication and establishing two separate misdemeanor classes for 

operating a vehicle while intoxicated.” Outlaw v. State, 918 N.E.2d 379, 381 

(Ind. Ct. App. 2009), expressly adopted by Outlaw v. State, 929 N.E.2d 196, 196 

(Ind. 2010). The 2001 amendments made “endangerment” a separate element 

that is necessary to elevate the offense from a Class C to a Class A 

misdemeanor and removed the requirement of endangerment from the 

definition of intoxication. Id. at 381. The current version of the statute, which 

was in effect at the time Joaquin committed the alleged offense, provides that 

operating a vehicle while intoxicated is a Class A misdemeanor “if the person 

operates a vehicle in a manner that endangers a person.” I.C. § 9-30-5-2(b).
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[15] It is well established that, “[b]y definition, the current statute requires more 

than intoxication to prove endangerment.” Outlaw, 918 N.E.2d at 382. 

Instead, the State is required to present evidence that the defendant operated the 

vehicle in a way that endangered a person—the mere condition of being 

intoxicated is insufficient. Id.

[16] Here, the jury was instructed that endangerment can be established “by 

showing that the defendant’s condition or driving manner could have endangered 

any person, including the public, the police, or the driver.” Appellant’s App. p. 

62 (emphasis added). This instruction is an incorrect statement of the law, as it 

instructs the jury that it could find that Joaquin endangered a person merely 

based upon his condition of intoxication. 

[17] The State directs our attention to Staley v. State, 895 N.E.2d 1245, 1250 (Ind. Ct. 

App. 2008), which found no error with respect to a jury instruction almost 

identical to the instruction in the present case. The Staley Court relied on the 

2003 decision of Slate v. State, 798 N.E.2d 510, 515 (Ind. Ct. App. 2003), 

superseded by statute, noting that “[a]s Staley does not present us with any new 

arguments that persuade us to revisit our opinion in Slate, we conclude, in light 

of Slate, that the trial court tendered a proper instruction to the jury.” Id. at 

1250. The Outlaw Court, however, expressly disapproved of and declined to 

follow Slate and other cases with similar holdings:

We acknowledge that prior decisions of this court have suggested 

that a showing of intoxication, without more, is adequate to 

prove endangerment. See, e.g., Slate v. State, 798 N.E.2d 510, 515 
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(Ind. Ct. App. 2003) (stating that “the endangerment element . . . 

indicates the level of impairment and the extent of lost faculties 

that must be shown to establish intoxication and to obtain a 

conviction”); Dunkley v. State, 787 N.E.2d 962, 965 (Ind. Ct. App. 

2003) (“The endangerment element was further established by 

[the defendant’s impaired] condition”). Insofar as those cases 

conflate the definition of endangerment with that of intoxication, the 

amended statutes supplant them and, as such, we do not follow them.

(Emphasis added). As noted above, our Supreme Court expressly adopted the 

opinion of this Court in Outlaw. 929 N.E.2d at 196. Consequently, Outlaw

overruled Slate and Staley, and I would decline to follow that line of cases.

[18] When an instruction misstates the law, we must “presume the error affected the 

verdict” and reverse “unless the verdict would have been the same under a 

proper instruction.” Kane, 976 N.E.2d at 1228. Put simply, “reversal is 

required if the jury’s decision may have been based upon an erroneous 

instruction.” Hernandez v. State, 45 N.E.3d 373, 378 (Ind. 2015). 

[19] At trial, Joaquin’s attorney argued that the State had not proved beyond a 

reasonable doubt that Joaquin had operated the vehicle in a manner that 

endangered a person. Nugent was not looking at the crash when it happened, 

and he testified that Joaquin’s driving was “normal” and “every day” for that 

street. Tr. p. 31. There was no expert investigation of the crash or skid marks, 

nor were there photographs of the crash site.2 Consequently, I take issue with 

 

2 The State argues that “[i]f Defendant had a rational explanation for driving in this manner, then he was free 

to present it to the jury to defend against what was presumptively unsafe driving . . . .” Appellee’s Br. p. 16. 
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the majority’s characterization of the evidence on this issue as 

“overwhelming[.]” Slip op. p. 6. Because the jury’s decision may have been 

based on the erroneous instruction, I believe we are compelled to reverse.

[20] The crux of Joaquin’s defense was that the State did not prove that the accident 

was caused by Joaquin’s driving manner; in other words, the State did not 

prove that Joaquin’s driving manner endangered a person. But the jury 

instruction on endangerment permitted the jury to side-step the issue and find 

Joaquin guilty simply because of his intoxicated condition. Therefore, the jury 

could have accepted all of Joaquin’s legal and factual arguments about 

endangerment but still have found him guilty based solely on his intoxication. 

See Hernandez, 45 N.E.3d at 378 (reversing based on an erroneous jury 

instruction because it permitted the jury to find the defendant guilty even if the 

jury believed his defense). In other words, I cannot say with certainty that the 

verdict would have been the same under a proper instruction. Therefore, I 

believe we should reverse.

 

Obviously, however, the defendant is not required to prove his innocence—it is the State’s burden to prove his 

guilt beyond a reasonable doubt.