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

Dori Newman

Newman & Newman, PC

Noblesville, Indiana

ATTORNEYS FOR APPELLEE

Gregory F. Zoeller

Attorney General of Indiana

Lyubov Gore

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Richard McCrumb,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

July 13, 2015

Court of Appeals Case No.

29A05-1412-CR-583

Appeal from the Hamilton Superior 

Court 

The Honorable Gail Z. Bardach, 

Judge

Case No. 29D06-1308-CM-7197

Vaidik, Chief Judge.

Case Summary

[1] Richard McCrumb appeals his Class C misdemeanor conviction of operating a 

motorboat with an alcohol concentration equivalent (ACE) of at least .08, 

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arguing that the evidence is insufficient to prove that he operated a “motorboat”

within the meaning of the statute. Because the evidence is sufficient to show 

that McCrumb’s jet ski is a “motorboat,” we affirm his conviction. 

Facts and Procedural History

[2] The facts most favorable to the verdict reveal that in August 2013, Indiana 

Department of Natural Resources Officer Mark Baker was on patrol at Morse 

Reservoir in Hamilton County when he observed McCrumb operating a 

“personal watercraft”—commonly referred to as a jet ski—in an idle zone near 

Carrigan Road bridge exceeding the idle speed. Tr. p. 147-48. Officer Baker 

decided to watch McCrumb to see if he would slow down. Id. at 148. As 

Officer Baker watched McCrumb, a boat coming from the other direction yelled

“[i]dle speed” in order to get McCrumb to slow down. Id. McCrumb, 

however, “goosed the throttle a couple times,” which meant he “gave it a 

couple quick blasts,” and then sped up while still in the idle zone. Id. at 148-49. 

Officer Baker turned on his red and blue emergency lights and followed 

McCrumb toward the south end of the reservoir. Id. at 150. McCrumb did not 

notice Officer Baker until he came to a stop in a cove. 

[3] As McCrumb came to a stop, his personal watercraft tipped over, putting him 

and his passenger into the water. At that point, McCrumb noticed Officer

Baker. Officer Baker told McCrumb why he stopped him, and asked McCrumb

why he was exceeding the idle speed in an idle zone. McCrumb told the officer

that he was experiencing some “mechanical difficulties,” and that he had to 

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speed up to stay upright. Id. at 151. McCrumb “uprighted” his personal 

watercraft and got back on it. Id. As they were talking face-to-face, Officer 

Baker detected an odor of alcohol coming from McCrumb. Id. Officer Baker 

asked McCrumb if he had consumed any alcohol, and McCrumb responded 

that he had drunk three sixteen-ounce beers. Officer Baker informed McCrumb 

that although it is not illegal to consume alcohol while on a boat, it is illegal to 

operate a boat while legally intoxicated. Officer Baker asked McCrumb if he 

would mind stepping onto his boat to perform a few tests to ensure he was safe 

to continue operating his personal watercraft that day. Id. at 152. McCrumb 

agreed.

[4] Officer Baker administered four standardized field-sobriety tests for people who 

are seated (as opposed to standing)—horizontal gaze nystagmus, finger-to-nose, 

palm pat, and hand coordination. Based on McCrumb’s performance on these

tests and Officer Baker’s experience and training, he concluded that McCrumb 

was intoxicated. Id. at 171. McCrumb told Officer Baker, “Should I have been 

driving? Absolutely not.” Id. at 187. Officer Baker read McCrumb Indiana’s

implied-consent law, which gave McCrumb the opportunity to consent to a 

chemical test or have his driver’s license suspended for a year. McCrumb 

consented to the chemical test. Officer Baker then transported him to the 

Hamilton County Jail to administer the DataMaster certified breath test, which 

yielded a result of .09. Id. at 186. 

[5] The State charged McCrumb with Count I: Class C misdemeanor operating a 

motorboat with an ACE of at least .08 and Count II: Class C misdemeanor 

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operating a motorboat while intoxicated. Appellant’s App. p. 5. In October 

2014, a jury trial was held. Final Instruction No. 11 defined “motorboat” as “a 

watercraft that is equipped with an internal combustion, a steam, or an 

electrical motor or engine that is inboard or outboard; or propelled by any 

mechanical means. The term includes a personal watercraft.” Id. at 112; see 

also Tr. p. 261. McCrumb was found guilty of Count I: Class C misdemeanor 

operating a motorboat with an ACE of at least .08 and not guilty of Count II. 

Tr. p. 271. The trial court sentenced McCrumb to sixty days in the Hamilton 

County Jail, with fifty-two days suspended and eight days served. Appellant’s 

App. p. 129. 

[6] McCrumb now appeals. 

Discussion and Decision

[7] McCrumb contends that the evidence is insufficient to sustain his conviction for

Class C misdemeanor operating a motorboat with an ACE of at least .08. On a 

challenge to the sufficiency of evidence to support a conviction, a reviewing 

court does not reweigh the evidence or judge the credibility of the witnesses. 

McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005). This Court respects the 

jury’s exclusive province to weigh conflicting evidence. Id. We consider only 

the evidence most favorable to the verdict. Id. We must affirm if the evidence 

and reasonable inferences drawn from the evidence could have allowed a 

reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. 

Id. 

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[8] In order to convict McCrumb of Class C misdemeanor operating a motorboat 

with an ACE of at least .08 as charged here, the State must have proved that 

McCrumb operated a “motorboat” with an ACE of at least .08 grams of alcohol 

per 210 liters of his breath. Ind. Code § 35-46-9-6(a)(1)(B).

1

 McCrumb argues 

that the State did not prove that he operated a “motorboat” within the meaning 

of the statute because “there was no evidence as to any motor function at trial; 

including the size of the motor.” Appellant’s Br. p. 9.

[9] Indiana Code section 35-46-9-3 defines “motorboat” as follows:

(a) As used in this chapter, “motorboat” means a watercraft (as 

defined in IC 14-8-2-305) propelled by:

(1) an internal combustion, steam, or electrical inboard or 

outboard motor or engine; or

(2) any mechanical means.

(b) The term includes the following:

(1) A sailboat that is equipped with a motor or an engine 

described in subsection (a) when the motor or engine is in 

operation, whether or not the sails are hoisted.

(2) A personal watercraft (as defined in IC 14-8-2-202.5).

(Emphasis added). Indiana Code section 14-8-2-202.5, in turn, defines 

“personal watercraft” as a watercraft:

(1) whose primary source of motive power is an inboard motor 

powering a water jet pump; and

1 This statute was amended effective July 1, 2014, but this section was unchanged.

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(2) that is designed to be operated by a person who sits, stands, or 

kneels on the surface of the watercraft rather than sitting or standing 

inside the watercraft.

[10] Here, the record shows that McCrumb’s jet ski satisfies the definition of 

“motorboat.” Officer Baker testified that when McCrumb was operating his 

personal watercraft—also known as a jet ski—he “goosed the throttle” a couple 

times, giving it a “quick blast.” This supports the conclusion that McCrumb’s 

jet ski is primarily powered by a motor. Moreover, the fact that McCrumb’s jet 

ski traveled at different speeds and was experiencing “mechanical difficulties” 

further supports the conclusion that it is powered by a motor. In addition, 

McCrumb’s jet ski required him to either stand or sit on the surface of the 

watercraft—as opposed to inside the watercraft. Despite McCrumb’s argument 

on appeal, more specificity—such as the size of the motor—is not required. 

Accordingly, the evidence is sufficient to prove that McCrumb’s jet ski is a 

personal watercraft, which is defined as a “motorboat” under the statute. See 

Davis v. LeCuyer, 849 N.E.2d 750, 754 (Ind. Ct. App. 2006) (acknowledging that

a jet ski is a personal watercraft in the context of a negligence suit), trans. denied. 

We therefore affirm McCrumb’s conviction for Class C misdemeanor operating 

a motorboat with an ACE of at least .08.

[11] Affirmed.

Kirsch, J., and Bradford, J., concur.

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