Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 1 of 8

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

Brian A. Karle

Ball Eggleston, PC

Lafayette, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Samantha M. Sumcad

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Tawanda Nyanhongo,

Appellant-Defendant,

v. 

State of Indiana, 

Appellee-Plaintiff

June 6, 2019

Court of Appeals Case No.

18A-CR-2539 

Appeal from the Marion Superior 

Court

The Honorable Christina 

Klineman, Judge

Trial Court Cause No.

49G17-1804-F6-12536 

May, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 2 of 8

[1] Tawanda G. Nyanhongo appeals his conviction of Level 6 felony operating a 

vehicle while intoxicated with a previous conviction within five years.

1

 

Nyanhongo argues the State presented insufficient evidence to sustain his 

conviction.2

 We affirm and sua sponte remand for correction of the Abstract of 

Judgment. 

Facts and Procedural History

[2] On April 13, 2018, Nyanhongo and Yazmin Robinson went to the park to grill

and eat dinner. During dinner, Nyanhongo drank a couple beers, so Robinson 

drove them to her house. While there, Nyanhongo had trouble walking. After 

ten to fifteen minutes at the house, Nyanhongo wanted to go to the liquor store. 

Robinson offered to drive, but they left Robinson’s house with Nyanhongo 

driving the vehicle. Robinson tried to convince Nyanhongo to stop driving. 

She called 911. She also made multiple attempts to pull the keys from the 

ignition, causing the vehicle to swerve. 

[3] At approximately 11:30 p.m., Officer Harris was on his way to investigate 

Robinson’s 911 call when he observed Nyanhongo’s vehicle make a left turn, 

cross a double yellow line, and partially leave the lane of traffic. Nyanhongo 

corrected the vehicle’s path. Officer Harris then saw Nyanhongo’s vehicle 

1

 Ind. Code §§ 9-30-5-2(a), 9-30-5-3(a)(1). 

2 Nyanhongo was also convicted of Class B misdemeanor possession of marijuana. Ind. Code § 35-48-4-11. 

He received a suspended sentence of 180 days. Nyanhongo does not appeal that conviction or sentence, and 

accordingly we need not elaborate the facts and procedure related to that crime. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 3 of 8

swerve across the double yellow line a second time, and he initiated a traffic 

stop. Nyanhongo told Officer Harris that Robinson was trying to pull the keys 

out of the ignition. Officer Harris asked Nyanhongo to exit the vehicle and 

noticed a strong smell of alcohol. Nyanhongo’s eyes were glassy and 

bloodshot.

[4] Officer Alexander Redding also arrived at the scene. He noticed Nyanhongo 

leaning against the vehicle. Officer Redding administered a series of field 

sobriety tests. He conducted the horizontal gaze nystagmus test at the scene, 

and Nyanhongo failed that test. Officer Redding then transferred Nyanhongo 

to the Speedway Police Department because it was dark and raining at the 

scene. There, Officer Redding administered the walk and turn test and the onelegged stand test. Nyanhongo failed the walk and turn test but passed the onelegged stand test. Officer Redding concluded there was probable cause to 

invoke Indiana’s Implied Consent Law and offered Nyanhongo a chemical 

breath test. Nyanhongo refused the chemical breath test, so Officer Redding 

obtained a warrant authorizing a blood draw. The sample showed 

Nyanhongo’s whole body blood alcohol concentration to be in the range of .059 

to .071% (0.059 to 0.071 g/100mL). (Tr. Vol. II at 32-33.) 

[5] The State charged Nyanhongo with Class A misdemeanor operating a vehicle 

while intoxicated endangering a person, pursuant to Indiana Code section 9-30-

5-2. The State also charged Nyanhongo with a Level 6 Felony enhancement of 

that operating charge based on Nyanhongo having another conviction of 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 4 of 8

operating while intoxicated within the prior five years, pursuant to Indiana 

Code section 9-30-5-3(a)(1).3

 

[6] The court found Nyanhongo guilty of Level 6 felony operating a vehicle while 

intoxicated. The court sentenced Nyanhongo to concurrent terms of 365 days 

for operating a vehicle while intoxicated and 180 days for possession of 

marijuana. After giving Nyanhongo credit for time served, the trial court 

suspended the remainder of his sentence.

Discussion and Decision

Sufficiency of the Evidence

[7] Our standard of review for assessing sufficiency of the evidence is well-settled. 

We look only at the probative evidence and the reasonable inferences 

supporting the verdict. Love v. State, 73 N.E.3d 693, 696 (Ind. 2017). We

neither reweigh the evidence nor assess the credibility of the witnesses. Id. We 

affirm the trial court unless no reasonable fact-finder could find the elements of 

the crime proven beyond a reasonable doubt. Id. 

[8] Operating a vehicle while intoxicated with a previous conviction in the last five 

years is a Level 6 felony. Ind. Code § 9-30-5-2(a) (operating while intoxicated); 

Ind. Code § 9-30-5-3(a)(1) (enhancement for prior conviction). Nyanhongo 

3

 The State also charged Nyanhongo with Class A misdemeanor domestic battery, but it dismissed that 

charge prior to trial. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 5 of 8

does not dispute he had another conviction within the prior five years. Instead 

he argues the State presented insufficient evidence of intoxication. 

[9] Our legislature defined intoxication as “under the influence of: (1) alcohol...so 

that there is an impaired condition of thought and action and the loss of normal 

control of a person’s faculties.” Ind. Code § 9-13-2-86. This statute does not 

require separate proof of impairment of action, impairment of thought, and loss 

of control of faculties. Curtis v. State, 937 N.E.2d 868, 873-874 (Ind. Ct. App. 

2010). Rather, “impairment is established by proof of certain behaviors and 

traits evincing impairment, irrespective of whether that evidence established 

particularized impairment of action, thought, and loss of control of faculties.” 

Id. (emphasis in original). 

[10] Nyanhongo asks us to reconsider Curtis and hold the State must demonstrate

separately proof of (1) impairment of action, (2) impairment of thought, and (3) 

loss of control of faculties. We decline to do so. For one, our reasoning in 

Curtis is sound. As we explained, “a person’s unfitness to operate a vehicle, i.e., 

his impairment, is to be determined by considering his capability as a whole, 

not component by component, such that impairment of any of the three abilities 

necessary for the safe operation of a vehicle equals impairment.” Id. at 873. 

Second, we will follow our previous decisions unless provided with a strong 

justification not to do so. Lincoln Utils., Inc. v. Office of Util. Consumer Counselor, 

661 N.E.2d 562, 565 (Ind. Ct. App. 1996), reh’g denied, trans. denied. 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 6 of 8

[11] Third, Nyanhongo’s claim would fail even if we were to adopt his suggested 

interpretation of the statute. The State can demonstrate impairment by

showing: “(1) the consumption of a significant amount of alcohol; (2) impaired 

attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on 

the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred 

speech.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. 

denied. Robinson observed Nyanhongo drink alcohol and have trouble walking 

before he started driving. Nyanhongo’s eyes were glassy and bloodshot. Both 

Officer Harris and Officer Redding smelled alcohol on him. Nyanhongo had to 

lean against the vehicle for support. Nyanhongo failed two field sobriety tests, 

the horizontal gaze nystagmus test and the walk and turn test. This evidence 

demonstrates impairment of Nyanhongo’s actions, impairment of Nyanhongo’s 

thoughts, and loss of control of his faculties. See Ind. Code § 9-13-2-86 

(definition of intoxicated). 

[12] Nyanhongo notes his blood alcohol concentration was below .08. However, 

the offense with which he was charged does not require proof of a specified 

blood alcohol content. Compare Ind. Code § 9-30-5-2 (operating while 

intoxicated) with Ind. Code § 9-30-5-1 (operating with blood alcohol 

concentration of .08 or higher). Sufficient evidence supports Nyanhongo’s 

conviction. See Burnett v. State, 74 N.E.3d 1221, 1226 (Ind. Ct. App. 2017) 

(holding defendant’s slow and slurred speech, glassy eyes, and alcohol smell on 

breath, combined with officer’s observations at the scene, were sufficient 

evidence of intoxication). 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 7 of 8

Abstract of Judgment

[13] Sua sponte, we observe the Abstract of Judgment does not accurately reflect the 

judgment announced at the conclusion of trial.

4

 At trial, after Nyanhongo 

conceded the required prior conviction, the court indicated it would enter the 

conviction as a Level 6 felony. (See Tr. Vol. II at 65.) However, the Abstract 

lists the charged crime for Count I as “9-30-5-2(a)(b)/F6: Operating a Vehicle 

While Intoxicated: Endangering a Person.” (App. Vol. 2 at 11.) It lists the 

statutory citation for the charge as “9-30-5-2(a)(b)” and notes disposition as 

“Finding of Guilty Lesser Included.”5

 (Id.) The Abstract of Judgment contains 

no reference to Indiana Code section 9-30-5-3(a)(1), which permitted the Class 

C misdemeanor crime to be enhanced to a Level 6 felony conviction. 

Therefore, we remand for the trial court to amend the Abstract of Judgment to 

reflect Nyanhongo is guilty of Level 6 felony operating a vehicle while 

intoxicated with a previous conviction, in violation of Indiana Code section 9-

30-5-3(a)(1). See Borum v. State, 951 N.E.2d 619, 632 (Ind. Ct. App. 2011) 

(remanding for trial court to correct the abstract of judgment). 

Conclusion

4 Nor, as written, does it support the one-year sentence imposed for Count I. 

5 “Finding of Guilty Lesser Included” is a reference to the trial court’s refusal to find Nyanhongo endangered 

a person as required for the Class A misdemeanor conviction under Indiana Code section 9-30-5-2(b). 
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2539 | June 6, 2019 Page 8 of 8

[14] We affirm Nyanhongo’s conviction for operating a vehicle while intoxicated

because the State presented sufficient evidence to support the conviction. 

However, we remand for the trial court to amend the Abstract of Judgment to 

accurately reflect the verdict announced at trial. 

Affirmed and remanded. 

Mathias, J., and Brown, J., concur.