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 : ATTORNEYS FOR APPELLEE : MICHAEL FRISCHKORN GREGORY F. ZOELLER Frischkorn Law LLC Attorney General of Indiana Fortville , Indiana JAMES B. MARTIN Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APP EALS OF INDIANA

HEATHER RENAE INGLE , ) ) Appellant

- Defendant, ) ) vs. ) No. 29A02

- 1211

- CR

- 901 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable J. Richard Campbell , Judge Cause No. 29D04

- 1109

- CM

- 139 39

June 28, 2013

MEMORANDUM DECISION
- NOT FOR PUBLICATION
CRONE, Judge2 Case Summary Heather Renae Ingle appeals her convictions for class A misdemeanor operating while intoxicated endangering a person (“OWI”) , class A misdemeanor resisting la w enforcement, and class B misdemeanor disorderly conduct. On appeal, she argues that the trial court erred in denying her motion for mistrial after a State’s witness testified that Ingle had alcohol in her blood when there was no evidence of that . She a lso argues that the evidence is
insufficient to support her conviction for class A misdemeanor OWI . We conclude that the trial court did not err in denying her motion for mistrial because its admonishment to the jury was an adequate remedy for the complai ned

- of testimony. We also conclude that the
circumstantial evidence was sufficient to establish beyond a reasonable doubt that Ingle operat ed a vehicle while intoxicated endangering a person . Therefore, we affirm. Facts and Procedural History On Novembe r 19, 2010, at 1:00 a.m., Carmel Police Officer Timothy Byrne was traveling southbound on Keystone Avenue from 126 th Street in Hamilton County when he observed a silver or grey 1999 Nissan Maxima stopped with its lights off in the right

- hand turn lane. Of

ficer Byrne thought there could be a stranded motorist, ab andoned ve hi c le, or impaired driver , so he stopped near the vehicle and activated his emergency lights

. H e approached the vehicle on foot and saw Ingle lying in the back seat. He touched the hood of the car and noticed that it was still warm. He looked in the vehicle and saw that although the car was not running, the keys were still in the ignition and the car was in drive. The driver’s3

side door was unlocked. Officer Byrne attempted to wake Ing le up . He raised his voice, pushed her on the shoulder , and shook her. Finally, she woke up and got out of the car. Officer Byrne asked Ingle what was going on and why she was there. She stated that she was trying to get home to Marion from Kokomo wh ere she worked at a bar and had gotten bad directions from another officer. She also said that she had gotten tired and pulled over to the side of the road because she was lost and she was waiting for her boyfriend to come pick her up. Officer Byrne aske d Ingle if she knew where she had parked and explained to her that she had parked in the middle of the turn lane. Ingle said that she thought she was on the shoulder of the road. Officer Byrne noticed that Ingle’s speech was
slurred and her eyes were gla ssy and bloodshot, and he smelled the odor of alcohol. He asked her if she had been drinking, and she said that she had not. Officer Byrne suspected
that Ingle might be an impaired driver and decided to continue his investigation at the Carmel Police Sta tion’s sally port , which is a well

- lit, safe environment. After transporting Ingle to the Carmel Police Station, Officer Byrne attempted to
conduct three s tandardized f ield s obriety tests. Ingle failed the h orizontal g aze n ystgamus
test and the one

- leg s tand test . Officer Byrne was unable to administer the nine

- step walk and turn test because Ingle told him she had suffered a head injury from a previous motorcycle accident and could not walk a straight line. Officer Byrne handcuffed Ingle and read her the implied consent advisement. Ingle
said that she would take a breath test. Officer Byrne said that he was offering a blood test because he believed that she was under the influence of something other than alcohol or in4

addition to alcohol. Ingle said , “[Y]ou are not taking my f**king blood.” Tr . at 123. Officer Byrne called the prosecutor to obtain a search warrant for a blood draw and transported Ingle to Riverview Hospital. Once at the hospital, Ingle became belligerent and uncooperative. She sc reamed, banged her head on the plexi glass partition in the police car, and refused to exit the car. Riverview s ecurity o fficers took her out of the car and carried her into the hospital, and she continued to scream and curse. Officer Byrne had not yet obtained a search warrant, and he placed Ingle in a holding cell. Ingle slipped out of the handcuffs and began banging on the plexi glass window. Officer Byrne and another officer went into the holding cell to gain control of Ingle. Ingle fought the offi cers’ attempts to place her in handcuffs. Officer Byrne told her that she needed to calm down or she would be charged with disorderly conduct and resisting law
enforcement. Ingle did not calm down. Officer Byrne obtained the search warrant, and a

nurse drew blood samples from Ingle. Officer Byrne then transported Ingle to the jail, and Ingle again resisted handcuffing and had to be carried, kicking and screaming, to the police car for transport. The Indiana State Department of Toxicology tested Ingle’s blood samples and reported the presence of b enzodiazepine s, a class of drugs that are central nervous system depressants used to treat seizure disorders, insomnia, anxiety, and depression. Id . at 212. The b enzodiazepines detected were c lonazepam and its primary metabolite 7

-

a minoclonazepam , at a total concentration of fifty nanograms per milliliter . State’s Ex. 4. These levels are in the therapeutic range, which is up to eighty nanograms per millili t er. Tr.5

at 211. However, the level of b enzodiazepine in Ingle’s blood was “consistent with explaining the symptoms of impairment” that she exhibited. Id . at 227. The t oxicology report showed no evidence of the active component of marijuana , but it indicate d the
presence of a n inactive marijuana metabolite , d elta

- 9 c arboxy THC. State’ s Ex. 4; Tr. at 235. The State charged Ingle with class A misdemeanor OWI , class A misdemeanor resisting law enforcement, class B misdemeanor disorderly conduct, and class C misdemeanor operating a vehicle with a schedule I o r II controlled substance (marijuana) or its metabolite in the body. A jury found Ingle guilty as charged. The trial court did not enter judgment of conviction for the class C misdemeanor because it found that it was included in
the class A misdemeanor O WI conviction

. Ingle appeals. Additional facts will be provided as necessary. Discussion and Decision
I. Denial of Motion for Mistrial At trial, Dr. Michael Kriger, the Department of Toxicology’s chief forensic toxicologist , testified for the State. T he prosecutor asked Dr. Kriger whether Ingle’s blood was tested for alcohol, and Dr

. Kriger responded that her blood was tested for alcohol and that alcohol was detected at a low concentration. Tr. at 213. The following colloquy followed : Q. Does alcohol have to be at a higher concentration to obtain the effect that you described?
A. Alcohol can cause impairment as low as between .03 and .05. Despite the legal limit of .08 that is a legal switch that gets turned on that says once you reach that you are presumed to be intoxicated. Those that are6 not tolerant to alcohol may experience intoxication at a much lower concentration. Q. And (inaudible) low levels of alcohol will it produce an interaction with benzodiazepines?
A. Yes. Any amount of alcohol pr esent, even in and o f itself is not necessarily causing intoxication. There is a competition reaction going on in the brain at their same receptor sights [sic] and its [sic] enhancing the effect of the benzodiazepine drug itself. Id . at 214.
On cross

- examination, defense counsel asked Dr. Kriger why he said that there was alcohol in Ingle’s blood when the toxicology report showed positive results for
b enzodiazepines and the metabolite of marijuana . Dr. Kriger replied, “ I can review the case and show y ou where there were trace amounts of alcohol. ” Id . at 216

- 217. Defense c ounsel requested a sidebar conference and moved for a mistrial because she had not received any tests from the State indicating alcohol. The trial court excused t he jury and allowed the parties to question Dr. Kriger for clarification before ruling on the motion for mistrial. Dr. Kriger testified that he had based his testimony on the portable breath test results that had not
been admitted

. 1 Id . at 221. Ingle again moved for a mis trial. The trial court denied Ingle’s motion but stated that it would strike Dr. Kriger’s previous opinion and instruct the jury to disregard it. The jury was brought back into the courtroom, and the trial court admonished the jury as follows: [T]he Cour t has stricken any testimony of this witness [Dr. Kriger] in reference to alcohol. It has been agreed by the parties that the Department of Toxicology

1 The probable cause affidavit indicated tha t a portable breath test had detected .03 grams of alcohol per 210 liters of breath. Appellant’s App. at 59.7

did no [ t ] test for alcohol, has no test results for alcohol. And the Court is going to instruct the jur y that they are to disregard any testimony of alcohol, even trace amounts of alcohol that this witness may have testified to. Please disregard that due to lack of evidence. Also, the Court is going to strike this witness’ previous opinion in that it app eared to be based in part on an alcohol test which does not exist as far as the C ourt can tell. So his opinion will be stricken. The State will be allowed later on redirect to establish a new opinion. But his previous opinion is stricken. And the Court will instruct the jury to disregard this witness’ opinion as to impairment. Id . at 228

- 29. Ingle argues that the trial court erred in denying her motion for mistrial and that the admonishment was inadequate.

Whether to grant or deny a motion for mistrial is a decision left to the sound discretion of the trial court. We will reverse the trial court’ s ruling only upon an abuse of that discretion. We afford the trial court such deference on appeal because the trial court is in the best position to evaluate the relevant circumstances of an event and its impact on the jury. To prevail on appeal from the denial of a motion for mistrial, the appellant must demonstrate the statement or conduct in question was so prejudicial and inflammatory that he was placed i n a position of grave peril to which he should not have been subjected. We determine the gravity of the peril based upon the probable persuasive effec t of the misconduct on the jury’ s decision rather than upon the degree of impropriety of the conduct.
A mistrial is an extreme sanction warranted only when no other cure can be expected to rectify the situation. Reversible error is seldom found when the trial court has admonished the jury to disregard a statement made during the proceedings because a timely and accurate admonition to the jury is presumed to s ufficiently protect a defendant’ s rights and remove any error created by the objectionable statement. Alvies v. State , 795 N.E.2d 493, 506 (Ind. Ct. App. 2003) , trans.denied (citations omitted). Ingl e argues that the trial court’s admonishment was inadequate because the issue of
intoxication was central to the State’s case and Dr. Kriger had not mention ed alcohol to8

defense counsel when they spoke the day before trial . We are unpersuaded that the tri al court’s admonishment was inadequate

. The admonishment was clear and direct. The trial court not only told the jury several times to disregard Dr. Kriger’s testimony regarding

a l cohol , but also informed the jury that the parties agreed that there were no test results for alcohol, that the jury should disregard Dr. Kriger’s testimony due to lack of evidence, and that Dr. Kriger’s testimony had been based on an alcohol test that did not exist. Given that
the trial court so effectively conveyed to the jur y that there was no evidence of alcohol , we have no difficulty concluding that the jury complied with the trial court’s instruction to disregard Dr. Kriger’s improper testimony. We conclude that the trial court’s admonishment was adequate to insure that t he improper testimony did not affect the jury’s decision

. 2 Accordingly, the trial court did not abuse its discretion in denying Ingle’s motion for mistrial.
See Lucio v. State , 907 N.E.2d 1008, 1011 (Ind. 2009) ( stating that trial court ’s clear
admonishm ent to jury not to consider inadmissible evidence and treat it as though they had never heard of it together with strong presumption s that juries follow court’s instruction s and
admoni shments cure any error severely undercut defendant’s posit ion )

. II. Suff iciency of the Evidence Ingle also contends that the evidence was insufficient to support her conviction for class A misdemeanor OWI

.

When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of the wit nesses. We look only to

2 Ingle cites Beauchamp v. State , 788 N.E.2d 881 (Ind. Ct. App. 2003), in which we reversed the defendant’s conviction after concluding that the t rial court improperly admitted evidence that was a violation of the trial court’s discovery order and Indiana Trial Rule 26(E)(1). Here, the improper evidence was stricken from the record and the jury was effectively instructed to ignore it.9

the probative evidence supporting the [verdict] and the reasonable inferences that may be drawn from that evidence to determine whether a reasonable trier of fact could conclude the defendant was guilty beyond a reasonable doubt. If there is substantial evidence of probative value to support the conviction, it will not be set aside.
Dorsett v. State , 921 N.E.2d 529, 531 (Ind. Ct. App. 2010) (citations omitted). To convict Ingle of class A misdemeanor OWI , the State had to prove that she (1) operated a vehicle (2) while intoxicated (3) in a manner that endangered a person. Ind. Code § 9

- 30

- 5

- 2(b). “ Intoxicated ” means under the influence of alcohol, a controlled substance, a drug other than alcohol or a controlled substance, or a combination thereof “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. “[T] to operate a vehicle is to drive it or be in actual physical control of it upon a highw ay.” Crawley v. State , 920 N.E.2d 808, 812 (Ind. Ct. App. 2010) (citing Hampton v. State, 681 N.E.2d 250, 251 (Ind. Ct. App. 1997)), trans. denied.
T o determine whether a defendant has “operated” a vehicle , we consider any evidence that
leads to a reason able inference including : “(1) the location of the vehicle when it is discovered; (2) whether the car was moving when discovered; (3) any additional evidence indicating that the defendant was observed operating the vehicle before he or she was discovered; and (4) the position of the automatic transmission.” Id

. A conviction for operating while intoxicated may be supported by circumstantial evidence. Dorsett , 921 N.E.2d at 531

- 32. Ingle concedes that there is evidence that she operated the vehicle at some point during the evening , that she was intoxicated at the time Officer Byrne woke her up , and that10

she operated her vehicle in a manner that endanger ed herself or others , but she argues that there is no evidence that “ all of these elements occurred at the same time

. ” Appellant’s Reply Br. at 2. Ingle ignores the circumstantial evidence. Ingle told Officer Byrne that she was trying to get from Kokomo to Marion, had received bad directions from another officer, and got lost. Officer Byrne found that the hood of her vehicle was still warm in the middle of a November night, which supports a reasonable inference that the car had not been stopped long. The keys were still in the ignition and the car was in drive. When Officer Byrne woke Ingle up, he detect ed signs of intoxication such as slurred speech and glassy, bloodshot eyes.
Moreover , s he had stopped her vehicle with no lights on in the right

- hand turn lane of a well

traveled four

- lane road at 1:00 a.m. She was unaware of where she had parked and told Officer Byrne that she thought she was parked on the shoulder of the road. These facts support a reasonable inference that her judgment was impaired when she stopped her car , which endangered her life as well as those of other motorists. Ingle’s argumen t is merely an invitation to reweigh the evidence, which we will not do. We conclude that the evidence was sufficient to support Ingle’s conviction for class A misdemeanor OWI

. Therefore, we affirm.
Affirmed.
ROBB , C.J., and FRIEDLANDER, J., concur.