Kremer v. State
| Decision Date | 21 November 1994 |
| Docket Number | No. 61A04-9311-CR-424,61A04-9311-CR-424 |
| Citation | 643 N.E.2d 357 |
| Parties | Richard W. KREMER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Defendant-Appellant Richard W. Kremer appeals his convictions for operating a vehicle while intoxicated, a class A misdemeanor; 1 operating a vehicle with a .10% blood alcohol count (BAC) or more, a class C misdemeanor; 2 and operating a vehicle with a controlled substance (marijuana) in the blood, a class C misdemeanor. 3
We affirm in part and reverse in part.
Kremer raises the following issue for our review: whether his convictions were supported by sufficient evidence.
We sua sponte raise the following issue: whether convictions on all three counts are proper.
The facts most favorable to the judgment show that on August 21, 1992, at approximately 4:00 p.m., Richard Swearingen was watching television when he heard the sound of rotor blades "awfully close." Swearingen then observed a helicopter resembling Kremer's flying over his house. Swearingen noted that the helicopter was approximately 200 feet above the ground.
At approximately 4:30 p.m., Jack Wilson was standing on the Parke County golf course when he heard a "tremendous noise." Wilson observed a helicopter resembling Kremer's helicopter "buzz" a fairway. Wilson noted that the helicopter was traveling approximately 75 feet above the ground.
At approximately 5:00 p.m., Jeff Walter observed Kremer land his helicopter behind his residence. Kremer signaled to Walter, who climbed aboard the helicopter. Kremer, accompanied by Walter, then flew the helicopter at "tree top level."
At approximately 5:30 p.m., Marshall fire chief Ken Ryan heard a loud boom and observed a large amount of smoke. Using his hand-held radio, Ryan immediately broadcast that a helicopter had crashed. Ryan then drove to the scene of the crash, which was about 3,000 feet from his home. Within 3-4 minutes, Ryan arrived at the scene and observed the helicopter engulfed in flames near a bean field. Kremer was lying on the ground approximately 50 feet away from the helicopter. Ryan noted that Kremer did not appear to be in pain, even though his leg was broken and his upper torso was burned. Ryan also noted that Kremer was abusive and that he smelled of alcohol.
At approximately 5:38 p.m., State conservation officer Ken Hutchins arrived on the scene. Officer Hutchins approached Kremer and noted that he was "very, very talkative" and that he became "increasingly argumentative" and "borderline combative" with emergency personnel.
At approximately 5:41 p.m., emergency medical technicians Lana Livengood and Richard Swearingen arrived on the scene. Livengood noted that Kremer was obnoxious and rude, that he smelled of alcohol, and that he "acted drunk." Swearingen also noted that Kremer smelled of alcohol and asked him if he had been drinking. Kremer replied, "No."
At approximately 6:00 p.m., Kremer arrived at Vermillion County Hospital, where he was treated by Dr. Laura Feuquay. At approximately 6:35 p.m., Kremer's blood was drawn by hospital personnel. An analysis of the sample revealed that Kremer's blood serum had an alcohol content of 216 mg/dl, which amounts to a whole blood alcohol content of .16% to .20% by weight.
At approximately 7:00 p.m., Indiana State Police Officer Lynn Manley spoke with Kremer. Kremer asserted that his helicopter had lost its tail rotor at 700 feet and that it was "0-0" at impact. This meant that the helicopter had a vertical speed of zero and a forward air speed of zero. In addition, Kremer asserted that he performed an "auto rotation," meaning that he glided the helicopter to the ground without engine power. Officer Manley, who was also a helicopter pilot, noted that Kremer's version was inconsistent with the evidence at the scene indicating the helicopter had struck the ground with a "pretty good impact" and "some forward speed." Officer Manley also noted that flight regulations require that a helicopter be flown at least 200 feet above the highest building or person. Officer Manley further noted that Kremer's speech was "thick tongued" and slurred.
Willis Ziese was in charge of the investigation conducted by the Federal Aviation Administration. Ziese did not find any evidence showing that the helicopter had a mechanical malfunction. Ziese also testified that the evidence was "inconsistent with what most people would try and do in an auto rotation."
Kremer was charged with the offenses of operating a vehicle while intoxicated, operating a vehicle with at least .10% by weight of alcohol in his blood, and operating a vehicle with a controlled substance in his blood. 4 A jury determined that Kremer was guilty as charged. The trial judge merged the three counts for purposes of sentencing and sentenced Kremer to one year imprisonment, with six months suspended.
Kremer contends the evidence was insufficient to support his conviction of operating a vehicle while intoxicated, a class A misdemeanor. Specifically, he argues that there was no evidence showing impairment and no evidence to rebut a defense witness who testified that Kremer ingested alcohol after the crash.
Where sufficiency of the evidence is challenged on review, this Court neither reweighs the evidence nor determines the credibility of witnesses. Landress v. State (1992), Ind., 600 N.E.2d 938, 940. We look to the evidence most favorable to the verdict together with all reasonable inferences therefrom, and if there is substantial evidence of probative value to support the judgment, it will not be disturbed. Traxler v. State (1989), Ind.App., 538 N.E.2d 268, 269.
The offense which Kremer was convicted of is defined in I.C. 9-30-5-2, which states that "[a] person who operates a vehicle while intoxicated commits a class A misdemeanor." The term "intoxicated" means that the person operating the vehicle is under the influence of (1) alcohol; (2) a controlled substance; (3) a drug other than alcohol or a controlled substance; or (4) a combination of alcohol, controlled substances, or drugs; so that "there is an impaired condition of thought and action and the loss of normal control of a person's faculties to an extent that endangers a person." I.C. 9-13-2-86. The element of "endangerment" is proved by evidence showing that "the defendant's condition or [operating] manner could have endangered any person, including the public, the police, or the [operator]." Shaw v. State (1992), Ind.App., 595 N.E.2d 743, 746, reh'g denied. Accordingly, proof that the defendant's condition rendered operation of the vehicle unsafe is sufficient to establish endangerment. Id.
Convictions of operating while intoxicated may be supported by circumstantial evidence. See Geyer v. State (1988), Ind.App., 531 N.E.2d 235, 237, reh'g denied, trans. denied ( that evidence that an accident which occurred on a street free of obstruction after the vehicle was operated at a high rate of speed, coupled with evidence showing bloodshot eyes and .158% BAC, was sufficient to support conviction); Shady v. State (1988), 524 N.E.2d 44, 45 (); Boyd v. State (1988), Ind.App., 519 N.E.2d 182, 184 (); Hughes v. State (1985), Ind.App., 481 N.E.2d 135, 137 (); Hall v. State (1977), 174 Ind.App. 334, 367 N.E.2d 1103, 1107, reh'g denied ( that evidence showing that the car smelled of alcohol, the defendant was driving very fast, and the car was out of control, was sufficient to support the...
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