MEMORANDUM DECISION Jul 13 2015, 8:36 am 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 Dori Newman Gregory F. Zoeller Newman & Newman, PC Attorney General of Indiana Noblesville, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard McCrumb, July 13, 2015
Appellant-Defendant, Court of Appeals Case No. 29A05-1412-CR-583 v. Appeal from the Hamilton Superior Court
State of Indiana, The Honorable Gail Z. Bardach, Judge Appellee-Plaintiff 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,
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 1 of 6 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
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 2 of 6 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
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 3 of 6 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.
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 4 of 6 [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:
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MEMORANDUM DECISION Jul 13 2015, 8:36 am 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 Dori Newman Gregory F. Zoeller Newman & Newman, PC Attorney General of Indiana Noblesville, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Richard McCrumb, July 13, 2015
Appellant-Defendant, Court of Appeals Case No. 29A05-1412-CR-583 v. Appeal from the Hamilton Superior Court
State of Indiana, The Honorable Gail Z. Bardach, Judge Appellee-Plaintiff 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,
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 1 of 6 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
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 2 of 6 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
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 3 of 6 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.
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 4 of 6 [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.
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 5 of 6 (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.
Court of Appeals of Indiana | Memorandum Decision 29A05-1412-CR-583 | July 13, 2015 Page 6 of 6