Hugo A. Lopez, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Lopez was driving while intoxicated through a busy urban area with multiple open bottles of alcohol in his car. After sideswiping a vehicle in the neighboring lane, Lopez drove away from the scene of the accident without stopping. The State charged Lopez in connection therewith, and the trial court found him guilty. Lopez appeals and raises one issue, which we restate as the following two:

1. Whether the trial court erred by admitting certain evidence at trial; and

2. Whether the State presented sufficient evidence to support Lopez's convictions.

[2] We affirm.

Facts and Procedural History

[3] On June 3, 2022, Lopez was driving in downtown Indianapolis when he “sideswiped,” Tr. Vol. II at 16, a Dodge Ram in the neighboring lane. Jeremy Avery was riding his motorcycle behind the two vehicles, and he observed Lopez “swerving” and “drifting” in his lane before he “hit[ ]” the Dodge Ram, and Lopez then “ke[pt] on going.” Id. at 87. Avery and the occupants of the Dodge Ram got the attention of nearby off-duty Indianapolis Metropolitan Police Department Officer Joseph Reynolds, who followed Lopez and initiated a traffic stop. Lopez followed Officer Reynold's instructions, which were delivered in English, and Lopez never “sa[id] that he could not speak English.” Tr. Vol. II at 94.

[4] In speaking with Lopez, “it was apparent” to Officer Reynolds that “Lopez had been drinking.” Tr. Vol. II at 9. Lopez had “red glossy eyes” and “a staggered stance.” Id. Officer Reynold's also observed “open bottles of liquor in the vehicle,” including “at least two Budweiser's.” Id.

[5] Suspecting Lopez was intoxicated, Officer Reynolds handed the investigation over to Speedway Police Department Sergeant Robert Fekkes, who was working with the Marion County “DUI task force.” Tr. Vol. II at 15. When Sergeant Fekkes arrived, he observed that Lopez had “the odor of an alcoholic beverage coming from [ ]his person” and “red watery eyes.” Id. at 19. Sergeant Fekkes asked Lopez if he was willing to submit to field sobriety testing, and Lopez indicated that he was. Sergeant Fekkes then asked Lopez if he spoke English, and Lopez “indicated that he did.” Id. at 21. Sergeant Fekkes “proceeded through the entirety of [his] investigation in English” without any “issues with ․ Lopez following [his] instructions and completing the necessary tasks.” Id. at 17. Avery, who had remained nearby, overheard Lopez speaking in English with the officers and never heard Lopez say he did not understand the officers’ instructions.

[6] After administering a horizontal gaze and nystagmus test,¹ Sergeant Fekkes determined Lopez showed “the maximum number of indications” that Lopez's “blood alcohol content was above the legal limit.” Tr. Vol. II at 29. Seeking to confirm his suspicion with a blood draw, Sergeant Fekkes provided an implied-consent advisement to Lopez regarding chemical testing. Sergeant Fekkes believed Lopez understood the advisement and Lopez consented to testing.

[7] Sergeant Fekkes transported Lopez to the hospital, where Lopez was presented with a “blood draw log,” Tr. Vol. II at 36, written in English. Sergeant Fekkes explained that by signing the log, Lopez would be “consenting for a nurse to draw his blood.” Id. Lopez signed the log, and his blood was drawn; there is nothing in the record indicating that Lopez did not understand Fekkes's explanations or could not read the log. The results of the blood draw indicated an alcohol concentration equivalent to 0.135 grams of alcohol per 100 milliliters of blood.

[8] The State charged Lopez with six counts: (1) operating a vehicle while intoxicated endangering a person as a Class A misdemeanor (the “OWI Count”),² (2) leaving the scene of an accident as a Class B misdemeanor (the “Leaving the Scene Count”),³ (3) operating a vehicle with an alcohol concentration equivalent (“ACE”) of 0.08 or more as a Class C misdemeanor,⁴ (4) operating a vehicle while intoxicated as a Class C misdemeanor,⁵ (5) operating a motor vehicle without ever receiving a license as a Class C misdemeanor,⁶ and (6) possessing an open alcoholic beverage container during operation of a motor vehicle as a Class C infraction (the “Open Container Count”)⁷ . The charging information alleged that the victim of the Leaving the Scene Count was “Clifford Williams.” Appellant's App. Vol. II at 18.

[9] During the ensuing bifurcated bench trial, at which Spanish interpretation services were used,⁸ Lopez objected to the admission of evidence regarding the field sobriety test and blood draw on the grounds that he was not advised of his rights in Spanish. The trial court overruled Lopez's objections, finding Lopez communicated with the officers in English and understood their advisements and instructions.

[10] The trial court found Lopez guilty of all counts except for operating a motor vehicle without ever receiving a license as a Class C misdemeanor. Due to double jeopardy concerns, the trial court merged the guilty findings for operating a vehicle with an ACE of 0.08 or more and operating a vehicle while intoxicated into the guilty finding for the OWI Count. This appeal ensued.

Discussion and Decision

1. The Trial Court Did Not Err by Admitting Evidence Regarding the Field Sobriety Test and the Blood Draw

[11] Lopez argues the trial court erred by admitting evidence regarding the field sobriety test and blood draw “against [Lopez's] due process rights.” Appellant's Br. at 15. Lopez argues that he had English “language limitations,” id. at 12, and “it was hard to demonstrate that [his] legal rights were explained to him adequately,” that he “consented to the field sobriety test,” and that he took the “blood draw knowingly and voluntarily,” id. at 15.

[12] This argument is waived due to Lopez's noncompliance with Appellate Rule 46. The purpose of our appellate rules—especially Appellate Rule 46 governing the content of briefs—“is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)). “We will not step in the shoes of the advocate and fashion arguments on his behalf, ‘nor will we address arguments’ that are ‘too poorly developed or improperly expressed to be understood.’ ” Miller, 212 N.E.3d at 657 (quoting Dridi, 172 N.E.3d at 364).

[13] Lopez fails to set out the applicable standard of review for due process and admission of evidence claims, see App. R. 46(A)(8)(b), and he cites to no authority regarding the requirements to obtain valid consent to a field sobriety test or blood draw, see App. R. 46(A)(8)(a); the authority Lopez cites all concern in-court advisements, which are not at issue here. Moreover, Lopez's argument that it was “hard to demonstrate” that he consented to the field sobriety test and blood draw, Appellant's Br. at 13, is not cogent because Lopez fails to explain how the State's evidence of his consent was inadequate, and he points to no evidence in the record to establish that he did not understand the officers or did not provide valid consent, see App. R. 46(A)(8)(a).

[14] The due process aspect of Lopez's argument is additionally waived because he never presented a due process argument to the trial court and does not contend that the alleged due process error is fundamental. See Terpstra v. State, 138 N.E.3d 278, 286 (Ind. Ct. App. 2019) (concluding the defendant waived his right to appeal because he “never raised a due process objection at trial, and ․ does not argue that the alleged violations of his due process rights constituted fundamental error”), trans. denied.

[15] Waiver notwithstanding, Lopez's admission-of-evidence claim fails on the merits. We review rulings on admissibility of evidence for an abuse of discretion. Russell v. State, 234 N.E.3d 829, 858 (Ind. 2024) (quoting Conley v. State, 972 N.E.2d 864 (Ind. 2012)), cert. denied, 145 S. Ct. 424 (2024).

[16] The gist of Lopez's challenge is that Sergeant Fekkes improperly obtained Lopez's consent to the field sobriety test and blood draw because the advisements were given in English. Officer Reynolds and Sergeant Fekkes testified that Lopez understood English, communicated with them in English, and never suggested that he did not understand their instructions. Avery testified that he heard Lopez speaking with the officers in English and that Lopez never said that he did not understand them. In short, there is ample evidence in the record to establish that Lopez did understand the officers. Lopez concedes as much, noting, “the record of Mr. Lopez's language limitations was basically the assertions of counsel” at trial. Appellant's Br. at 12. The trial court thus did not abuse its discretion by admitting the challenged evidence.

[17] Moreover, even if the trial court abused its discretion by admitting the evidence, the error would be harmless. “An error is harmless when it results in no prejudice to the ‘substantial rights’ of a party.” Hall v. State, 177 N.E.3d 1183, 1197 (Ind. 2021) (quoting Durden v. State, 99 N.E.3d 645, 652 (Ind. 2018)); see also App. R. 66(A). In conducting our harmless error analysis, factors we consider are “the presence or absence of other, corroborating evidence on material points; whether the impermissibly admitted evidence was cumulative; the overall strength of the prosecution's case; the importance of the impermissible evidence in the prosecution's case; and the extent of cross-examination or questioning on the impermissibly admitted evidence.” Hall, 177 N.E.3d at 1197 (quoting Zanders v. State, 118 N.E.3d 736, 745–46 (Ind. 2019)).

[18] Here, even if we ignore the evidence regarding the field sobriety test and blood draw, the remaining evidence regarding Lopez's visible signs of intoxication and the open containers of alcoholic beverages in his vehicle was sufficient to demonstrate Lopez was intoxicated.⁹ Because this remaining evidence corroborated Lopez's intoxication, any error in the admission of the field sobriety test and blood draw would be harmless.

2. The State Presented Sufficient Evidence to Support Lopez's Convictions

[19] Lopez argues that the State presented insufficient evidence at trial to support his convictions. Our standard of review for such a claim is as follows:

“A conviction is supported by sufficient evidence if ‘there is substantial evidence of probative value supporting each element of the offense such that a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Willis v. State, 27 N.E.3d 1065, 1066 (Ind. 2015)). This Court reviews only the evidence most favorable to the verdict and the reasonable inferences therefrom, and will reverse only where it is shown that “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Teising [v. State], 226 N.E.3d [780,] 783 [(Ind. 2024)].

Konkle v. State, 253 N.E.3d 1068, 1090–91 (Ind. 2025). We do not reweigh the evidence or reassess witness credibility. Id. at 1090 (quoting Teising, 226 N.E.3d at 783).

[20] Lopez challenges the sufficiency of the evidence supporting his convictions for the (a) OWI Count, (b) Leaving the Scene Count, and (c) Open Container Count. We address each in turn.

a. OWI Count

[21] A person commits operating a vehicle while intoxicated endangering a person as a Class A misdemeanor when the person “operates a vehicle while intoxicated” and does so “in a manner that endangers a person.” Ind. Code § 9-30-5-2. Lopez does not contest that he operated a vehicle; he only challenges the evidence that he (1) was intoxicated and (2) endangered a person.

[22] As relevant to Lopez's conviction, “intoxicated” means “under the influence of ․ alcohol ․ so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties.” I.C. 9-13-2-86. “Impairment can be established by evidence of (1) the consumption of significant amounts 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; (7) slurred speech.” Poortenga v. State, 99 N.E.3d 691, 698 (Ind. Ct. App. 2018) (quoting Fought v. State, 898 N.E.2d 447, 451 (Ind. Ct. App. 2008)); see also Outlaw v. State, 929 N.E.2d 196, 196 (Ind. 2010) (per curiam). Evidence showing some of these factors of impairment can “be legally sufficient to sustain a finding of intoxication.” Poortenga, 99 N.E.3d at 698.

[23] Here, the probative evidence and reasonable inferences supporting the verdict show that when Lopez spoke with the officers, he had “red glossy eyes,” Tr. Vol. II at 9, a “staggered stance,” id., and the “odor of an alcoholic beverage coming from [ ]his person,” id. at 19. Several open alcoholic beverage containers were in Lopez's vehicle. Lopez subsequently failed a field sobriety test, and his blood alcohol concentration equivalent was 0.135 grams of alcohol per 100 milliliters of blood. This evidence was sufficient to demonstrate that Lopez was intoxicated.

[24] As for the endangerment element, the evidence must show that the defendant “endanger[ed] his or another person's life.” Tin Thang v. State, 10 N.E.3d 1256, 1260 (Ind. 2014). In Tin Thang, the Indiana Supreme Court held there was sufficient evidence of endangerment when the factfinder could draw a reasonable inference that the defendant drove while intoxicated on a public road. Id. Here, Lopez was driving on a public road where other vehicles and pedestrians were present, and he hit another vehicle. This evidence was sufficient to show Lopez endangered his own life and the lives of others. The State thus presented sufficient evidence to support Lopez's conviction for the OWI Count.

b. Leaving the Scene Count

[25] In order to convict Lopez of leaving the scene of an accident as a Class B misdemeanor, the State had to prove beyond a reasonable doubt that Lopez “operate[d] a motor vehicle involved in an accident” and failed to “immediately stop” at the scene of the accident or as “close ․ as possible” thereto. I.C. § 9-26-1-1.1(a)(1). Lopez first argues that the evidence is insufficient because the State did not present evidence that Williams was the victim of the accident, as alleged in the charging information.¹⁰ The State was not required to prove that Williams was the victim of the accident because identity of the victim is not an element of the offense. See id. The statute merely requires that the defendant be “involved in an accident,” not that the defendant “caused” the accident such that another driver was the victim. See Barrozo v. State, 156 N.E.3d 718, 724 (Ind. Ct. App. 2020) (emphasis in original).

[26] In a similar vein, Lopez argues that the absence of evidence regarding Williams's identity constitutes a “variance” with the charging information. Appellant's Br. at 17 (quoting Allen v. State, 720 N.E.2d 707, 713 (Ind. 1999)). A variance is an “essential difference” between the allegations in the charging information and the evidence used at trial. Blount v. State, 22 N.E.3d 559, 569 (Ind. 2024) (citing Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997); Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992)). We review variance claims as challenges to the sufficiency of the evidence because “the defendant's essential argument is the evidence produced at trial so differed from the charging information that it was insufficient to convict him as charged.” Id. at 565 (citing Mathews v. State, 978 N.E.2d 438, 444 (Ind. Ct. App. 2012), trans. denied).

[27] When an alleged difference between the charging information and the evidence pertains to a fact that is not an element of an offense, the difference does not constitute a variance. Blount, 22 N.E.3d at 569–70. So here, because identity of the victim is not an element of leaving the scene of an accident, the absence of such evidence does not constitute a variance. See id. Rather, inclusion of Williams's name in the charging information was a mere surplusage because Williams's identity “could have been entirely omitted without affecting the sufficiency of the charge” against Lopez. Winn v. State, 748 N.E.2d 352, 356 (Ind. 2001) (quoting Mitchem, 685 N.E.2d at 676); see Reinhardt v. State, 881 N.E.2d 15, 18 (Ind. Ct. App. 2008) (holding that, in prosecution for delivery of cocaine, the State's failure to prove at trial that the delivery recipient was the person alleged in the charging information was not a fatal variance because proof of the recipient's identity was not an element of the offense and the allegation in the charging information thereof was mere surplusage). The State thus presented sufficient evidence to support Lopez's conviction for the Leaving the Scene Count.

c. Open Container Count

[28] Indiana Code section 9-30-15-3 prohibits a person from possessing an opened alcoholic beverage container in a vehicle while the vehicle is in operation. Lopez argues there were no “photos and/or videos” of open alcoholic beverages in his vehicle, Appellant's Br. at 18, but a conviction can be sustained based on “the uncorroborated testimony of a single witness,” Bailey v. State, 979 N.E.2d 133, 135 (Ind. 2012) (citing Ferrell v. State, 565 N.E.2d 1070, 1072–73 (Ind. 1991)). Here, Officer Reynolds testified that he observed in Lopez's vehicle “open bottles of liquor,” including “at least two Budweiser's.” Tr. Vol. II at 9. Lopez is requesting that we reweigh the evidence, which we cannot do. Konkle, 253 N.E.3d at 1090 (quoting Teising, 226 N.E.3d at 783). Thus, as with Lopez's other convictions, the State presented sufficient evidence to support Lopez's conviction for the Open Container Count.

Conclusion

[29] In sum, the trial court did not err in admitting evidence, and the State presented sufficient evidence to support Lopez's convictions. We thus affirm the trial court on all issues raised.

[30] Affirmed.

FOOTNOTES

1.   To administer the horizontal gaze and nystagmus test, Sergeant Fekkes passed a pen in front of Lopez's face to determine whether Lopez's eyes demonstrated “unsmooth pursuit” and “distinct and sustained nystagmus,” which is “involuntary jerking of the eye” that ingestion of alcohol “will amplify.” Tr. Vol. II at 27.

2.   Ind. Code § 9-30-5-2(b).

3.   I.C. § 9-26-1-1.1(a)(1), (b).

4.   I.C. § 9-30-5-1(a).

5.   I.C. § 9-30-5-2(a).

6.   I.C. § 9-24-18-1.

7.   I.C. § 9-30-15-3.

8.   Interpretation services had been used during pretrial conferences beginning several months before the trial.

9.   We discuss this evidence further in Part II of this opinion.

10.   The charging information alleged as follows: “On or about June 3, 2022, HUGO A LOPEZ, being the driver of a vehicle that was involved in an accident with Clifford Williams, did knowingly fail to immediately stop the vehicle at the scene of said accident, or as close as possible thereto.” Appellant's App. Vol. II at 18.

Felix, Judge.

May, J., and Mathias, J., concur.