Jerry L. Ballard, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Case Summary

[1] A jury found Jerry L. Ballard guilty of operating a vehicle while intoxicated (“OWI”), as a Class C misdemeanor; operating a vehicle with a schedule I or II controlled substance or its metabolite in his blood, a Class C misdemeanor; possession of paraphernalia, as a Class C misdemeanor; and failure to use a safety belt, a Class D infraction. The trial court sentenced Ballard to forty days in jail on the OWI count.

[2] On appeal, Ballard challenges the sufficiency of the evidence supporting his OWI conviction, the constitutionality of the operating with a controlled substance statute, and the trial court's refusal to investigate an allegation of juror misconduct. We affirm.

Facts and Procedural History

[3] On February 3, 2024, Morgan County Sheriff's Office Deputies Justin Roe and Caleb Merriman passed a vehicle driven by Ballard and saw that he was not wearing a seatbelt. The deputies followed Ballard for several miles and activated the emergency lights on their vehicle when they reached a safe location to conduct a traffic stop. Ballard pulled into and parked in a residential driveway. The deputies, who were wearing bodycams, exited their vehicle and approached Ballard's vehicle. Ballard exited his vehicle. He exhibited “poor” manual dexterity in closing his vehicle's door and leaned against the vehicle to “steady [his] balance.” Tr. Vol. 2 at 156, 151. He also repeatedly put his hands in his coat pockets despite the deputies’ requests not to do so.

[4] Deputy Merriman observed that Ballard's speech was “slurred” and his “eyes were glossy and bloodshot,” and the deputy could detect the odor of an alcoholic beverage “coming from [Ballard's] breath .․ from several feet away[.]” Id. at 168. Ballard told the deputies that he had consumed “a couple beers a while ago.” State's Ex. 14 at 0:01:25 (Deputy Roe's bodycam video). Deputy Merriman administered three field sobriety tests to Ballard, all of which he failed. An inventory search of Ballard's vehicle uncovered a “one hitter” that is “used to smoke marijuana.” Tr. Vol. 2 at 180.

[5] Ballard was taken into custody for a blood draw. The test results showed that he had a level of 0.046 grams per 100 milliliters of ethanol in his blood, as well as fourteen nanograms per milliliter of Delta-9 THC, which is the “main component of marijuana” and “can have a psychoactive effect, or an impairing effect on somebody.” Id. at 205. The results also revealed the presence of both an active Delta-9 THC metabolite, which “can still contribute to impairment,” and an inactive metabolite, which does not. Id.

[6] Ultimately, the State charged Ballard with OWI, as a Class C misdemeanor; operating a vehicle with a schedule I or II controlled substance or its metabolite in the blood, a Class C misdemeanor; possession of paraphernalia, as a Class C misdemeanor; and failure to use a safety belt, a Class D infraction. A jury trial was held in July 2025. The deputies testified about the traffic stop, and their bodycam videos were admitted into evidence and played for the jury. A toxicologist testified about Ballard's blood test results. The jury found Ballard guilty as charged. The trial court entered judgment of conviction on all counts and sentenced Ballard to forty days in jail on the OWI count. Ballard now appeals. Additional facts will be provided as necessary.

Discussion and Decision

Issue One: Sufficiency of the Evidence

[7] Ballard contends that the State failed to present sufficient evidence to support his Class C misdemeanor OWI conviction. When reviewing the sufficiency of the evidence to support a conviction, we must consider only the probative evidence and reasonable inferences supporting the conviction. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence. Id. We affirm the conviction unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence overcome every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference may reasonably be drawn from it to support the conviction. Id.

[8] Indiana Code Section 9-30-5-2 states, “(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor. (b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.” Indiana Code Section 9-13-2-86 provides in pertinent part that “intoxicated” means “under the influence of” alcohol or a controlled substance (such as marijuana), “so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties.”

[9] Ballard argues, “Although the deputies testified that [he] failed the field sobriety tests, he exhibited no concerning driving behaviors to indicate intoxication during the several miles that the deputies followed behind him[.]” Appellant's Br. at 14. But Ballard was not charged with operating his vehicle in a manner that endangers a person. He further argues that “there was no evidence or testimony that his condition of thought was impaired, and he was well under the legal limit for alcohol.” Id. Ballard was not charged with operating a vehicle at or above a specific blood alcohol level, and his inability to follow the deputies’ commands to keep his hands out of his pockets, among other things,¹ indicated that his condition of thought was impaired. Ballard's sufficiency challenge is merely a request to reweigh the evidence, which we may not do.²

Issue Two: Constitutionality of Indiana Code Section 9-30-5-1(d)(2)(D)

[10] Next, Ballard asserts that Indiana Code Section 9-30-5-1(d)(2)(D)³ violates Article 1, Section 23, the privileges and immunities clause of the Indiana Constitution. Because Ballard did not raise this issue below, he has waived it on appeal. See Adams v. State, 804 N.E.2d 1169, 1172 (Ind. Ct. App. 2004) (holding that defendant waived challenge to constitutionality of obscenity statute on appeal by failing to file motion to dismiss before trial and failing to object at trial).⁴

Issue Three: Refusal to Investigate Possible Juror Misconduct

[11] After the jurors retired to deliberate, they submitted a question to the court that was not read into the record. The court and the parties agreed that the court would instruct the jurors to “refer back to [their] instructions and the evidence presented[.]” Tr. Vol. 2 at 244. Sometime later, the trial court told the parties, “[T]he Bailiff has informed me that one of our jurors is having heart issues, and I think maybe [I will] just have the Bailiff tell you what she's told her[.]” Id. at 245. The bailiff stated,

[The juror, identified in the record as juror number 13,] said that she, her first words were, I can't do this any longer. I'm having heart palpitations, my heart is racing, I have a bad heart, and I have a doctor's appointment the beginning of August. When she came in, she said I brought all of my paperwork with me. And I said what's it for? She goes, to show that I've got doctor's appointments. And I said, it's going to be a one day trial. But she never told me she had heart issues. So, but she's struggling.

Id. Defense counsel replied, “That's why we have an alternate.” Id. The bailiff suggested, and defense counsel agreed, that juror number 13 had admitted to being a diabetic earlier in the proceedings.⁵ The bailiff stated, “I told her to go and sit quietly in the restroom and just relax, try to deep breathe.” Id.

[12] The trial court asked, “Is there any objection from the State, for the record, if the Court were to replace [her] with the alternate in this case?” Id. The prosecutor replied, “No, Judge, I think the fact that she's in the bathroom right now is, it's a clear a sign as any, so..[.]” Id. The court then asked, “[A]ny objection from the defense?” Id. at 246. Defense counsel replied, “No, Judge, that's fine.” Id. The court then stated,

I am going to direct the alternate juror to replace juror number 13. I've not had this happen before. So I think if I just tell the Bailiff to do that, have the replace [sic], and then release juror number 13 and thank her for her service, I don't think we need to bring them back in.

Id. The jury resumed its deliberations and returned a verdict of guilty on all counts. Defense counsel asked the court to poll the jury, and each juror confirmed the verdict as his or her own.

[13] The court accepted the verdict and informed the jurors,

The attorneys often like to speak with the jurors to get some feedback on things. You do not have to stay around and talk, but ․ it really does mean something to them to get something back from you, so if you would like to talk to the attorneys about the case, you'll come back through this door, we'll let you back in, and you can come back into the Courtroom and talk.

Id. at 249. The court then scheduled Ballard's sentencing hearing and went off the record.

[14] At the beginning of the sentencing hearing, the trial court asked defense counsel if he was “ready to move forward with sentencing today[.]” Tr. Vol. 3 at 8. Defense counsel replied,

Judge, actually not, before we get there, if we do, I do want to make a record. It was such a unique ending to that jury trial and I feel like if we're, there's a possibility of appeal, I'd like to make a record. I do want to make a Motion, kind of an alternative Motion, either for a mistrial, or at least a postponement of the sentencing to, for the Court to discover some more facts about what happened. And let me kind of sum it up if I can. And everybody was present, so we all kind of saw it, except for my client, he was not here for the whole thing. The jury was out for a bit, and then had a question that couldn't be answered, and then they came back shortly after they found that out, and said that, and I believe it was [the bailiff] that brought it to our attention, that one of the jurors was having a medical issue.

․.

And so we were told that she was having, I believe, heart palpitations and was basically hiding out in the bathroom.[6] So, she was requesting to get off the case.

․.

I think everyone was in agreement that because of her medical distress, that we agreed she should be let go, and that's what happened. And then the other unique thing about this is after the verdict came in, we always ask if there's any jurors who want to stick around, you know, please do. Well all six of them wanted to stick around and they all filed in here and off the record of course, they talked about the case, which is good, because we all want to know what the issues were and you know, how they felt. And luckily the Court was present during all of this too. And then, to me anyway, ․ there was some discussion about, and I would characterize it as almost gleefulness about being able to get that lady off, that that lady left the jury, and then it turns out we find out she was, she was the hold out, she would have hung the jury if she hadn't have left, maybe. And I got the impression, and it bothers me tremendously the more I think about it, that their, I characterize it as gleefulness, I know that you probably wouldn't, but, that their gleefulness in getting rid of her, the fact that they all then came back with a guilty makes me suspicious of some misconduct.

Id. at 8-10.

[15] The prosecutor disagreed with defense counsel's characterization of the jurors as “gleeful” and reminded defense counsel that he had agreed “on the record” to release juror number 13. Id. at 11. Additionally, the prosecutor “distinctly remember[ed]” the jury foreperson “saying, we were all willing to keep working and keep talking through things, and she didn't want to.” Id. at 13. Defense counsel did not contradict this statement. The trial court also “got no indication” that the jurors were “gleeful” about the juror's release or that there was “any sort of brow beating, or misconduct.” Id. at 12. The court ultimately denied defense counsel's motion for mistrial and request to postpone the sentencing hearing to subpoena juror number 13.

[16] On appeal, Ballard argues that “the trial court erred when it declined to investigate allegations of juror misconduct.” Appellant's Br. at 17 (italics removed). “The issue of juror misconduct is a matter within the trial court's discretion.” Lopez v. State, 527 N.E.2d 1119, 1130 (Ind. 1988). The State points out that Indiana Evidence Rule 606(b)(1) provides,

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters.[7]

The State argues, “Because there would have been an inability to ascertain evidence that supported [Ballard's] particular claim, any error created by the trial court's denial of an investigation likely had little impact on [his] substantial rights.” Appellee's Br. at 23. We must agree.

[17] When the bailiff informed the parties about juror number 13's heart palpitations, defense counsel could have requested an opportunity to investigate further, but he failed to do so. Moreover, as noted above, both the prosecutor and the trial court disputed defense counsel's characterization of the remaining jurors as “gleeful,” and defense counsel did not contradict the prosecutor's statement that the jury foreperson had said that the jurors “were all willing to keep working and keep talking through things, and [juror number 13] didn't want to.” Tr. Vol. 3. at 11, 13. In sum, Ballard has failed to establish an abuse of discretion here. Accordingly, we affirm his OWI conviction.

[18] Affirmed.

FOOTNOTES

1.   When administering the horizontal gaze nystagmus field sobriety test, Deputy Merriman told Ballard to follow an object by moving his eyes and not his head. Ballard repeatedly moved his head and not his eyes.

2.   Regarding Deputy Merriman's testimony that Ballard's speech was “slurred” and his “eyes were glossy and bloodshot,” Tr. Vol. 2 at 168, Ballard argues that the deputy did not know him “before the traffic stop to know how his speech and eyes usually are.” Appellant's Br. at 13. It is safe to say that the overwhelming majority of law enforcement officers have had no prior acquaintance with the subjects of their traffic stops.

3.   Ballard was charged and convicted under Indiana Code Section 9-30-5-1(c), which states, “A person who operates a vehicle with a controlled substance listed in schedule I or II of IC 35-48-2 or its metabolite in the person's blood commits a Class C misdemeanor.” Subparagraph (d)(2)(D) of the statute provides in pertinent part, “It is a defense to subsection (c) that ․ the substance was identified by means of a chemical test taken pursuant to IC 9-30-7[,]” which governs implied consent in accidents involving serious injury or death.

4.   In a footnote, the State writes, “[A]lthough [Ballard] does not raise double jeopardy, the State acknowledges that this Court could decide to explore the issue of [Ballard's] convictions for both operating while intoxicated and operating with a Schedule I substance in the blood sua sponte” to avoid addressing Ballard's constitutional challenge. Appellee's Br. at 15 n.1. Because Ballard has waived that challenge, and because neither party has briefed the issue, we decline to wade into the murky waters of substantive double jeopardy of our own accord.

5.   See Tr. Vol. 2 at 129 (the juror admitted that she is a diabetic after her cell phone's glucose alarm went off during opening statements).

6.   This remark is contradicted by the bailiff's statement that she told juror number 13 to go into the bathroom to relax.

7.   Notwithstanding, “[a] juror may testify about whether: (A) any juror's drug or alcohol use; (B) extraneous prejudicial information was improperly brought to the jury's attention; (C) an outside influence was improperly brought to bear on any juror; or (D) a mistake was made in entering the verdict on the verdict form.” Ind. Evidence Rule 606(b)(2). Ballard does not even cite Evidence Rule 606(b), let alone argue that any of these exceptions apply. Ballard suggests that he is not challenging the validity of the jury's verdict, but that is precisely the purpose of his misconduct claim.

Bailey, Judge.

Vaidik, J., and Scheele, J., concur.