Nelson C. Harmeyer Jr., Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2026)

MEMORANDUM DECISION

Statement of the Case

[1] Nelson Harmeyer was intoxicated when he drove over a culvert in Ray Lunsford's yard and stopped only after Lunsford waved at him to do so. Harmeyer fell on his back as he exited his vehicle, and he was slurring his words. A blood test showed Harmeyer's blood had an alcohol concentration equivalent (“ACE”) of .204. Harmeyer was convicted of operating a vehicle while intoxicated and sentenced to ten-and-a-half years of incarceration. Harmeyer now appeals, raising two issues for our review:

1. Whether the State presented sufficient evidence at trial to support Harmeyer's conviction; and

2. Whether Harmeyer's sentence is inappropriate under Indiana Appellate Rule 7(B).

[2] We affirm.

Facts and Procedural History

[3] On December 8, 2024, Harmeyer purchased two pints of whiskey before driving to visit his friend Dustin Tekulve's home in Ripley County, Indiana. Harmeyer wanted to “get to [Dustin's] as fast as [he] could so [he] could get drunk.” Tr. Vol. II at 147. A “little before 3:00 p.m.,” id. at 75, Harmeyer passed Dustin's driveway and drove his truck into next-door-neighbor Lunsford's yard, “crush[ing]” Lunsford's culvert, id. at 76. Harmeyer continued driving into Lunsford's yard “like he was going on towards [the] back yard” until Lunsford waved him down and yelled at him to stop. Id. at 76. Harmeyer stopped the truck and put it in park. When Harmeyer exited the truck, he “fell out [of it] onto the ground” and landed on his back. Id. at 78. Once he stood up, Harmeyer began cussing and told Lunsford that “he was going to drive on back through the yard.” Id. at 79. Lunsford kept his distance from Harmeyer because “[Harmeyer] wasn't acting right” and Lunsford “didn't want no aggression [or] anything to happen.” Id. at 80. Lunsford believed Harmeyer “looked like he was under the influence,” id. at 91, and he could only understand “[b]its and pieces” of what Harmeyer was saying because he was slurring his words. Id. at 80.

[4] Dustin's wife Meredith Tekulve saw Harmeyer's truck in Lunsford's yard, so she and Dustin walked over. Meredith drove Harmeyer's truck to her driveway and “took his keys,” Tr. Vol. II at 85, while Dustin “pushed” Harmeyer out of Lunsford's yard, id. at 84. Lunsford's wife called law enforcement, and Lunsford made a report because he was afraid Harmeyer would “drive off and kill somebody,” id. at 89.

[5] Ripley County Sheriff's Deputy William Thompson responded to the call and arrived at the Tekulve residence approximately 30 minutes later, where he learned that Harmeyer had been the one driving the truck. When Deputy Thompson approached Harmeyer, he observed that Harmeyer had a “massive wet spot” on the front of his pants “from his groin area all of the way down his legs,” and he was “swaying back and forth.” Tr. Vol. II at 105. Harmeyer's “words were slurred,” id., and Deputy Thompson could smell the odor of an alcoholic beverage emanating from him. Harmeyer denied driving his truck on Lunsford's property and told Deputy Thompson that he “had much of nothing” to drink that day, id. at 107.

[6] Because he observed multiple signs of intoxication, Deputy Thompson administered a horizontal gaze nystagmus test, which positively indicated all six signs of intoxication. Harmeyer was unsteady on his feet, so Deputy Thompson terminated the “walk and turn” and the “one leg stand” portions of the Standardized Field Sobriety Tests due to safety concerns. Tr. Vol. II at 110–11. Harmeyer consented to a blood draw, so Deputy Thompson drove him to a local hospital. En route, Harmeyer “changed his story and he start[ed] saying he was drinking while he was at the [Tekulve] residence.” Id. at 112. Harmeyer's blood was drawn less than three hours after he drove and indicated an ACE of .204.

[7] The State charged Harmeyer with one count each of operating a vehicle while intoxicated (“OWI”) as a Class A misdemeanor,¹ operating a vehicle with an ACE of .15 or more as a Class A misdemeanor,² OWI as a Class C misdemeanor,³ and operating a vehicle with an ACE of .08 or more as a Class C misdemeanor ⁴ . Before trial, the State dismissed the OWI as a Class A misdemeanor charge. The State correspondingly charged three enhanced offenses based on Harmeyer's prior OWI convictions: one count of OWI as a Level 6 felony ⁵ and two counts of operating a vehicle with an ACE over a certain threshold as Level 6 felonies ⁶ . The State also alleged Harmeyer was a habitual vehicular substance offender.⁷

[8] At the trial, Harmeyer testified and denied drinking before he arrived at Dustin's house. Harmeyer claimed that he drank two pints of whiskey and some vodka in “seven to ten minutes” in Dustin's garage before Deputy Thompson arrived. Tr. Vol. II at 153. A jury found Harmeyer guilty of only OWI as a Class C misdemeanor and not guilty of the two misdemeanor counts of operating a vehicle with an ACE over a certain threshold ⁸ . After the jury verdict, Harmeyer admitted to the corresponding Level 6 enhancement, that is, having a prior OWI conviction within seven years. Harmeyer also admitted to being a habitual vehicular substance offender. The trial court convicted Harmeyer of OWI as a Level 6 felony, found that he was a habitual vehicular substance offender, and sentenced Harmeyer to ten-and-a-half years at the Indiana Department of Correction (“DOC”). This appeal ensued.

Discussion and Decision

1. The State Presented Sufficient Evidence to Support Harmeyer's Conviction

[9] Harmeyer argues that the State presented insufficient evidence at trial to support his conviction for OWI as a Level 6 felony. 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).

[10] A person commits OWI as a Class C misdemeanor when that person operates a vehicle while intoxicated. Ind. Code § 9-30-5-2(a). The offense is a Level 6 felony if the person has a prior OWI conviction within the last seven years. Id. § 9-30-5-3(a). Harmeyer argues only that the State failed to prove the temporal element—that he was intoxicated “while he was operating the vehicle.” Appellant's Br. at 13.

[11] “[I]t is well settled that ‘circumstantial evidence alone’ can sustain a ․ conviction.” Hancz-Barron, 235 N.E.3d at 1245 (quoting Sallee v. State, 51 N.E.3d 130, 134 (Ind. 2016)). In Weida v. State, the defendant was charged with and convicted of operating a vehicle while intoxicated after driving his truck into a ditch. 693 N.E.2d 598, 599–600 (Ind. Ct. App. 1998), trans. denied. On appeal, the defendant argued in relevant part that the State did not establish that he was driving “while” intoxicated. Id. at 600. This court disagreed because the evidence and reasonable inferences supporting the conviction showed that the defendant had been drinking alcohol sometime before the wreck, the defendant admitted to driving the truck, the truck was not in the ditch when a law enforcement officer drove through the area an hour before, and the breath test that was administered to the defendant within three hours of the wreck indicated he had a blood alcohol level of 0.22. Id. We determined that “[u]nder such circumstances, intoxication at the time the person operated the vehicle may be presumed.” Id. at 600–01 (citing I.C. §§ 9-30-6-2, -15).

[12] Here, the probative evidence and reasonable inferences supporting the verdict show that Harmeyer was intoxicated when he drove his truck into Lunsford's yard. Harmeyer fell out of his truck when he exited it, and he was slurring his words when speaking to Lunsford. When the Tekulves walked over to Lunsford's property, Meredith drove Harmeyer's truck to her house while Dustin pushed Harmeyer off of Lunsford's property. When Deputy Thompson arrived at the Tekulve residence approximately 30 minutes later, Harmeyer had “soiled [his] pants” and was “swaying back and forth,” id. at 105. Harmeyer's blood, which was drawn less than three hours after he operated his truck, revealed an ACE of .204. The facts of this case are comparable to those in Weida. The reasonable inference from the evidence supporting the verdict is that Harmeyer was intoxicated when he drove his truck onto Lunsford's property. The jury was free to disbelieve Harmeyer's self-serving testimony that he did not start drinking until he arrived at the Tekulve residence. See Sallee, 51 N.E.3d at 134–35; Norris v. Norris, 275 N.E.3d 505, 511 (Ind. 2026) (quoting Thompson v. State, 804 N.E.2d 1146, 1149 (Ind. 2004)). Based on the foregoing, we cannot say the State presented insufficient evidence to support Harmeyer's conviction.

2. Harmeyer's Sentence Is Not Inappropriate under Appellate Rule 7(B)

[13] Harmeyer argues his sentence is inappropriate under Indiana Appellate Rule 7(B) and should be revised. The Indiana Constitution authorizes us to independently review and revise a trial court's sentencing decision. Tillett v. State, 278 N.E.3d 359, 366 (Ind. 2026) (citing Ind. Const. art. 7, §§ 4, 6). That authority is implemented through Appellate Rule 7(B), which permits us to revise a sentence if, “after due consideration of the trial court's decision,” we conclude “that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” Id. (quoting Ind. Appellate Rule 7(B)).

[14] The defendant bears the burden of producing compelling evidence that “his or her sentence has met the inappropriateness standard of review.” Tillett, 278 N.E.3d at 366 (alteration omitted) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)). A defendant “need not ‘necessarily prove’ ” that the sentence is inappropriate based on both the nature of his offense and his character, Lane v. State, 232 N.E.3d 119, 126 (Ind. 2024) (emphasis in original) (quoting Connor v. State, 58 N.E.3d 215, 219 (Ind. Ct. App. 2016)), but “to the extent the evidence on one prong militates against relief, a claim based on the other prong must be all the stronger to justify relief,” id. at 127 (citing Connor, 58 N.E.3d at 220).

[15] Whether a sentence is inappropriate “turns on our sense of the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Tillett, 278 N.E.3d at 366 (quoting McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020)). “We generally defer to the trial court's decision,” id. (citing Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012)), but “we are not limited to the mitigators and aggravators found by the trial court,” Brown v. State, 10 N.E.3d 1, 4 (Ind. 2014). “Our role is to ‘leaven the outliers,’ which means we exercise our authority only in ‘exceptional cases.’ ” Tillett, 278 N.E.3d at 366 (quoting Russell v. State, 234 N.E.3d 829, 856 (Ind.), cert. denied, 145 S. Ct. 424 (2024)).

[16] A trial judge may impose any sentence within the statutory range without regard to the existence of aggravating or mitigating factors. Anglemyer v. State, 868 N.E.2d 482, 489 (Ind. 2007). When considering the nature of the offense, we start with the advisory sentence. Brown, 10 N.E.3d at 4 (citing Anglemyer, 868 N.E.2d at 494). Here, Harmeyer was convicted of and sentenced on one Level 6 felony. “A person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” I.C. § 35-50-2-7(b) (effective July 1, 2019 to June 30, 2025) (emphasis added). On his Level 6 felony conviction, the trial court sentenced Harmeyer to two-and-a-half years executed at the DOC. Because Harmeyer was found to be a habitual vehicular substance offender, his Level 6 felony conviction was to be enhanced by an additional fixed term between one and eight years. See I.C. § 9-30-15.5-2(d). The trial court enhanced that conviction by eight years. In total, the trial court sentenced Harmeyer to ten-and-a-half years executed at the DOC.

[17] Where, as here, the trial court deviated from the advisory sentence, one factor we consider is “whether there is anything more or less egregious about the offense committed by the defendant that makes it different from the ‘typical’ offense accounted for by the legislature when it set the advisory sentence.” T.A.D.W. v. State, 51 N.E.3d 1205, 1211 (Ind. Ct. App. 2016) (quoting Holloway v. State, 950 N.E.2d 803, 806–07 (Ind. Ct. App. 2011)), as amended (May 26, 2023). We also consider whether the offense was “accompanied by restraint, regard, and lack of brutality.” Tillett, 278 N.E.3d at 366 (quoting Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015)).

[18] As set forth in more detail above, Harmeyer drank enough alcohol that he fell onto the ground when exiting his vehicle, slurred his words so much it was difficult to understand him, and soiled his pants. Additionally, Harmeyer's ACE was more than double the legal limit for operating a vehicle. Harmeyer's conduct demonstrated a complete lack of regard for other motorists and members of the community. See Konkle, 253 N.E.3d at 1093.

[19] In considering the character of the offender, “we engage in a broad consideration of a defendant's qualities,” T.A.D.W., 51 N.E.3d at 1211 (citing Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on reh'g), including whether the defendant has “substantial virtuous traits or persistent examples of good character,” Tillett, 278 N.E.3d at 366 (quoting Stephenson, 29 N.E.3d at 122).

[20] Harmeyer has an extensive criminal history—7 misdemeanor convictions, 11 felony convictions, and 10 probation violations. At least five of these prior convictions were for operating a vehicle while intoxicated, and Harmeyer “had only been out of prison a little over a year when he committed the present offense,” Appellant's App. Vol. II at 185. While on pretrial release in this cause, Harmeyer was charged in a separate cause with public intoxication as a Class B misdemeanor.

[21] Despite his lengthy criminal history, Harmeyer argues his sentence is inappropriate based on his work history, familial responsibilities, and “struggles with alcoholism.” Appellant's Br. at 18. Given Harmeyer's criminal history and his decision to repeatedly drive while intoxicated, this evidence does not “weigh[ ] heavily in favor” of revising his sentence, Lane, 232 N.E.3d at 126. Based on the foregoing, we cannot say that Harmeyer has produced compelling evidence demonstrating that the nature of his offense or his character renders his sentence inappropriate. Harmeyer's sentence is not inappropriate under Appellate Rule 7(B).

Conclusion

[22] In sum, the State presented sufficient evidence to support Harmeyer's conviction, and Harmeyer's sentence is not inappropriate. We therefore affirm the trial court on all issues raised.

[23] Affirmed.

FOOTNOTES

1.   Ind. Code § 9-30-5-2(a), (b).

2.   I.C. § 9-30-5-1(b) (effective July 1, 2021 to June 30, 2025).

3.   I.C. § 9-30-5-2(a).

4.   I.C. § 9-30-5-1(a) (effective July 1, 2021 to June 30, 2025).

5.   I.C. §§ 9-30-5-2(a), -3(a)(1).

6.   I.C. §§ 9-30-5-1(a), (b) (effective July 1, 2021 to June 30, 2025), -3(a)(1).

7.   I.C. § 9-30-15.5-2.

8.   The two Level 6 felony ACE counts corresponding to the two misdemeanor ACE counts were dismissed after the jury verdict.

Felix, Judge.

Tavitas, C.J., and Bradford, J., concur.