MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                             FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                               Feb 18 2020, 8:37 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Chad A. Montgomery                                       Curtis T. Hill, Jr.
Montgomery Law Office                                    Attorney General of Indiana
Lafayette, Indiana
                                                         Robert L. Yates
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kerry L. Bush,                                           February 18, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1639
        v.                                               Appeal from the Warren Circuit
                                                         Court
State of Indiana,                                        The Honorable Hunter Reece,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         86C01-1804-F6-37



Robb, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020                Page 1 of 13
                                Case Summary and Issues
[1]   A jury found Kerry Bush guilty of operating a vehicle while intoxicated

      (“OWI”) and operating a vehicle with an alcohol concentration equivalent

      (“ACE”) to .08 or more, both Class C misdemeanors, and operating a vehicle

      with suspended driving privileges and a prior conviction (“operating while

      suspended”), a Class A misdemeanor.1 The trial court subsequently found that

      Bush had a prior conviction for OWI within the past five years so as to elevate

      the Class C misdemeanors to Level 6 felonies and further found Bush to be an

      habitual vehicular substance offender. The trial court sentenced Bush to two

      years for the OWI conviction enhanced by seven years due to his habitual

      vehicular substance offender status, to be served in the Indiana Department of

      Correction, with four years suspended to probation.2 Bush appeals and raises

      two issues for our review, which we restate as: 1) whether there is sufficient

      evidence to show that he “operated” a vehicle, and 2) whether his nine-year

      sentence is inappropriate in light of the nature of his offenses and his character.

      Concluding that there is sufficient evidence to support his convictions and his

      sentence is not inappropriate, we affirm.




      1
       Operating a motor vehicle on a highway with suspended driving privileges is a Class A infraction. Ind.
      Code § 9-24-19-1. If a person knows their driving privileges are suspended and operates a motor vehicle on a
      highway less than ten years “after the date on which judgment was entered against the [person] for a prior
      unrelated violation of section 1,” the offense is a Class A misdemeanor. Ind. Code § 9-24-19-2.
      2
       The trial court vacated the operating with an ACE of .08 or more conviction over double jeopardy concerns
      and did not sentence Bush to any time for the operating while suspended conviction. See Appealed Order at
      3.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020               Page 2 of 13
                            Facts and Procedural History
[2]   Around midnight on April 20, 2019, Deputies Brennan Hutchison and Brant

      Needler of the Warren County Sheriff’s Office responded to a report of a

      rollover crash on State Road 55. Upon arrival, the deputies noticed “debris all

      over the roadway” and a vehicle in a ditch that had its windows broken, top

      crushed, and windshield shattered. Transcript, Volume 2 at 57. No one was in

      the vehicle when deputies arrived, but they were eventually notified that the

      vehicle belonged to Bush. Bush’s identification card and his checkbook were

      also located at the scene. Because the accident “appeared to be very serious”

      and “[p]otentially life threatening[,]” the deputies and other emergency

      personnel began searching the area for injured individuals. Id. at 70, 72.


[3]   Deputy Needler located Bush three-quarters of a mile from the car lying face

      down and motionless in a ditch. Deputy Needler “thought it was bad[,]” but to

      his surprise, Bush immediately got up and began speaking with him. Id. at 74.

      Deputy Needler observed that Bush was bleeding and had “glass shar[d]s in his

      forehead[,]” and found it odd that if Bush was conscious, he had not flagged

      down any of the “multiple emergency vehicles [that had gone] by with sirens[.]”

      Id. Bush denied having been involved in an accident despite his physical

      condition and said he did not want to be treated by emergency personnel.

      Nonetheless, Deputy Needler drove Bush back to the crash site for treatment.

      During the ride there, Bush told Needler that he was returning from Lafayette

      and headed home. Deputy Needler identified signs of intoxication, including

      that Bush smelled of alcohol and had glassy eyes and unsteady balance. Bush

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 3 of 13
      indicated that he had consumed alcohol that evening and informed Deputy

      Needler that “he believe[d] he would be above the legal limit.” Id. at 90.


[4]   While Bush was being attended to by emergency personnel, Bush told Deputy

      Needler that “Lisa,” a woman whom he had met earlier in the day, had been

      driving his vehicle, not him. However, Bush could not provide any additional

      information about Lisa, nor did he show any concern for her. Nevertheless,

      officers searched the area for fifteen or twenty minutes looking for Lisa but

      could not locate her, nor did they find any indication that someone else had

      been in the vehicle. Deputies even called the local hospital, but no one had

      checked in as a result of a car accident. Deputy Needler transported Bush to the

      Warren County Jail for field sobriety and chemical tests. Bush failed the field

      sobriety tests, and the results of his chemical test showed he had an ACE of

      .13%.


[5]   The State charged Bush with OWI and operating a vehicle with an ACE of .08

      or more, alleging on a separate page of the information that he had a prior OWI

      conviction within five years of these offenses which would elevate both to Level

      6 felonies. He was also charged with operating while suspended, a Class A

      misdemeanor. The State later amended the charging information to add an

      habitual vehicular substance offender enhancement, alleging that Bush had

      accumulated two or more prior unrelated vehicular substance abuse offense

      convictions. A jury found Bush guilty of OWI, operating with an ACE of .08 or

      more, and operating while suspended. Bush waived his right to a jury for the

      enhancement phase of the trial, and the trial court found that Bush had a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 4 of 13
      previous OWI conviction within the past five years. The trial court also found

      Bush to be an habitual vehicular substance offender.


[6]   At his sentencing hearing, Bush testified that he has support from his family

      and has worked for nearly forty years. In determining Bush’s sentence, the trial

      court considered Bush’s criminal history an aggravating circumstance and did

      not find any mitigating circumstances. The trial court entered judgment of

      conviction for OWI as a Level 6 felony and operating while suspended. The

      trial court sentenced Bush to nine years: two years for OWI, enhanced by seven

      years due to his habitual vehicular substance offender status, with four years

      suspended to probation. Bush now appeals.



                                 Discussion and Decision
                              I. Sufficiency of the Evidence
                                      A. Standard of Review
[7]   Bush challenges the sufficiency of the evidence to support his convictions of

      Level 6 felony OWI and Class A misdemeanor operating while suspended. Our

      standard of review in this area is well-settled: when reviewing the sufficiency of

      the evidence to support a conviction, we do not reweigh the evidence or judge

      the credibility of the witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

      2009). Rather, we consider only the evidence supporting the verdict and any

      reasonable inferences drawn therefrom. Id. Thus, we consider conflicting

      evidence “most favorably to the [verdict].” Drane v. State, 867 N.E.2d 144, 146


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 5 of 13
      (Ind. 2007) (internal quotations omitted). “We will affirm if there is substantial

      evidence of probative value such that a reasonable trier of fact could have

      concluded the defendant was guilty beyond a reasonable doubt.” Bailey, 907

      N.E.2d at 1005.


                                    B. “Operating” a Vehicle
[8]   To convict Bush of OWI as a Level 6 felony, the State had to prove beyond a

      reasonable doubt that Bush: 1) operated a vehicle; 2) while intoxicated; and 3)

      while having a prior conviction of operating while intoxicated that occurred

      within the last five years. See Ind. Code §§ 9-30-5-2(a), 9-30-5-3(a)(1) (2014).

      Similarly, to convict Bush of operating a vehicle with suspended driving

      privileges as a Class A misdemeanor, the State had to prove that Bush 1) knew

      his driving privileges were suspended; and 2) operated a motor vehicle upon a

      highway; 3) with a prior unrelated conviction for operating while suspended

      within the last ten years. Ind. Code § 9-24-19-2. Bush claims only that the State

      failed to prove beyond a reasonable doubt that he “operated” his vehicle. See

      Tr., Vol. 2 at 123; Appellant’s Brief at 12.


[9]   The Indiana Code defines “operate” as “to navigate or otherwise be in actual

      physical control of a vehicle[.]” Ind. Code § 9-13-2-117.5. Whether a defendant

      has “operated” a vehicle is a question of fact to be determined by examining the

      surrounding circumstances. Custer v. State, 637 N.E.2d 187, 188 (Ind. Ct. App.

      1994). We have considered the following factors in assessing whether a person

      has operated a vehicle: 1) the location of the vehicle when discovered; 2)


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 6 of 13
       whether the car was moving when discovered; 3) any additional evidence

       indicating that the defendant was observed operating the vehicle before he or

       she was discovered; and 4) the position of the automatic transmission. Crawley

       v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied. This is not an

       exclusive list and therefore, “[a]ny evidence that leads to a reasonable inference

       should be considered.” Id.


[10]   In support of his argument that the State offered insufficient evidence that he

       “operated” the vehicle, Bush relies on Mordacq v. State, 585 N.E.2d 22 (Ind. Ct.

       App. 1992). There, an officer observed a vehicle parked alongside the road with

       its engine running. An hour later, the officer returned to find that the vehicle

       was still there, and that the defendant was asleep in the driver’s seat with the

       engine still running. After the defendant was awakened, the officer noticed the

       odor of alcohol on the defendant’s breath. The defendant told the officer that

       she had driven to that area at least two hours earlier, but there was no other

       evidence as to how or when the vehicle arrived at that location. The defendant

       was convicted of operating a vehicle with a blood alcohol content over the legal

       limit. A panel of this court reversed the conviction, holding that there was

       insufficient evidence that the defendant had operated her vehicle, in part,

       because there was “no evidence that [her] car was stopped in the travel portion

       of the roadway[; the officer] consistently used the word ‘parked.’” Id. at 24

       (comparing cases finding “operation” where defendant was found behind the




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 7 of 13
       wheel of a running vehicle in the median of a highway, at an intersection, and

       stopped in a lane of traffic).3


[11]   Mordacq is clearly distinguishable. Deputies Needler and Hutchinson located

       Bush’s severely damaged rolled vehicle in a ditch, not simply parked alongside

       the roadway like in Mordacq. Although Bush was not in the vehicle when it was

       discovered, Bush was found nearby. He insisted that he had not been in an

       accident, but he was injured, the vehicle was registered to him, and his personal

       effects were found in and around the vehicle. He told Deputy Needler that he

       was returning home from Lafayette and only after several minutes had passed

       did he mention that someone else had been driving the vehicle. However, no

       evidence was found to support his assertion that there was another person in the

       car. From the location of Bush’s vehicle, his physical condition, and the lack of

       evidence of a second person, it can be inferred that Bush was in actual physical

       control of his vehicle when it left the highway and rolled into the ditch and that

       he met the statutory definition of “operate.” Bush’s argument that we should

       conclude otherwise is merely a request for us to reweigh the evidence, which we

       will not do. See Bailey, 907 N.E.2d at 1005. Therefore, the State proved beyond

       a reasonable doubt that Bush “operated” a vehicle.




       3
         Mordacq was decided before the definition of “operating” was added to the Indiana Code, and the court
       therefore deduced the meaning of “operating” from the statutory definition of “operator.” 585 N.E.2d at 23
       (citing Ind. Code § 9-13-2-118(a)(1) (1991)).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020              Page 8 of 13
                                  II. Inappropriate Sentence
                                         A. Standard of Review
[12]   We may review and revise criminal sentences pursuant to the authority derived

       from Article 7, section 6 of the Indiana Constitution. Indiana Appellate Rule

       7(B) empowers us to revise a sentence “if, after due consideration of the trial

       court’s decision, [we] find[] that the sentence is inappropriate in light of the

       nature of the offense and the character of the offender.” Therefore, when

       reviewing a sentence, we give deference to the trial court’s sentencing decision

       because Rule 7(B) requires us to give “due consideration” to the decision and

       we recognize the unique perspective of the trial court in making sentencing

       decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). “Such

       deference should prevail unless overcome by compelling evidence portraying in

       a positive light the nature of the offense . . . and the defendant’s character[.]”

       Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Our principal role in Rule

       7(B) review is to “leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219,

       1225 (Ind. 2008).


[13]   The defendant carries the burden to persuade us that the sentence imposed by

       the trial court is inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

       2006), and we may look to any factors appearing in the record in making such a

       determination, Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). The

       question under Rule 7(B) is “not whether another sentence is more appropriate;

       rather, the question is whether the sentence imposed is inappropriate.” King v.

       State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008).
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 9 of 13
                                       B. Nature of the Offense
[14]   We begin our analysis of the nature of the offense with the advisory sentence,

       which is the starting point selected by the legislature as an appropriate sentence.

       Reis, 88 N.E.3d at 1104. Bush was convicted of OWI as a Level 6 felony,

       operating while suspended as a Class A misdemeanor, and was found to be an

       habitual vehicular substance offender. The advisory sentence for a Level 6

       felony is one year, with a minimum sentence of six months and a maximum

       sentence of two and one-half years. Ind. Code § 35-50-2-7(b). The maximum

       sentence for a Class A misdemeanor is one year. Ind. Code § 35-50-3-2. The

       minimum sentence enhancement for a person found to be an habitual vehicular

       substance offender is one year and the maximum enhancement is eight years.

       Ind. Code § 9-30-15.5-2(d). Bush was sentenced to two years for his Level 6

       felony conviction and no years for his Class A misdemeanor; his sentence was

       enhanced by seven years due to his habitual vehicular substance offender status.

       Although Bush’s sentence for the Level 6 felony conviction and the

       enhancement for the habitual offender status were above the minimum, they

       still fell short of the maximum sentence allowed.


[15]   The nature of the offense is found in the details and circumstances surrounding

       the offense and the defendant’s participation therein. Perry v. State, 78 N.E.3d 1,

       13 (Ind. Ct. App. 2017). Bush has not offered an argument regarding the nature

       of his offenses; however, they are serious. Bush drove his vehicle with an ACE

       of .13%, which is well above the legal limit of .08% in Indiana. Not only did

       Bush drive while intoxicated, he drove in a manner that caused his vehicle to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 10 of 13
       roll into a ditch, causing substantial damage to his vehicle and injury to himself.

       Bush did not wait for emergency assistance; rather, he tried to escape

       responsibility by leaving the scene of a serious accident and seemed to be hiding

       from emergency personnel. Bush’s irresponsible actions could have endangered

       other individuals driving on the road or even killed them. Bush’s actions show a

       disregard for others and nothing about the nature of his offenses leads us to

       believe that his sentence is inappropriate.


                                    C. Character of the Offender
[16]   A defendant’s life and conduct are illustrative of his character. Washington v.

       State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. One relevant

       factor in assessing character is a defendant’s criminal history. Rutherford v. State,

       866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of criminal history

       varies based on the gravity, nature, and number of prior offenses in relation to

       the current offense. Id. Bush has a criminal record dating back to 1997. Bush’s

       criminal history consists of two prior convictions for operating a vehicle while

       intoxicated as Class A misdemeanors; two prior convictions for operating while

       intoxicated with a prior conviction, both felonies; public intoxication, a Class B

       misdemeanor; possession of marijuana, domestic battery, resisting law

       enforcement, and three driving while suspended convictions, all Class A

       misdemeanors; and one prior habitual vehicular substance offender

       determination in 2015. Bush has been placed on and violated probation

       multiple times and was on probation at the time he committed the instant

       offense. The nature of many of Bush’s prior offenses are similar to the instant

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 11 of 13
       offenses, and despite his numerous contacts with the justice system, he was not

       deterred from committing the current offenses.


[17]   Further, Bush attempted to cover up his crime by evading law enforcement and

       fabricating a story. When officers located Bush, he was face down in a ditch

       three-quarters of a mile away from the accident. He made no attempt to flag

       down passing emergency vehicles, even in light of his physical condition. This

       indicates that Bush likely fled the scene with the intention of escaping

       punishment. Even after being discovered, Bush repeatedly told Deputy Needler

       that he was not involved in an accident despite clearly being injured. Although

       Bush initially told Deputy Needler that he was returning home from Lafayette,

       several minutes later, Bush claimed that a woman whom he had met that day

       drove his vehicle. However, Bush could not provide Deputy Needler with any

       details about this woman, nor did he show any concern for her well-being.

       Despite searching the area and calling local hospitals, deputies did not locate

       the woman or find anything belonging to her that would indicate she had been

       with Bush.


[18]   In an attempt to portray his character in a positive light, Bush emphasizes that

       he has support from his family and has held a job for nearly forty years;

       however, we are unpersuaded that family support and steady employment

       overcome his significant criminal history and the serious nature of his current

       offenses. Accordingly, Bush has failed to establish that his character renders his

       sentence inappropriate.



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 12 of 13
                                               Conclusion
[19]   The State presented sufficient evidence to support Bush’s convictions for OWI

       and operating while suspended, and Bush’s sentence is not inappropriate in

       light of the nature of his offenses and his character. Accordingly, we affirm.


[20]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020   Page 13 of 13
