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:

BARBARA J. SIMMONS                                GREGORY F. ZOELLER
Oldenburg, Indiana                                Attorney General of Indiana

                                                  LARRY D. ALLEN
                                                  Deputy Attorney General
                                                  Indianapolis, Indiana

                                                                            May 28 2014, 9:35 am

                               IN THE
                     COURT OF APPEALS OF INDIANA

GARY MAXWELL,                                     )
                                                  )
       Appellant-Defendant,                       )
                                                  )
               vs.                                )      No. 49A05-1308-CR-427
                                                  )
STATE OF INDIANA,                                 )
                                                  )
       Appellee-Plaintiff.                        )


                      APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Kimberly J. Brown, Judge
                     The Honorable Deborah J. Shook, Master Commissioner
                              Cause No. 49F07-1211-CM-77045


                                         May 28, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


SHARPNACK, Senior Judge
                               STATEMENT OF THE CASE

       Gary Maxwell challenges the sufficiency of the evidence supporting his conviction

for Class A misdemeanor operating a vehicle while intoxicated in a manner that

endangers a person. We affirm.

                         FACTS AND PROCEDURAL HISTORY

       At 12:40 a.m. on November 11, 2012, Officer Gregory Stewart of the Indianapolis

Metropolitan Police Department was dispatched to a gas station on South Lynhurst Drive

after an anonymous 911 caller reported that a man in a green car had crashed into a curb

and “d[id]n’t seem fit to drive.” Tr. p. 23. Officer Stewart arrived at the scene less than

two minutes later and found a man, later identified as Maxwell, kneeling down by the

driver’s side front tire of a green car parked near the doors of the store. A woman sat in

the front passenger seat. Officer Stewart asked what happened, to which Maxwell “said

he scratched or scuffed the curb.” Id. at 32. Officer Stewart noticed that the wheel had a

“huge” dent or bend in the rim and that the tire “was just completely flat.” Id.

       Officer Stewart asked Maxwell to stand up. Maxwell lost his balance trying to do

so and fell onto the ice chest in front of the store. He was again asked to stand, but “he

was uneven in his balance and he was having a hard time standing. He actually just like

leaned against the front of that ice chest.” Id. at 32-33.

       Officer Michael Clupper of the Speedway Police Department, who was trained to

recognize drug impairment in drivers and who was part of a DUI task force, also talked

with Maxwell. Officer Clupper noticed that Maxwell’s eyes were bloodshot and watery

and that his speech was slurred and hard to understand. Officer Clupper asked if he had

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been drinking, to which Maxwell said no.            Officer Clupper administered three

standardized field sobriety tests. Maxwell failed two of them.

       Officer Clupper had Maxwell stick out his tongue and noticed that it was green

and that his taste buds were raised, both indications of marijuana use.           He thus

administered a different test to determine if Maxwell was under the influence of drugs

rather than alcohol. The test tended to indicate the presence of cannabis in his system.

       Believing Maxwell was intoxicated, Officer Clupper advised him of Indiana’s

implied consent law. Maxwell consented to a chemical test and was transported to a

hospital where his blood was drawn. He was then arrested.

       The blood test results came back positive for marijuana and Xanax. Following a

bench trial, Maxwell was convicted of Class A misdemeanor operating a vehicle while

intoxicated in a manner that endangers a person. The trial court sentenced him to 365

days, with 363 days suspended to probation and credit for time served. He now appeals.

                             DISCUSSION AND DECISION

       Maxwell’s sole issue on appeal is whether the evidence is sufficient to sustain his

conviction. In reviewing a sufficiency of the evidence claim, we neither reweigh the

evidence nor assess the credibility of witnesses. Bailey v. State, 979 N.E.2d 133, 135

(Ind. 2012). Rather, we look to the evidence and reasonable inferences drawn therefrom

that support the judgment. Id. We affirm if there is probative evidence from which a

reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt.

Id.



                                             3
       Maxwell makes three challenges to the sufficiency of the evidence. He first

argues the evidence is insufficient to show he operated a vehicle, noting that neither the

anonymous 911 caller nor the officers saw him driving the car. However, the evidence

shows the 911 caller reported that a man in a green car had crashed into a curb, and when

Officer Stewart arrived less than two minutes later, Maxwell was kneeling by the front

tire of a green car. Even more probative of this issue is that Maxwell told Officer Stewart

that “he scratched or scuffed the curb,” Tr. p. 32, essentially admitting he was the driver.

A factfinder could reasonably infer that Maxwell drove the car.

       Maxwell next argues the evidence is insufficient to show he was intoxicated.

Specifically, he points out that no medical personnel checked him for injuries and asks us

to speculate that the effects of the crash caused him to be unsteady and to have bloodshot

eyes. We decline to so speculate. The evidence most favorable to the judgment shows

Maxwell’s eyes were bloodshot and watery, his speech was slurred, and that his balance

was so unsteady that he had to lean against the ice chest in front of the store. He failed

two standardized field sobriety tests, and a separate test indicated he was under the

influence of marijuana. The toxicology results of his blood samples showed he had

marijuana and Xanax in his system. A factfinder could reasonably infer that Maxwell

was intoxicated when he crashed the car.

       Maxwell finally argues the evidence is insufficient to show endangerment. We

disagree. “The element of endangerment can be established by evidence showing that the

defendant’s condition or operating manner could have endangered any person, including

the public, the police, or the defendant.” Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct.

                                             4
App. 2009), adopted by 929 N.E.2d 196 (Ind. 2010). Here, Maxwell crashed the car into

a curb with a young woman in the passenger seat.       The front tire of the car was

completely flat, and the wheel had a large dent or bend in the rim. A factfinder could

reasonably infer that Maxwell’s intoxicated driving endangered himself, the young

woman, as well as the public.

      We conclude there is ample evidence to sustain Maxwell’s conviction.

                                   CONCLUSION

      We therefore affirm.

NAJAM, J., and BROWN, J., concur.




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