MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                              Feb 25 2020, 10:12 am
court except for the purpose of establishing
                                                                            CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Alexander L. Hoover                                       Curtis T. Hill, Jr.
Law Office of Christopher G. Walter,                      Attorney General of Indiana
P.C.                                                      Steven J. Hosler
Nappanee, Indiana                                         Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jennifer Melissa Milburn,                                 February 25, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2038
        v.                                                Appeal from the St. Joseph
                                                          Superior Court
State of Indiana,                                         The Honorable Paul E. Singleton,
Appellee-Plaintiff.                                       Magistrate
                                                          Trial Court Cause No.
                                                          71D06-1805-CM-1863



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020               Page 1 of 6
[1]   Jennifer Melissa Milburn claims the evidence is insufficient to sustain her

      conviction for operating a vehicle while intoxicated endangering a person as a

      class A misdemeanor. We affirm.

                                           Facts and Procedural History

[2]   On May 11, 2018, the bartender at Rum Village Inn saw Milburn seated at a

      table with a couple of other people, asked if anyone at the table needed

      anything else, and Milburn declined. Later, others at Milburn’s table got up

      and ordered drinks, and when the bartender went to check on Milburn, she had

      one of the mixed drinks in front of her. 1 Jennifer Burks was in the patio area at

      Rum Village Inn, which had a white privacy fence around it, when she heard a

      crash into the fence. Burks walked around the fence and saw a vehicle with

      front-end damage and Milburn in the driver’s seat. According to Burks, “by the

      looks of her, [Milburn] seemed intoxicated. Maybe a little nervous, too,

      because she hit the fence.” Transcript Volume II at 19. Burks told Milburn she

      did not need to be driving. Milburn pulled out into a street “driving very fast,

      and there was a car coming down [the street], and she about ran into that

      vehicle” and “that vehicle had slammed on its brakes or something.” Id. at 21.


[3]   South Bend Police Officer Joel Paschen responded to the scene at Rum Village

      Inn at approximately 8:10 p.m., spoke with witnesses, obtained a license plate

      number from one of the witnesses, noticed the fence was cracked and broken,




      1
          The bartender testified her shift ended at 6:00 p.m.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020   Page 2 of 6
      and discovered a piece of plastic trim from a vehicle. After he determined

      Milburn was the owner of the vehicle, Officer Paschen went to Milburn’s

      address and spoke with her at approximately 8:50 p.m. He matched the piece

      of plastic trim to Milburn’s vehicle and noticed a white paint transfer on the

      front bumper. Officer Dominic Hall performed field sobriety tests at about 9:00

      p.m., and Milburn exhibited all six clues of impairment during the horizontal

      gaze nystagmus test, all eight clues of impairment during the walk-and-turn test,

      and three of the four clues of impairment during the one-leg-stand test.


[4]   The State charged Milburn with: Count I, operating a vehicle while intoxicated

      endangering a person as a class A misdemeanor; Count II operating a vehicle

      with an ACE of .15 or more as a class A misdemeanor; and Count III, leaving

      the scene of an accident as a class B misdemeanor. Following a bench trial, the

      court found Milburn guilty on Counts I and III and not guilty on Count II. The

      court sentenced Milburn to 365 days with 360 days suspended on Count I and

      60 days with 55 days suspended on Count III to be served concurrently, and it

      ordered that Milburn serve her time on weekends.

                                                   Discussion

[5]   When reviewing the sufficiency of the evidence to support a conviction, we

      must consider only the probative evidence and reasonable inferences supporting

      the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

      witness credibility or reweigh the evidence. Id. We consider conflicting

      evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

      unless no reasonable fact-finder could find the elements of the crime proven

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020   Page 3 of 6
      beyond a reasonable doubt. Id. 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 verdict. Id.


[6]   Milburn argues there is no evidence establishing she was intoxicated while she

      was operating her motor vehicle from Rum Village Inn to her residence, the

      bartender never served her an alcoholic beverage, and there were no

      observations by police of her operating her motor vehicle. As to Burks’s

      testimony that she “seemed intoxicated. Maybe a little nervous, too, because

      she hit the fence,” Transcript Volume II at 19, Milburn argues “Burks’s ability

      to distinguish between nervousness and intoxication without any training

      should call this single statement into question.” Appellant’s Brief at 8-9.


[7]   Ind. Code § 9-30-5-2 provides “a person who operates a vehicle while

      intoxicated commits a Class C misdemeanor” and the offense “is a Class A

      misdemeanor if the person operates a vehicle in a manner that endangers a

      person.” “Intoxicated” means “under the influence of: (1) alcohol . . . so that

      there is an impaired condition of thought and action and the loss of normal

      control of a person’s faculties.” Ind. Code § 9-13-2-86. Intoxication may be

      established through evidence of consumption of significant amounts of alcohol,

      impaired attention and reflexes, watery or bloodshot eyes, an odor of alcohol

      on the breath, unsteady balance, failed field sobriety tests and slurred speech.

      Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009), opinion adopted, 929

      N.E.2d 196 (Ind. 2010). The element of endangerment can be established by

      evidence showing the defendant’s condition or operating manner could have

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020   Page 4 of 6
       endangered any person, including the public, the police, or the defendant. Id.

       Endangerment does not require that a person other than the defendant be in the

       path of the defendant’s vehicle or in the same area to obtain a conviction. Id.


[8]    The trial court heard evidence that the bartender at Rum Village Inn observed

       Milburn with a mixed drink in front of her and that Burks heard a crash into the

       privacy fence around the patio area, went around the fence, saw Milburn in a

       vehicle with front-end damage, believed that Milburn seemed intoxicated, and

       told her that she did not need to be driving. The court heard Burks’s testimony

       that Milburn pulled out into a street “driving very fast” and nearly struck

       another moving vehicle. Transcript Volume II at 21. Burks testified she was

       three or four feet from the privacy fence when the crash occurred. The court

       also heard testimony that Milburn exhibited numerous clues of impairment

       when administered field sobriety tests. The court found that the officers’

       testimony was “quite credible.” Id. at 81. Milburn’s arguments are merely a

       request that we reweigh the evidence and judge the credibility of the witnesses,

       which we cannot do. Drane, 867 N.E.2d at 146.


[9]    Based upon the record, we cannot say the inferences made by the trier of fact

       here were unreasonable. We conclude that evidence of probative value exists

       from which the court as the trier of fact could have found Milburn guilty

       beyond a reasonable doubt of operating a vehicle while intoxicated endangering

       a person as a class A misdemeanor.


[10]   Affirmed.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020   Page 5 of 6
[11]   Baker, J., and Riley, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020   Page 6 of 6
