MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                      May 18 2020, 11:25 am
regarded as precedent or cited before any
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
Scott H. Duerring                                       Marjorie Lawyer-Smith
South Bend, Indiana                                     Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Steven Glenn Connors,                                   May 18, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2846
        v.                                              Appeal from the
                                                        St. Joseph Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Julie P. Verheye, Magistrate
                                                        Trial Court Cause No.
                                                        71D05-1908-CM-2950



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020                   Page 1 of 9
[1]   Steven Glenn Connors (“Connors”) appeals his conviction for operating a

      vehicle while intoxicated1 as a Class C misdemeanor. Connors raises one issue,

      which we revise and restate as whether the evidence was sufficient to support

      his conviction.


[2]   We affirm.


                                      Facts and Procedural History
[3]   On August 16, 2019, Officer Anthony VanOverberghe (“Officer

      VanOverberghe”) responded to an accident at “a little after four o’clock” in the

      afternoon at the intersection of Huron Street and Crumstown Trail in St. Joseph

      County involving Connors and another driver. Tr. Vol. II at 19-20, 27. Officer

      VanOverberghe responded to the call “probably within 5, 10 minutes” of

      receiving the call, although he could not recall the precise time that he had

      received the call. Id. at 27. When he arrived at the scene of the accident,

      medics were with the other driver. Id. at 20. Officer VanOverberghe was told

      there were no serious injuries involving the other driver, and he proceeded to

      Connors’s vehicle. Id. Connors was leaning against his vehicle, and Officer

      VanOverberghe could “smell the odor of alcohol” on Connors. Id. at 21.

      Connors complied with Officer VanOverberghe’s request to step away from his

      vehicle, and Officer VanOverberghe noted that Connors “staggered and

      eventually backed up to the car again” to lean on the vehicle. Id. at 30. Officer




      1
          See Ind. Code § 9-30-5-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020   Page 2 of 9
      VanOverberghe then administered three field sobriety tests to Connors: the

      horizontal gaze nystagmus test; the walk-and-turn test; and the one-legged

      stance test. Id. at 21-23. Connors failed each test and was taken into custody.

      Id. at 24. Connors was unable to complete a portable breath test and refused a

      chemical test, so Officer VanOverberghe applied for a warrant for a blood draw

      and transported Connors to the hospital to conduct the blood draw. Id. at 24-

      26. At the hospital, Connors also received medical treatment for his ribs, which

      were injured in the accident. Id. at 31, 66. Connors’s blood was drawn at the

      hospital that same day at 9:15 p.m. and sent to the Indiana State Department of

      Toxicology, which later showed that Connors’s blood alcohol content was

      0.114. Id. at 35, 53-54; State’s Exs. 1, 5.


[4]   On August 19, 2019, the State charged Connors with operating a vehicle while

      intoxicated as a Class C misdemeanor. Appellant’s Conf. App. Vol. II at 2. On

      November 7, 2019, as the bench trial began, the State moved to add a second

      count, operating a vehicle with a blood alcohol content of at least .08 as a Class

      C misdemeanor. Tr. Vol. II at 15-16. The trial court granted the State’s motion

      over Connors’s objection.2 Id. at 16-17. Before the conclusion of the trial,

      Connors moved to dismiss the charges, arguing there was no evidence

      presented that he operated the vehicle while he was intoxicated. Id. at 58. The

      trial court denied Connors’s motion to dismiss. Id. at 61. Connors then




      2
       The trial court’s chronological case summary shows this offense was charged under Ind. Code § 9-30-5-1.
      Appellant’s Conf. App. Vol. 2 at 27.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020                    Page 3 of 9
testified in his own defense, providing his account of the accident and timing of

his alcohol consumption in relation to his operation of his vehicle:


        A. A girl ran a stop sign, I tried to avoid her, she
        blasted the side of my car, spun it. All my airbags
        deployed, I got knocked out. I woke up, some girls or
        ladies ran up and asked if I was okay. I remember pushing
        like a bullet-proof vest from the driver’s window to get
        out of my vehicle. And I was dazed and confused.
        And there was a party started up the driveway and I
        walked up to the driveway. And I’ve been incarcerated ever
        since or I would go to that driveway and show you. And
        everybody --

        Q. So when did you --

        A. (Continuing) -- was asking me for a ride out of there.
        And I was drinking with them.

        Q. Did you -- let me ask you a question. When did you
        encounter the police, was it after that accident?

        A. Yeah, it was 20, 30 minutes later. They showed up
        with the big van and I was still up in the driveway. I was
        still at the end of the driveway by the house. I knew
        everybody there.

Id. at 63-64. Connors added that after the accident, he was “dazed, like

dizzy[,]” but he “went up [the driveway] and they had vodka there, and I did an

orange juice and vodka, and I slammed that, and then a Budweiser. And I

went back down, and then [Officer VanOverberghe] was there.” Id. at 67.

When asked if he disputed that he consumed alcohol, he replied “No. I had

alcohol. I never said I didn’t. But it was after the girl hit me.” Id.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020   Page 4 of 9
[5]   In response to Connors’s testimony concerning the timeline of his alcohol

      consumption, Officer VanOverberghe testified:


              Q. Okay. When you spoke with [Connors] did he at any
              point indicate he had been drinking alcohol after the
              accident?

              A. Yeah, he told me he had a couple drinks.

              Q. Did he indicate those drinks were after the accident?

              A. After the accident? No. I asked him if he had been
              drinking and he said, “Yes.”

              Q. So at no point were you told that there were drinks --
              that [Connors] drank alcohol after the accident?

              A. I was not told that, no.


      Id. at 72.


[6]   At the conclusion of the trial, the trial court stated “I just find your testimony a

      little bit in -- incredible that you were feeling that dazed and confused and that

      your reaction to that is to slam down some alcohol. I just don’t buy that.” Id.

      at 79-80. The trial court found Connors guilty of Count I and Count II, entered

      a judgment of conviction on Count I alone, and sentenced Connors to sixty

      days executed with sixty days credit for time served. Id. at 82; Appellant’s Conf.

      App. Vol. II at 29. Connors now appeals.


                                     Discussion and Decision
[7]   Connors contends that the evidence was insufficient to support his conviction

      for operating a vehicle while intoxicated. Connors maintains that Officer

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020   Page 5 of 9
      VanOverberghe did not observe him driving a vehicle, that there is no evidence

      he consumed alcohol before the accident, and cites Flanagan v. State, 832

      N.E.2d 1139 (Ind. Ct. App. 2005), in support of his position.3 The State

      counters that the evidence presented was sufficient to support Connors’s

      conviction.


[8]   When we review the sufficiency of the evidence to support a conviction, we

      consider only the probative evidence and reasonable inferences supporting the

      verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an

      appellate court to assess witness credibility or to weigh the evidence. Id. We

      will affirm the conviction unless no reasonable factfinder could find the

      elements of the crime proven beyond a reasonable doubt. Id. The evidence

      need not overcome every reasonable hypothesis of innocence. Id. Reversal is

      appropriate only when reasonable persons would be unable to form inferences

      as to each material element of the offense. McCray v. State, 850 N.E.2d 998,

      1000 (Ind. Ct. App. 2006), trans. denied.


[9]   Indiana Code section 9-30-5-2(a) provides, in pertinent part, that “a person who

      operates a vehicle while intoxicated commits a Class C misdemeanor .” To

      sustain a conviction under subsection (a), the State must prove beyond a

      reasonable doubt that (1) the accused; (2) operated; (3) a vehicle; (4) while; (5)




      3
       To the extent that Connors challenges the sufficiency of the evidence for the trial court’s finding him guilty
      of Count II, we note that no judgment of conviction was entered for Count II. Thus, we do not address the
      evidence sustaining Count II.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020                         Page 6 of 9
       intoxicated. Indiana Code section 9-13-2-86, in part, defines “intoxicated” as

       “under the influence of . . . alcohol . . . so that there is an impaired condition of

       thought and action and the loss of normal control of a person’s faculties.”

       Impairment may be established through evidence of the following: “(1) the

       consumption of a significant amount of alcohol; (2) impaired attention and

       reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5)

       unsteady balance; and (6) slurred speech.” Wilkinson v. State, 70 N.E.3d 392,

       400 (Ind. Ct. App. 2017). “Circumstantial evidence is sufficient to prove that

       the defendant operated the vehicle while intoxicated.” Jellison v. State, 656

       N.E.2d 532, 535 (Ind. Ct. App. 1995).


[10]   Connors does not dispute that he consumed alcohol on the day of the accident

       or that he was driving the vehicle when the accident happened. Rather, he

       makes a temporal argument, and in support directs us to Flanagan v. State, 832

       N.E.2d 1139 (Ind. Ct. App. 2005). In Flanagan, the defendant and his

       passenger were traveling from Allen County when their vehicle broke down.

       832 N.E.2d at 1140. Sometime after 4:00 p.m. on that day, a sheriff’s deputy

       observed a disabled vehicle by the side of the road with two men, later

       identified as the defendant and his passenger, standing near the rear of the

       vehicle. Id. The deputy, who was transporting a prisoner, was unable to stop

       for the disabled vehicle but returned later. Id. By this time, the defendant and

       his passenger had started to walk to a local convenience store, and the deputy,

       upon seeing them, offered them a ride. Id. Once inside the car, the deputy

       detected the odor of alcohol and observed that the defendant had red and


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020   Page 7 of 9
       watery eyes and that his speech was slurred. Id. A certified blood test revealed

       that the defendant’s blood alcohol content was .22., and he was convicted of

       OWI and public intoxication. Id. at 1140-41.


[11]   The defendant appealed his OWI conviction, contending that, while he

       admitted to driving and to drinking, the State failed to prove the temporal

       element that he was driving while intoxicated. Noting that the deputy did not

       know how long the car had been disabled before he encountered it at 4:00 p.m.,

       that there were empty beer cans on the floor of the car, and that there was no

       evidence as to whether the defendant consumed the alcohol before he drove or

       after the car broke down, our court reversed the conviction.


[12]   This case is distinguishable from Flanagan. In Flanagan, the defendant’s car was

       broken down beside the road when the police officer came upon it. There was

       no evidence, circumstantial or otherwise, that tended to indicate when the

       defendant drove the vehicle relative to the time he was discovered to be

       intoxicated. Here, in contrast, Officer VanOverberghe arrived at the scene of a

       reported accident at around 4:00 p.m. and “within 5, 10 minutes” after

       receiving the call, and Connors acknowledged that he was driving the vehicle at

       the time of the accident. Tr. Vol. II at 27, 63. While Officer VanOverberghe did

       not personally observe Connors driving the vehicle, when he arrived on the

       scene he found Connors leaning against his vehicle and could “smell the odor

       of alcohol” on Connors, although there was no evidence that alcohol containers

       were found in Connors’s vehicle. Id. at 21, 31. Officer VanOverberghe also

       noted that when he asked Connors to step away from the vehicle Connors

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020   Page 8 of 9
       “staggered[,]” “backed up to the car[,]” and “leaned on it.” Id. at 30. Connors

       then failed each field sobriety test administered to him, admitted to consuming

       alcohol on the day of the accident, and, shortly after the accident, did not tell

       Officer VanOverberghe that his alcohol consumption occurred after the

       accident. Id. at 21-23, 64, 72. The relatively short time span that elapsed

       between the accident and the arrival of Officer VanOverberghe is unlike

       Flanagan where the responding officer had no sense of the length of time the

       vehicle had been disabled. Thus, the evidence in this case permits a reasonable

       trier of fact to infer that Connors’s operation of a vehicle and his intoxicated

       condition both occurred within a relatively short time period. Connors’s

       requests for us to credit his version of the events, in which he testified that his

       alcohol consumption occurred after the accident and before the arrival of

       Officer VanOverberghe to the scene of the accident, is a request to make a

       credibility determination and to reweigh the evidence, which we cannot do. See

       Drane, 867 N.E.2d at 146.


[13]   Based on the evidence and our standard of review, we conclude that sufficient

       evidence supported Connors’s conviction.


[14]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020   Page 9 of 9
