MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                      Jul 03 2019, 7:55 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
John L. Tompkins                                          Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana
                                                          Lauren A. Jacobsen
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kimberly Bachmann,                                        July 3, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2637
        v.                                                Appeal from the Parke Circuit
                                                          Court
State of Indiana,                                         The Honorable Sam A. Swaim,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          61C01-1802-CM-46



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2637 | July 3, 2019                  Page 1 of 6
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Kimberly Bachmann (Bachmann), appeals her

      conviction for operating a vehicle while intoxicated, a Class C misdemeanor,

      Ind. Code § 9-30-5-2(a).


[2]   We affirm.


                                                    ISSUE
[3]   Bachmann presents one issue on appeal: Whether the State produced sufficient

      evidence to prove beyond a reasonable doubt that she operated a vehicle while

      intoxicated.


                      FACTS AND PROCEDURAL HISTORY
[4]   On February 21, 2018, Deputy Shawn Clover (Deputy Clover) of the Parke

      County Sheriff’s Department responded to a call of an accident in the 700 block

      of Centre Parkway in Parke County. When he arrived, Deputy Clover

      observed an SUV that had been driven off the roadway and over a rock. The

      SUV was stuck on the rock and was blocking northbound traffic. Deputy

      Clover opened the door of the SUV to check for passengers and noted that the

      interior of the SUV was still warm. No one was inside the SUV.


[5]   Deputy Clover learned that the SUV was registered to Bachmann and that her

      address was just a few houses away from where the SUV had been left on the

      rock. Deputy Clover knocked on the door of Bachmann’s residence, and she

      answered. Bachmann was hunched over and used the door jamb to support

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2637 | July 3, 2019   Page 2 of 6
      herself as she spoke to Deputy Clover. Bachmann emitted an odor of alcoholic

      beverage, and her speech was slurred. Deputy Clover asked Bachmann if she

      knew why he was there, and she confirmed that she did. Deputy Clover asked

      her how much she had had to drink that night, and she responded, “A lot. I’m

      just leaving the car where it is until I can, like, make it right.” (Exh. 1 at 1:12-

      :19). When Deputy Clover informed her that she had left the scene of an

      accident, Bachmann responded, “I didn’t leave the scene of an accident. I just

      couldn’t get the car off.” (Exh. 1 at 1:28-:31).


[6]   Deputy Clover arrested Bachmann for leaving the scene of an accident and

      operating her vehicle while intoxicated. Bachmann made unsolicited

      comments such as “I know I’m drunk. I drank too much, I know,” and “I’m

      sorry that I messed up,” and, while Deputy Clover prepared to administer a

      portable breathalyzer test, “I’m drunk, you don’t, you don’t have to do that.”

      (Exh. 3 at :04-:10; :31-:33; :54-:56). Bachmann also told Deputy Clover after

      receiving her Miranda advisements that “I’m fine, I’m just a piece of shit that

      makes bad decisions” and “I’m gonna lose everything now because I made bad

      choices.” (Exh. 2 at 2:18-:26).


[7]   On February 22, 2018, the State filed an Information, charging Bachmann with

      operating a vehicle while intoxicated, a Class C misdemeanor, and with leaving

      the scene of an accident, a Class B misdemeanor. On October 5, 2018, the trial

      court convened Bachmann’s bench trial. Before the start of trial, the State

      dismissed the leaving the scene of an accident charge. Deputy Clover testified

      that, in light of his training and experience, he believed that Bachmann was

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2637 | July 3, 2019   Page 3 of 6
      intoxicated when he observed her at her home. The trial court found Bachman

      guilty of operating a vehicle while intoxicated and proceeded to sentencing.

      The trial court sentenced Bachmann to sixty days in the Parke County Jail,

      suspended to time-served, followed by 365 days of probation.


                              DISCUSSION AND DECISION
[8]   Bachmann challenges the evidence supporting her conviction. It is well-

      established that 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 fact-finder

      could find the elements of the crime proven beyond a reasonable doubt. Id.


[9]   To convict Bachmann of the offense of operating a vehicle while intoxicated,

      the State was required to prove that (1) Bachmann; (2) operated the SUV; (3)

      while she was intoxicated. See I.C. § 9-30-5-2(a). Intoxication is defined in

      relevant part as being under the influence of alcohol “so that there is an

      impaired condition of thought and action and loss of normal control of a

      person’s faculties.” I.C. § 9-13-2-86. 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).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2637 | July 3, 2019   Page 4 of 6
[10]   The evidence presented at trial was that Bachmann’s SUV was abandoned

       where it had been driven onto a rock not far from her home. Deputy Clover

       opened the door of the SUV to investigate and noted that its interior was still

       warm. After Deputy Clover arrived at her home, Bachmann exhibited several

       indicia of intoxication—her speech was slurred, she was unsteady on her feet

       and braced herself using the door jamb, and she smelled of alcohol. In Deputy

       Clover’s opinion, Bachmann was intoxicated. Deputy Clover’s observations of

       Bachmann’s slurred speech, unsteadiness, and the odor of alcohol about her

       contributed to a reasonable inference that she was intoxicated. See id.

       Bachmann also admitted that she had been drinking “a lot” and that she had

       driven the SUV onto the rock. (Exh. 1 at 1:12-:19). Bachmann’s statements

       regarding her “bad decisions” and “bad choices” were manifestations of her

       knowledge of her guilt which additionally supported her conviction. (Exh. 2 at

       2:18-:26). The totality of this evidence supported the trial court’s reasonable

       conclusion that Bachmann was intoxicated when she operated her vehicle. See

       Woodson v. State, 966 N.E.2d 135, 143 (Ind. Ct. App. 2012) (finding sufficient

       evidence of intoxication where Woodson smelled of alcohol, his speech was

       slurred, he had an abrasive attitude, he admitted to consuming alcohol, and

       was, in the opinion of the investigating officer, intoxicated).


[11]   Bachmann contends that the State failed to prove that she was intoxicated at

       the time that she operated the SUV because it was not established with certainty

       when the SUV was last driven or how “the observed signs of impairment

       change over time[.]” (Appellant’s Br. p. 10). However, Bachmann does not


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2637 | July 3, 2019   Page 5 of 6
       address the evidence of her admissions present in the record. In addition,

       “[c]ircumstantial 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). Deputy Clover noted that the interior was still warm on that February

       day when he opened the door of the SUV, which supported an inference that

       the vehicle had not been marooned on the rock for a long period of time. When

       Deputy Clover observed Bachmann shortly thereafter exhibiting indicia of

       intoxication, she admitted that she had not consumed any alcohol after she

       arrived home, which also supported an inference that she was intoxicated at the

       time she operated her SUV. Therefore, contrary to Bachmann’s assertions on

       appeal, there was substantial, probative evidence admitted at trial supporting

       each element of the offense. See Drane, 867 N.E.2d at 146.


                                             CONCLUSION
[12]   Based on the foregoing, we conclude that the State proved beyond a reasonable

       doubt that Bachmann operated her vehicle while she was intoxicated.


[13]   Affirmed.


[14]   Bailey, J. and Pyle, J. concur




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2637 | July 3, 2019   Page 6 of 6
