MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                               Aug 16 2019, 8:56 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
Donald R. Shuler                                         Curtis T. Hill, Jr.
Barkes, Kolbus, Rife & Shuler, LLP                       Attorney General
Goshen, Indiana
                                                         Benjamin J. Shoptaw
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Keevin G. Rassi,                                         August 16, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-459
        v.                                               Appeal from the Elkhart Superior
                                                         Court
State of Indiana,                                        The Honorable Gretchen S. Lund,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         20D04-1804-CM-918



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019                  Page 1 of 11
                                             Case Summary
[1]   Following a bench trial, the court found Keevin G. Rassi guilty of class A

      misdemeanor operating a vehicle while intoxicated (“OWI”) and class B

      misdemeanor leaving the scene of an accident. The court imposed concurrent

      sentences of one year and 180 days, respectively, all suspended to probation.

      Rassi contends that his convictions are not supported by sufficient evidence and

      that his sentence is inappropriate in light of the nature of the offenses and his

      character. We agree with Rassi that his leaving the scene of an accident

      conviction is not supported by sufficient evidence and therefore reverse that

      conviction. In all other respects, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the trial court’s judgment are as follows. At 1:45

      a.m. on April 22, 2018, Bristol Police Department Officer Jerrid Arnold was

      driving westbound on U.S. Highway 20 and approached the intersection of

      County Road 27. At the northeast corner of the intersection, he saw a pickup

      truck with its headlights on approximately five feet off the roadway in a ditch

      owned by the Elkhart County Highway Department. The officer continued

      westbound on Highway 20 “until [he] could safely turn around, then [he] went

      back to the intersection to check on the vehicle[,]” which was facing southeast.

      Tr. at 14. When he returned to the truck, its headlights were off. Officer

      Arnold looked inside the truck and smelled the odor of “burnt rubber inside the

      cabin of the vehicle.” Id.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 2 of 11
[3]   The roadside area north of Highway 20 is “a marsh.” Id. at 15. “It has

      standing water, it has cattails, it’s overgrown, it’s muddy[.]” Id. Officer Arnold

      saw that “vegetation had been knocked over” and also saw “fresh” ruts “about

      a foot deep and about […] four foot in length” where the truck “had attempted

      to […] spin out and […] free itself.” Id. at 16, 15. The road surface was dry,

      and Officer Arnold saw one set of “fresh wet footprints that left the vehicle and

      headed northbound on County Road 27.” Id. at 16. The footprints led “to a

      residence on the west side of the roadway.” Id. at 17. The officer also saw tire

      marks on the road that led to the residence, which was owned by Logan

      Hartsough. The driveway of the residence had “burnout marks in it.” Id. at 41.

      Officer Arnold saw Rassi walking to the front door of the residence, which

      “was approximately 40 to 50 yards north of” the accident site. Id. at 18.


[4]   Rassi’s “pants were wet from about the knee down” and had mud and “cattail

      fur” on them. Id. The tread pattern of his boots matched that of the wet

      footprints on the road. Officer Arnold saw that Rassi “had glassy, bloodshot

      eyes” and “swayed on occasion[.]” Id. He also had “slurred speech” and

      “smelt of an alcoholic beverage.” Id. at 20. Officer Arnold asked Rassi “if he

      had crashed his vehicle.” Id. at 19. Rassi was “very uncooperative.” Id. at 19.

      The officer handcuffed Rassi and conducted a patdown search, which

      uncovered a set of keys to the truck in his right front pocket.


[5]   Officer Arnold asked Rassi to perform three field sobriety tests, all of which he

      failed. Rassi refused to take a certified breath test. Officer Arnold read him his

      Miranda rights, and Rassi replied that “he would not answer questions.” Id. at

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 3 of 11
      51. Officer Arnold obtained a search warrant for a blood draw, which revealed

      a blood alcohol concentration of .182. As the officer transported Rassi to jail,

      Rassi “made the unprovoked statement that he had had six beers.” Id. at 45.


[6]   The State charged Rassi with class A misdemeanor OWI and class B

      misdemeanor leaving the scene of an accident. At Rassi’s bench trial,

      Hartsough testified that he and Rassi had been listening to loud music and

      drinking “in excess” at Hartsough’s home that evening and that he told Rassi

      “he needed to stay.” Id. at 64. Hartsough told Rassi that he had an air mattress

      that he would blow up for him, and he went to the garage to turn his air

      compressor on. At that time, Rassi’s truck was parked in Hartsough’s

      driveway. Hartsough “brought the air hose in, and proceeded to blow up the

      mattress and at that point, [Rassi] had stepped outside[,]” presumably to smoke

      a cigarette. Id. at 65. “Maybe a little bit more than five minutes” after

      Hartsough went to get the mattress, Hartsough saw “red and blue lights” on the

      wall as he was inflating the mattress. Id. at 73, 66. He “went to the door” and

      saw “police officers, squad cars outside[.]” Id. at 66. He also saw Rassi “in the

      road” and Rassi’s “vehicle farther down the road.” Id. Hartsough is

      “completely deaf on the right hand side[,]” so he could not have heard Rassi’s

      truck leave the driveway “if the stereo was on or the compressor was on, or the

      multitude of both[.]” Id. at 72.


[7]   The trial court found Rassi guilty as charged and sentenced him to concurrent

      terms of one year for the class A misdemeanor and 180 days for the class B

      misdemeanor, all suspended to probation. This appeal followed.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 4 of 11
                                     Discussion and Decision

       Section 1 – Rassi’s OWI conviction is supported by sufficient
                                evidence.
[8]   Rassi asserts that his convictions are not supported by sufficient evidence.

      “When reviewing the sufficiency of the evidence supporting a conviction, we

      must affirm if the probative evidence and reasonable inferences drawn from the

      evidence could have allowed a reasonable trier of fact to find the defendant

      guilty beyond a reasonable doubt.” Abd v. State, 121 N.E.3d 624, 629 (Ind. Ct.

      App. 2019), trans. denied. “It is not our job to reweigh the evidence or to judge

      the credibility of the witnesses, and we consider any conflicting evidence most

      favorably to the trial court’s ruling.” Id. “Furthermore, a criminal conviction

      may properly rest entirely upon circumstantial evidence.” Id. “It is not

      necessary that the evidence overcome every reasonable hypothesis of

      innocence.” Hopson v. State, 95 N.E.3d 531, 533 (Ind. Ct. App. 2018). “The

      evidence is sufficient if an inference may reasonably be drawn from it to support

      the judgment.” Id.


[9]   To convict Rassi of class A misdemeanor OWI, the State had to establish

      beyond a reasonable doubt that he operated a vehicle while intoxicated in a

      manner that endangered a person. Ind. Code § 9-30-5-2(b). Rassi first contends

      that the State failed to prove that he operated his truck. The abovementioned

      circumstantial evidence that Rassi operated his truck is overwhelming, and we

      may not reweigh that evidence in his favor. He also contends that the State

      failed to prove that he operated his truck in a manner that endangered a person.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 5 of 11
       Section 9-30-5-2 “requires more than intoxication to prove endangerment.”

       Burnett v. State, 74 N.E.3d 1221, 1225 (Ind. Ct. App. 2017) (quoting Dorsett v.

       State, 921 N.E.2d 529, 532 (Ind. Ct. App. 2010)). “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.” Id. The State showed that Rassi drove

       his truck off the road and into a ditch; this evidence was sufficient to establish

       that he operated his vehicle in a manner that could have endangered himself.

       Therefore, we affirm his conviction for class A misdemeanor OWI.


       Section 2 – Rassi’s leaving the scene of an accident conviction
                   is not supported by sufficient evidence.
[10]   Indiana Code Section 9-26-1-1.1 reads in pertinent part,


               (a) The operator of a motor vehicle involved in an accident shall
               do the following:


                        (1) Except as provided in section 1.2 of this chapter, the
                        operator shall immediately stop the operator’s motor
                        vehicle:


                                (A) at the scene of the accident; or

                                (B) as close to the accident as possible;


                        in a manner that does not obstruct traffic more than is
                        necessary.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 6 of 11
                 (2) Remain at the scene of the accident until the operator
                 does the following:


                         (A) Gives the operator’s name and address and the
                         registration number of the motor vehicle the
                         operator was driving to any person involved in the
                         accident.

                         (B) Exhibits the operator’s driver’s license to any
                         person involved in the accident or occupant of or
                         any person attending to any vehicle involved in the
                         accident.


                 ….

                 (4) If the accident involves a collision with an unattended
                 vehicle or damage to property other than a vehicle, the
                 operator shall, in addition to the requirements of
                 subdivisions (1) and (2):


                         (A) take reasonable steps to locate and notify the
                         owner or person in charge of the damaged vehicle
                         or property of the damage; and

                         (B) if after reasonable inquiry the operator cannot
                         find the owner or person in charge of the damaged
                         vehicle or property, the operator must contact a law
                         enforcement officer or agency and provide the
                         information required by this section.


An operator of a motor vehicle who knowingly or intentionally fails to comply

with this subsection commits class B misdemeanor leaving the scene of the

accident. Ind. Code § 9-26-1-1.1(b).


Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 7 of 11
[11]   In its charging information, the State alleged in pertinent part that Rassi

       damaged unspecified “property of [the] Elkhart County Highway Department”1

       and failed to “take reasonable steps to locate and notify the owner or person in

       charge of the damaged property[.]” Appellant’s App. Vol. 2 at 17. Rassi argues

       that “[t]here is simply insufficient evidence to establish that [he] was involved in

       an accident that resulted in property damage.” Appellant’s Br. at 17. He

       further argues that, “[d]ue to the quickness in which the police were at the

       scene, [he] was never given the opportunity to take reasonable steps to identify

       the owner of any damaged property and notify them accordingly.” Id. at 16.


[12]   Assuming, without deciding, that Rassi damaged the property of the Elkhart

       County Highway Department by gouging large ruts in the ditch, we agree with

       Rassi that he did not have an opportunity to take reasonable steps to locate and

       notify the Highway Department of the damage. Hartsough’s undisputed

       testimony establishes that approximately five minutes (or less) elapsed between

       Rassi driving his truck into a ditch and his apprehension by police outside

       Hartsough’s home in the middle of the night. Under these circumstances, we

       cannot conclude that Rassi had sufficient time to take reasonable steps to locate

       and notify the owner of the damaged ditch. Consequently, we reverse his

       conviction for leaving the scene of an accident.




       1
        Rassi did not assert below, and does not assert on appeal, that the charging information is
       unconstitutionally vague.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019                 Page 8 of 11
        Section 3 – Rassi has failed to establish that his sentence for
        OWI is inappropriate in light of the nature of the offense and
                                his character.
[13]   Finally, Rassi asks us to reduce his sentence pursuant to Indiana Appellate Rule

       7(B), which provides that we may revise a sentence authorized by statute 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. “Sentence review under Appellate Rule 7(B) is very deferential to the

       trial court.” Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). “[W]hen

       reviewing a sentence, our principal role is to ‘leaven the outliers’ rather than

       necessarily achieve what is perceived as the ‘correct’ result.” Id. (quoting

       Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008)). “We do not look to

       determine if the sentence was appropriate; instead we look to make sure the

       sentence was not inappropriate.” Id. “Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and a myriad of other factors that come to light in a

       given case.” McFall v. State, 71 N.E.3d 383, 390 (Ind. Ct. App. 2017). “In

       assessing whether a sentence is inappropriate, appellate courts may take into

       account whether a portion of the sentence is ordered suspended or is otherwise

       crafted using any of the variety of sentencing tools available to the trial judge.”

       Id. The burden is on Rassi to persuade us that his sentence is inappropriate.

       McFall, 71 N.E.3d at 390.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 9 of 11
[14]   The maximum sentence for a class A misdemeanor is one year of

       imprisonment. Ind. Code § 35-50-3-2.2 Rassi received a one-year sentence for

       his class A misdemeanor conviction, but it was all suspended to probation.

       Rassi argues that this offense was not especially egregious. We agree, and the

       trial court’s imposition of a fully suspended sentence properly reflects the nature

       of the offense.


[15]   He further argues that his character merits a reduced sentence. “A defendant’s

       life and conduct are illustrative of his or her character.” Morris v. State, 114

       N.E.3d 531, 539 (Ind. Ct. App. 2018), trans. denied (2019). “Even a minor

       criminal record reflects poorly on a defendant’s character, and the significance

       of the prior record varies based on the gravity, nature, and number of prior

       offenses in relation to the current offense.” Id. (citation and quotation marks

       omitted). Rassi, who was born in 1983, was convicted of class A misdemeanor

       marijuana possession in 2002 and was sentenced to one year of probation; he

       violated probation twice and received an unsatisfactory discharge. In 2006, he

       was charged with class D felony marijuana possession; the trial court elected to

       enter judgment of conviction as a class A misdemeanor and imposed a sentence

       of one year “good behavior status[.]” Appellant’s App. Vol. 2 at 58. Rassi later

       admitted to violating that status but ultimately received a satisfactory discharge




       2
        Contrary to the State’s suggestion, there are no advisory sentences for misdemeanors. Cf. Appellee’s Br. at
       17 (“While Defendant was not sentenced to the advisory sentence on both counts ….”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019                  Page 10 of 11
       from probation in March 2010. He was not charged with any other offenses

       until this proceeding.


[16]   Although Rassi apparently lived a law-abiding life for eight years after he was

       discharged from probation, his prior substance-related encounters with the

       criminal justice system reflect poorly on his character. Given his criminal

       history and multiple probation violations, Rassi has not met his burden of

       persuading us that his one-year suspended sentence is inappropriate in light of

       the nature of the offenses or his character. Therefore, we affirm his sentence.


[17]   Affirmed in part and reversed in part.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-459 | August 16, 2019   Page 11 of 11
