MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                           FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 Aug 14 2019, 7:09 am

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
Andrew R. Falk                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Roberto Carlos Bernal-Andraca,                           August 14, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-385
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Rhett M. Stuard,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D02-1712-CM-1692



Tavitas, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019                     Page 1 of 7
                                             Case Summary
[1]   Roberto Carlos Bernal-Andraca appeals his conviction for operating a vehicle

      while intoxicated while endangering a person, a Class A misdemeanor. We

      affirm.


                                                     Issue
[2]   The sole issue on appeal is whether the State presented sufficient evidence that

      Bernal-Andraca endangered himself or another person.


                                                     Facts
[3]   This appeal stems from Bernal-Andraca’s operation of his vehicle in the parking

      lot of Casey’s General Store (the “gas station”), a convenience store and gas

      station, located in Brownsburg, Indiana. When the gas station cashier,

      Kaitlynn Johnson, arrived at work at approximately 7:00 a.m. on Christmas

      Eve 2017, she observed a lone gold sports utility vehicle “parked along the far

      side of the parking lot,” beyond the gas station pumps. Tr. Vol. II p. 21. No

      other cars were parked in the parking lot, and no patrons were in the gas

      station.


[4]   Bernal-Andraca exited the vehicle and entered the gas station. Johnson

      observed that he was “leaning,” but “he wasn’t [ ] falling over or anything.” Id.

      at 24. A few moments later, after resting his head on the coffee bar, Bernal-

      Andraca approached Johnson and asked to “prepay gas on pump one.” Id. at

      22. After Bernal-Andraca paid, he exited the gas station, re-entered his vehicle,


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019   Page 2 of 7
      “made a wide turn[, and] almost hit [the] crash polls [sic],” before he parked “at

      an angle” at pump one. Id. at 24, 25.


[5]   Although Bernal-Andraca did not drive at an unreasonable rate of speed, his

      unnecessarily wide turn and near-crash caused Johnson to “worry,” and she

      reported the incident to the Town of Brownburg Police Department. Id. at 24.

      Johnson then observed Bernal-Andraca place the nozzle from the fuel pump

      into his vehicle and re-enter the vehicle as the gasoline pumped. Bernal-

      Andraca failed to exit his vehicle to remove the nozzle from his vehicle.


[6]   Approximately ten minutes later, when Officer Daniel Brinson (“Officer

      Brinson”) and Sergeant April Hyde (“Sergeant Hyde”) of the Brownsburg

      Police Department responded to the scene, Bernal-Andraca was “asleep behind

      the wheel” or “passed out.” 1 Id. at 36. The nozzle was still in Bernal-

      Andraca’s gas tank but “had shut off”; and Bernal-Andraca’s engine was

      running. Id. at 37. Officer Brinson observed various indicators of intoxication;

      Officer Brinson administered a field sobriety test—which Bernal-Andraca

      failed—and gave a portable breath test, which indicated the presence of alcohol.

      Officer Brinson read a Spanish translation of the Indiana Implied Consent Law,

      and Bernal-Andraca consented; however, Bernal-Andraca was unable to

      provide a sufficient breath sample. A subsequent blood draw at Hendricks

      Regional Health yielded a blood-alcohol concentration of 0.149.




      1
          Johnson testified that Bernal-Andraca did not exit the vehicle before the police officers’ arrival.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019                            Page 3 of 7
[7]   On December 26, 2017, the State charged Bernal-Andraca with operating a

      vehicle while intoxicated while endangering a person, a Class A misdemeanor.

      The trial court conducted a bench trial on January 18, 2019. Johnson and

      Officer Brinson testified to the foregoing facts. At the close of the evidence, the

      trial court found Bernal-Andraca guilty. As evidence of endangerment, the trial

      court found, “Miss Johnson testified that [Bernal-Andraca] took a wide turn [ ],

      he almost hit the[ ] crash poles which protect the gas pumps.” Id. at 56. The

      trial court sentenced Bernal-Andraca to sixty days in jail. Bernal-Andraca now

      appeals.


                                                  Analysis
[8]   In challenging the sufficiency of the evidence to establish his conviction, Bernal-

      Andraca only contests the State’s evidence of endangerment. When there is a

      challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor

      judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016)

      (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied). Instead, “we

      ‘consider only that evidence most favorable to the judgment together with all

      reasonable inferences drawn therefrom.’” Id. (quoting Bieghler, 481 N.E.2d at

      84). “We will affirm the judgment if it is supported by ‘substantial evidence of

      probative value even if there is some conflict in that evidence.’” Id. (quoting

      Bieghler, 481 N.E.2d at 84); see also McCallister v. State, 91 N.E.3d 554, 558 (Ind.

      2018) (holding that, even though there was conflicting evidence, it was “beside

      the point” because that argument “misapprehend[s] our limited role as a

      reviewing court”). Further, “[w]e will affirm the conviction unless no

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019   Page 4 of 7
       reasonable fact-finder could find the elements of the crime proven beyond a

       reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v.

       State, 867 N.E.2d 144, 146 (Ind. 2007)).


[9]    Indiana Code Section 9-30-5-2(a) provides that “[a] person who operates a

       vehicle while intoxicated commits a Class C misdemeanor.” The offense “is a

       Class A misdemeanor if the person operates a vehicle in a manner that

       endangers a person.” Ind. Code § 9-30-5-2(b).


[10]   “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.” Burnett v. State, 74 N.E.3d

       1221, 1225 (Ind. Ct. App. 2017). “[T]he State is required[, however,] to present

       evidence beyond mere intoxication in order to prove the element of

       endangerment and support a conviction of OWI as a Class A misdemeanor.”

       Temperly v. State, 933 N.E.2d 558, 567 (Ind. Ct. App. 2010), trans. denied, cert.

       denied; see also Sesay v. State, 5 N.E.3d 478, 484-85 (Ind. Ct. App. 2014)

       (rejecting State’s argument “that unsupported speculation about what might

       happen or what could have happened is enough to prove endangerment”

       because “simply getting into a vehicle in an intoxicated state would constitute

       endangerment and every [OWI] offense would be the Class A misdemeanor.”),

       trans. denied.


[11]   The State argues that Bernal-Andraca endangered himself, and “subject[ed]

       himself to danger above the danger inherent to intoxication.” Appellee’s Br. p.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019   Page 5 of 7
       12. We agree. The evidence presented at trial, and reasonable inferences

       therefrom, establish that an intoxicated Bernal-Andraca: (1) drove so erratically

       to the fuel pump that Johnson expected him to crash into the surrounding

       poles; and (2) pumped gasoline into his vehicle while his engine was running

       and then fell asleep at the pump.


[12]   Bernal-Andraca’s reliance, in his brief, on Temperly and Burnett is misplaced

       because the State failed, in each of those cases, to present any evidence that the

       defendants operated their motor vehicles in a manner that endangered anyone,

       including themselves. The instant facts are similarly distinguishable from those

       in Sesay, 5 N.E.3d at 485, in which our court held that “it is the conduct of the

       intoxicated person that must cause the endangerment” and found that nothing

       about Sesay’s conduct posed a threat of harm to him.


[13]   Here, on the other hand, Bernal-Andraca’s operation of his vehicle—while

       intoxicated—posed more than a speculative threat to him. By Johnson’s

       account, Bernal-Andraca nearly crashed into the poles that protected the gas

       station’s fuel pump shortly before he pumped gasoline into his vehicle with the

       engine still running and fell asleep with the vehicle still running. A reasonable

       fact-finder could find the elements of the crime proven beyond a reasonable

       doubt; thus, we conclude that the State presented sufficient evidence of

       endangerment to convict Bernal-Andraca.


                                                 Conclusion
[14]   Sufficient evidence exists to support Bernal-Andraca’s conviction. We affirm.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019   Page 6 of 7
[15]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-385 | August 14, 2019   Page 7 of 7
