MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                              FILED
this Memorandum Decision shall not be                                    Apr 17 2018, 8:41 am

regarded as precedent or cited before any                                     CLERK
                                                                          Indiana Supreme Court
court except for the purpose of establishing                                 Court of Appeals
                                                                               and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Joel M. Schumm                                           Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Monika Prekopa Talbot
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Lisa Banks,                                              April 17, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1709-CR-2101
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable David Certo, Judge
Appellee-Plaintiff                                       The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G12-1609-CM-35139



Altice, Judge.


                                          Case Summary
Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018             Page 1 of 10
[1]   Following a jury trial, Lisa Banks was convicted of Class A misdemeanor

      operating a vehicle while intoxicated and Class B misdemeanor leaving the

      scene of an accident. On appeal, Banks challenges the sufficiency of the

      evidence with respect to both convictions.


[2]   We affirm.


                                       Facts & Procedural History


[3]   The evidence most favorable to the jury’s verdicts follows. On September 5,

      2016, IMPD Officer Jeffrey Wilkins was dispatched to the 1700 block of

      Bellefontaine Street on a report of a traffic accident. Upon arriving at the scene,

      Officer Wilkins saw that the door to a building was broken and that there was a

      vehicle inside the building. Officer Wilkins then observed a “civilian” in the

      middle of the intersection and a female, later identified as Banks, “stumbling

      down the street.” Transcript Vol. 2 at 8. Officer Wilkins, who was in full

      uniform and driving his marked police car, drove toward Banks. Banks turned

      toward an alley and kept walking away. Officer Wilkins located Banks sitting

      behind a bush next to a house. Officer Wilkins observed that Banks smelled of

      alcohol, had slurred speech and glassy eyes, and had difficulty standing. He

      also noted that her clothing was disheveled, and she was not wearing shoes.

      Officer Wilkins’s involvement ended when Officer Craig Wildauer, a DUI

      investigator with IMPD, arrived on the scene.


[4]   Officer Wildauer determined that Banks was the registered owner of the vehicle

      that had crashed into the building. In speaking with Banks, Officer Wildauer

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 2 of 10
      observed that she had a strong odor of alcoholic beverage, slurred speech, glassy

      and bloodshot eyes, and her balance was poor. He also noted that Banks did

      not cooperate with his instructions while he attempted to perform the

      horizontal gaze nystagmus test, and that generally, she became “argumentative

      and belligerent.” Id. at 21. Based on his observations, Officer Wildauer

      concluded that Banks was intoxicated. Officer Wildauer read to Banks

      Indiana’s implied consent warning, and Banks refused to submit to a chemical

      test. Officer Wildauer then applied for, and was granted, a search warrant to

      obtain a blood sample from Banks. At trial, the parties stipulated to the

      admission of the results of Banks’s blood test that showed Banks’s B.A.C. was

      0.178%.


[5]   When Officer Wildauer asked Banks what had happened, she told him that she

      had been at a party at 38th and Byrum and that a black male wearing a blue hat

      took off in her vehicle. She said she ran after her vehicle until the point of

      collision. The distance between the location of the crash and the party was

      more than two miles. Although Banks claimed she had run after her vehicle for

      quite a distance, her bare feet had no injuries. Banks then requested her shoes

      from her vehicle, and Officer Wildauer located a pair of women’s sandals on

      the driver’s side floor area. As he left the scene to transport Banks to the

      hospital for the blood draw, Officer Wildauer looked around, but did not see a

      black male wearing a blue hat in the vicinity.


[6]   On September 7, 2016, the State charged Banks with Count I, Class A

      misdemeanor operating a vehicle while intoxicated, Count II, Class A

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 3 of 10
      misdemeanor operating a vehicle with an ACE of .15 or more, and Count III,

      Class B misdemeanor leaving the scene of an accident. A jury trial was held on

      August 17, 2017, at the conclusion of which the jury found Banks guilty as

      charged. Due to double jeopardy concerns, the trial court entered convictions

      only on Counts I and III.1 The trial court sentenced Banks to concurrent terms

      of 363 days on Count I and 180 days on Count III, all suspended to probation.

      Banks now appeals. Additional evidence will be presented where necessary.


                                             Discussion & Decision


[7]   In reviewing a challenge to the sufficiency of the evidence, we neither reweigh

      the evidence nor judge the credibility of witnesses. Atteberry v. State, 911 N.E.2d

      601, 609 (Ind. Ct. App. 2009). Instead, we consider only the evidence

      supporting the conviction and the reasonable inferences flowing therefrom. Id.

      If there is substantial evidence of probative value from which a reasonable trier

      of fact could have drawn the conclusion that the defendant was guilty of the

      crime charged beyond a reasonable doubt, the judgment will not be disturbed.




      1
        The sentencing order indicates that the disposition of Count II was “Conviction Merged.” Appellant’s
      Appendix Vol. II at 14. At the sentencing hearing, however, the trial court clearly stated that it was “vacating
      the verdict on Count II.” Transcript Vol. 2 at 122. As we have explained: “[i]f a trial court does not formally
      enter a judgment of conviction on a [finding] of guilty, then there is no requirement that the trial court vacate
      the “conviction,” and merger is appropriate.” Townsend v. State, 860 N.E.2d 1268, 1270 (Ind. Ct. App. 2007)
      (quoting Green v. State, 856 N.E.2d 703, 704 (Ind. 2006)). However, if the trial court does enter judgment of
      conviction on a [guilty finding], then simply merging the offenses is insufficient and vacation of the offense is
      required.” See id. It appears as though the trial court intended to merge Counts I and II prior to entering a
      judgment of conviction and that the sentencing order simply contains a typographical error in that it indicates
      that a conviction on Count II merged with the conviction for Count I. We have not been provided an
      abstract of judgment, however, so the status of Count II is unclear. If a conviction was entered as to Count
      II, such conviction must be vacated to avoid a double jeopardy violation.

      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018               Page 4 of 10
      Baumgartner v. State, 891 N.E.2d 1131, 1137 (Ind. Ct. App. 2008). It is not

      necessary that the evidence overcome every reasonable hypothesis of

      innocence; rather, the evidence is sufficient if an inference may reasonably be

      drawn from it to support the conviction. Drane v. State, 867 N.E.2d 144, 147

      (Ind. 2007). “A verdict may be sustained based on circumstantial evidence

      alone if that circumstantial evidence supports a reasonable inference of guilt.”

      Maul v. State, 731 N.E.2d 438, 439 (Ind. 2000). Although presence at a crime

      scene alone is insufficient to sustain a conviction, presence combined with other

      facts and circumstances, including the defendant’s course of conduct before,

      during, and after the offense, may raise a reasonable inference of guilt. Id.


                                      Operating While Intoxicated


[8]   Banks argues that the evidence is insufficient to support her conviction for Class

      A misdemeanor operating a vehicle while intoxicated. To convict Banks of

      operating a vehicle while intoxicated, the State was required to prove beyond a

      reasonable doubt that Banks operated a vehicle while intoxicated and in a

      manner that endangered a person. Ind. Code § 9-30-5-2. At issue here is

      whether the State proved that Banks was driving the vehicle and crashed into

      the building on Bellefontaine Street.


[9]   While the State offered no direct evidence that Banks was driving the vehicle,

      the State presented plenty of circumstantial evidence from which the jury could

      have reasonably inferred that Banks was driving the vehicle when it crashed

      into the building. Indeed, the State presented evidence that Banks was


      Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 5 of 10
       stumbling away from the crash scene. With the exception of one other person,

       Banks was the only individual at the scene and it was determined that the

       vehicle was registered to her. Banks was not wearing any shoes and a pair of

       women’s sandals was found on the floor of the driver’s side of the vehicle.


[10]   The jury was also made aware that Banks told inconsistent stories. At the

       scene, Banks told Officer Wildauer she had been at a party and that a black

       male wearing a blue hat took her vehicle and she ran after her vehicle until it

       crashed into the building. The distance between the two locations was more

       than two miles. Although Banks claimed she had run that far, her bare feet

       were unscathed. At trial, however, Banks told a different story. She claimed

       that someone at the party took her keys away and that she only remembered

       getting into the passenger seat of her truck, her legs getting caught in the door as

       someone tried to close it, and that a black male whom she did not know was

       driving. Banks testified that she did not remember anything about the drive

       except for waking up in the crashed vehicle inside the building.


[11]   Banks’s argument that her mere presence in the vicinity of the accident is the

       only evidence that she was driving the crashed vehicle is simply a request to

       reweigh the evidence and judge the credibility of the witnesses. We will not

       indulge such request on appeal. The State presented sufficient circumstantial

       evidence to support Banks’s conviction for operating while intoxicated as a

       Class A misdemeanor. See Thang v. State, 10 N.E.3d at 1256 (Ind. 2014)

       (affirming defendant’s conviction for public intoxication because a reasonable

       inference that the defendant arrived at the gas station by driving his automobile

       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 6 of 10
       on the public streets while intoxicated could be drawn from evidence of the

       sudden presence of the defendant and his vehicle at a gas station, his

       intoxication, his possession of car keys, and the absence of any other person).


                                    Leaving the Scene of an Accident


[12]   Banks also argues that the evidence is insufficient to support her conviction for

       leaving the scene of an accident. Ind. Code § 9-26-1-1.1 provides, in pertinent

       part, as follows:


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


                        (1) [I]mmediately 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.


                        (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.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 7 of 10
                                (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.


               (b) An operator of a motor vehicle who knowingly or
               intentionally fails to comply with subsection (a) commits leaving
               the scene of an accident, a Class B misdemeanor.


[13]   Banks first argues that the State failed to prove she was an “operator” who had

       any obligation under the statute. Having concluded above that the State

       presented sufficient evidence from which the jury could have reasonably

       inferred that Banks was driving the vehicle, Banks’s argument in this regard is

       similarly without merit.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 8 of 10
[14]   Banks also argues, however, that even assuming she was the operator of the

       vehicle, she fulfilled her statutory duties. There is no dispute that the vehicle

       was stopped at the scene of the accident and that, being inside a building, it was

       not obstructing traffic. Further, because there were no other vehicles or persons

       involved in the accident, Banks was not obligated to provide any information to

       others “involved in the accident.” See I.C. § 9-26-1-1.1(a)(2)(A), (B).


[15]   Here, the accident involved damage to a building. Pursuant to I.C. § 9-26-1-

       1.1(a)(4)(A), (B), Banks was required to “take reasonable steps to locate and

       notify” the owner of the damaged building, or after those efforts failed, to

       “contact a law enforcement officer or agency.” Banks argues that the State

       failed to offer specific evidence about her efforts to contact the owner of the

       building. She also argues that when approached by the officers at the scene, she

       provided the information they requested. In sum, Banks argues that she

       fulfilled her statutory obligations and therefore, her conviction for leaving the

       scene of an accident must be reversed.


[16]   Again, we find Banks’s argument to be a request to reweigh the evidence. The

       State’s evidence established that the first officer to arrive at the scene of the

       accident saw Banks stumbling down the street, away from accident scene. As

       the officer approached in his marked police car, Banks turned toward an alley

       and kept walking away from the officer. The officer ultimately located Banks

       sitting behind a bush next to a house. Banks did not summon the police to

       provide them with the required information; rather she provided the

       information to the police as part of their investigation. A reasonable inference

       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 9 of 10
       can be drawn from this evidence that Banks was leaving the scene of the

       accident. Based on the forgoing, we conclude that the State presented sufficient

       evidence to support Banks’s conviction for leaving the scene of an accident as a

       Class B misdemeanor.


[17]   Judgment affirmed.


[18]   Najam, J. and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1709-CR-2101 | April 17, 2018   Page 10 of 10
