MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                    FILED
court except for the purpose of establishing                           Jun 06 2018, 9:23 am

the defense of res judicata, collateral                                      CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




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

                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Lee Moore,                                       June 6, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-28
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1709-CM-33108



Bradford, Judge.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-28 | June 6, 2018                      Page 1 of 5
                                          Case Summary
[1]   Darrell Lee Moore appeals his conviction for Class A misdemeanor operating a

      vehicle while intoxicated in a manner that endangers another. While Moore

      does not dispute that he was intoxicated at the time of his arrest, he argues that

      the State failed to prove that he operated his vehicle in a manner that

      endangered another. We affirm.



                            Facts and Procedural History
[2]   At approximately 8:00 p.m. on September 4, 2017, Indianapolis Metropolitan

      Police Officer Don Weilhamer, Jr. observed Moore’s vehicle “run [a] red light”

      near 900 East Washington Street. Tr. Vol. II, p. 11. In running the light,

      Moore’s vehicle disregarded a “no turn on red” sign and “was moving rather

      quickly.” Tr. Vol. II, p. 11. Officer Weilhamer further observed that Moore’s

      vehicle “didn’t slow down very much at all” before turning eastbound onto

      Washington Street. Tr. Vol. II, p. 11. While Moore did not pull out in front of

      any vehicles traveling in the eastbound lanes, there were other vehicles going

      through the intersection at the time traveling in the westbound lanes. Officer

      Weilhamer estimated that Moore was driving above the posted speed limit as it

      took him a couple of blocks to catch up to Moore once he initiated a traffic

      stop.


[3]   Upon approaching Moore’s vehicle, Officer Weilhamer smelled “an odor of an

      alcoholic beverage coming from the vehicle.” Tr. Vol. II, p. 13. He observed


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-28 | June 6, 2018   Page 2 of 5
      that Moore had slow speech and glassy, bloodshot eyes. Moore also had

      difficulty finding and retrieving both his identification from his wallet and the

      vehicle registration. Once Moore exited the vehicle, Officer Weilhamer “could

      smell [the] odor of an alcoholic beverage on [Moore’s] breath.” Tr. Vol. II, p.

      15. Moore failed three field sobriety tests: the horizontal gaze nystagmus test,

      the walk and turn test, and the one leg stand test. Moore admitted that he had

      been drinking and consented to a breath test, the results of which revealed

      Moore’s blood alcohol concentration (“BAC”) to be .083. A search of Bureau

      of Motor Vehicles records also showed that Moore had never received a valid

      driver’s license and that his driving privileges were suspended.


[4]   On September 5, 2017, the State charged Moore with Class A misdemeanor

      operating while intoxicated, Class C misdemeanor operating with a BAC of .08

      or more, Class A misdemeanor operating never having received a license, and

      Class A infraction driving while suspended. Moore was found guilty of each of

      the criminal charges and the infraction following a bench trial and was

      sentenced to an aggregate suspended 365-day sentence.



                                 Discussion and Decision
[5]   On appeal, Moore challenges the sufficiency of the evidence to sustain his

      conviction for Class A misdemeanor operating while intoxicated endangering

      another person.


              Our standard of review with regard to sufficiency claims is well
              settled. In reviewing a sufficiency of the evidence claim, this

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-28 | June 6, 2018   Page 3 of 5
              court does not reweigh the evidence or judge the credibility of the
              witnesses. We will consider only the evidence most favorable to
              the verdict and the reasonable inferences drawn therefrom and
              will affirm if the evidence and those inferences constitute
              substantial evidence of probative value to support the judgment.
              A conviction may be based upon circumstantial evidence alone.
              Reversal is appropriate only when reasonable persons would not
              be able to form inferences as to each material element of the
              offense.


      Staley v. State, 895 N.E.2d 1245, 1250 (Ind. Ct. App. 2008) (internal citations

      omitted).


[6]   In challenging his conviction, Moore does not dispute that he was intoxicated

      at the time of his arrest, but argues that the State failed to prove the element of

      endangerment. “To prove endangerment, the State must prove that the

      defendant was operating the vehicle in a condition or manner that could have

      endangered any person, including the public, the police, or the defendant.”

      Staten v. State, 946 N.E.2d 80, 84 (Ind. Ct. App. 2011) (citation omitted,

      emphasis in original).


              [T]he endangerment clause does not require that the State prove
              a person other that the defendant was actually in the path of the
              defendant’s vehicle or in the same area in order to obtain a
              conviction. An officer does not have to wait until the defendant
              crosses the centerline and adds another victim to the statistics of
              those who have died in drunk driving accidents. Thus, it is
              sufficient that the defendant’s condition renders driving unsafe.


      Staley, 895 N.E.2d at 1251 (citations omitted).



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-28 | June 6, 2018    Page 4 of 5
[7]   The facts of this case indicate that on the evening in question, Moore operated

      his vehicle in an unsafe manner. Specifically Moore disregarded a “no turn on

      red” sign and ran a red light. Tr. Vol. II, p. 11. In addition, Moore “didn’t

      slow down very much at all” before turning onto Washington Street. Tr. Vol.

      II, p. 11. While Moore did not pull out in front of any vehicles traveling in the

      eastbound lanes of Washington Street, there were other vehicles going through

      the intersection at the time traveling in the westbound lanes. Given that Moore

      disregarded a no turn on red sign and turned into the eastbound lanes “rather

      quickly” it is not unreasonable to conclude that he could have created a

      dangerous situation. Tr. Vol. II, p. 11. These facts are sufficient to prove

      endangerment. See Staten, 946 N.E.2d at 84.


[8]   The judgment of the trial court is affirmed.


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




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-28 | June 6, 2018   Page 5 of 5
