Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Jun 27 2014, 9:27 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

BARBARA J. SIMMONS                                  GREGORY F. ZOELLER
Oldenburg, Indiana                                  Attorney General of Indiana

                                                    JOSEPH Y. HO
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

CLIFFORD MOSLEY,                                    )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 49A02-1311-CR-983
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE MARION SUPERIOR COURT
                           The Honorable Linda E. Brown, Judge
                      The Honorable Christina Klineman, Commissioner
                             Cause No. 49F10-1301-CM-6146



                                          June 27, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                   CASE SUMMARY

       On January 26, 2013, Appellant-Defendant Clifford Mosley crashed his vehicle into a

building on East Washington Street. He subsequently crashed his vehicle into a RV travel

trailer that was sitting in the parking lot of the apartment complex where Mosley lived.

Appellee-Plaintiff the State of Indiana (the “State”) subsequently charged Mosley with a

number of charges, including Class A misdemeanor operating a vehicle while intoxicated

(“OWI”) in a manner that endangers a person. Following a bench trial, the trial court found

Mosley guilty of the charge of Class A misdemeanor OWI in a manner than endangers a

person. On appeal, Mosley contends that the evidence is insufficient to sustain his

conviction.

       We affirm.

                       FACTS AND PROCEDURAL HISTORY

       At approximately 4:30 p.m. on January 26, 2013, Indianapolis Metropolitan Police

Officers Christopher Dickerson and Jordan Lewis responded to a report that a black SUV had

crashed into a building located at 5223 East Washington Street (the “Washington Street

crash”). When Officers Dickerson and Lewis arrived at the scene of the Washington Street

crash, they observed that the front of the building in question had suffered significant

structural damage. Officers Dickerson and Lewis further observed that despite the fact that

the SUV had left the scene, various parts of the SUV, including a head light, a bumper, some

reflective pieces, and some under-carriage pieces, had been left behind. While on the scene

of the Washington Street crash, Officers Dickerson and Lewis received an anonymous tip

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that the SUV involved in the Washington Street crash was located about three blocks away at

an apartment complex located at 222 South Downey Avenue.

       Upon arriving at 222 South Downey Avenue, Officers Dickerson and Lewis located a

black SUV in the parking lot that matched the description of the vehicle involved in the

Washington Street crash. The SUV was positioned sideways against a R.V. travel trailer.

The tire tracks in the snow were fresh and suggested that the SUV had skidded sideways and

crashed into the trailer. The SUV had damage on the front and side and was missing a head

light and several pieces of its bumper.

       After determining that the SUV belonged to Mosley, Officers Dickerson and Lewis

went to Mosley’s apartment1 to speak to Mosley. When Mosley opened the door, Officers

Dickerson and Lewis observed that Mosley appeared to be intoxicated. Specifically, Officers

Dickerson and Lewis observed that Mosley (1) appeared to be leaning on his furniture for

support; (2) had heavily slurred speech; (3) had red, watery, bloodshot, and glassy eyes; (4)

was swaying in circles; (5) was difficult to understand; and (6) had a “very strong odor of

alcoholic beverage coming from his breath and person.” Tr. p. 31. Officer Dickerson also

observed that Mosley had a difficult time retrieving his driver’s license as he tried to answer

questions about his name and date of birth.

       Officer Lewis informed Mosley of his rights under Miranda2, including the right to

have an attorney present during any interview with or questioning by police. Mosley waived


       1
           Mosley lived in an apartment located in the apartment complex located at 222 South Downey
Avenue.
       2
           See Miranda v. Arizona, 384 U.S. 436 (1966).
                                                   3
his rights and Officer Dickerson conducted an interview with Mosley. During this interview,

Mosley told Officer Dickerson that he had

       three (3) or four (4) beers. He had driven on Washington [Street] and tried to
       make a left turn …south on Downey, lost control of the vehicle because of the
       slippery conditions, and struck the building. He stated that he had left his
       information on the scene and then he struck his travel trailer when he was
       coming home.

Tr. p. 30. Mosley also told Officer Dickerson that “nobody else had access to his vehicle, nor

did anybody else have the keys to his vehicle.” Tr. p. 39. Officer Dickerson then read

Mosley the Indiana Implied Consent notification. Mosley consented to submit to a blood

draw and was transported to Wishard Hospital. Subsequent testing on Mosley’s blood

revealed that Mosley’s alcohol concentration equivalent (“ACE”) was .20 grams of alcohol

per 100 milliliters.

       On January 29, 2013, the State charged Mosley with Count I, Class A misdemeanor

OWI in a manner that endangers a person; Count II, Class A misdemeanor OWI with an ACE

of at least .15 grams of alcohol per 100 milliliters; and Count III, Class B misdemeanor

failure to stop after accident causing damage to property other than a vehicle. The trial court

conducted a bench trial on November 4, 2013. During trial, Officers Dickerson and Lewis

testified to their observations at the Washington Street and South Downey Avenue crash

scenes as well as their interactions with Mosley. At the conclusion of the State’s presentation

of evidence, the trial court, at Mosley’s request, dismissed Counts II and III. The trial court

subsequently found Mosley guilty of Count I and sentenced him to twenty days at the Marion

County Jail, with twelve days credit, followed by 250 days on home detention. The trial

                                              4
court also ordered that Mosely’s driver’s license be suspended for a period of two years.

This appeal follows.

                            DISCUSSION AND DECISION

       Mosley contends that the evidence is insufficient to sustain his conviction for Class A

misdemeanor OWI in a manner that endangers a person. In raising this contention, Mosley

does not challenge the sufficiency of the evidence to prove either intoxication or the

endangerment element. Instead, Mosley argues that the State failed to present sufficient

evidence to prove that he operated the SUV.

              When reviewing the sufficiency of the evidence to support a conviction,
       appellate courts must consider only the probative evidence and reasonable
       inferences supporting the verdict. It is the fact-finder’s role, not that of
       appellate courts, to assess witness credibility and weigh the evidence to
       determine whether it is sufficient to support a conviction. To preserve this
       structure, when appellate courts are confronted with conflicting evidence, they
       must consider it most favorably to the trial court’s ruling. Appellate courts
       affirm the conviction unless no reasonable fact-finder could find the elements
       of the crime proven beyond a reasonable doubt. It is therefore not necessary
       that the evidence overcome every reasonable hypothesis of innocence. The
       evidence is sufficient if an inference may reasonably be drawn from it to
       support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on

reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not

reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).


                                              5
       In order to prove that Mosley committed the charged offense, the State was required to

prove that Mosley operated the SUV while intoxicated “in a manner that endangers a

person.” Ind. Code § 9-30-5-2. The State may prove intoxication by evidence of “(1) the

consumption of significant amounts of alcohol; (2) impaired attention and reflexes; (3)

watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6)

failure of field sobriety tests; [or] (7) slurred speech.” Staley v. State, 895 N.E.2d 1245, 1251

(Ind. Ct. App. 2008), trans. denied. To prove endangerment, the State must prove that

Mosley operated the SUV in a condition or manner that could have endangered any person,

including the public, the police, or himself. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct.

App. 2009).

       In support of his claim that the evidence is insufficient to prove that he operated the

SUV, Mosely relies on his own testimony at trial that his then-girlfriend was driving the SUV

when it struck the building and the RV travel trailer, but that she “fled the scene” because of

outstanding warrants for her arrest. Tr. p. 62. The trial court, however, acting as the trier-of-

fact, was free to believe or disbelieve Mosley’s self-serving testimony regarding who was

driving the SUV and to weigh said testimony accordingly. See Thompson v. State, 804

N.E.2d 1146, 1149 (Ind. 2004); McClendon v. State, 671 N.E.2d 486, 488 (Ind. Ct. App.

1996); Moore v. State, 637 N.E.2d 816, 822 (Ind. Ct. App. 1994), trans. denied.

       During trial, the trial court heard evidence that when Officers Dickerson and Lewis

first encountered Mosley, they observed that Mosley (1) appeared to be leaning on his

furniture for support; (2) had heavily slurred speech; (3) had red, watery, blood shot, and

                                               6
glassy eyes; (4) was swaying in circles; (5) was very difficult to understand; and (6) had a

“very strong odor of an alcoholic beverage coming from his breath and person.” Tr. p. 31.

Officer Dickerson testified that during his and Officer Lewis’s investigation, Mosley stated

that he had

       three (3) or four (4) beers. He had driven on Washington [Street] and tried to
       make a left turn …south on Downey, lost control of the vehicle because of the
       slippery conditions, and struck the building. He stated that he had left his
       information on the scene and then he struck his travel trailer when he was
       coming home.

Tr. p. 30. Officer Dickerson further testified that Mosley stated that “nobody else had access

to his vehicle, nor did anybody else have the keys to his vehicle.” Tr. p. 39.

       Mosley’s statements to Officer Dickerson are more than sufficient to support a finding

that Mosley operated the SUV. As such, we conclude that the evidence is sufficient to

sustain Mosley’s conviction for Class A misdemeanor OWI in a manner than endangers a

person. Mosley’s claim to the contrary merely amounts to an invitation for this court to

reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.

       The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.




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