Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be

                                                              FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,                  Jul 12 2012, 9:21 am
collateral estoppel, or the law of the
case.
                                                                   CLERK
                                                                 of the supreme court,
                                                                 court of appeals and
                                                                        tax court




ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

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

                                                 RYAN D. JOHANNINGSMEIER
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JOCELYN ALLEN,                                   )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 49A02-1111-CR-1053
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                    APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable William Nelson, Judge
                           Cause No. 49F07-1109-CM-66410


                                       July 12, 2012


               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                      Case Summary

       Jocelyn Allen appeals her conviction for Class A misdemeanor operating a vehicle

while intoxicated (“OWI”) in a manner that endangered a person. We affirm in part and

remand in part.

                                           Issue

       Allen raises one issue on appeal, which we restate as whether there was sufficient

evidence to support her conviction.

                                           Facts

       On the night of September 15, 2011, at approximately 10 p.m. Officer Erik

Forestal of the Indianapolis Metropolitan Police Department (“IMPD”) observed a Ford

Taurus traveling northbound on California Street without its headlights turned on.

Officer Forestal activated his emergency lights and siren to conduct a traffic stop.

Officer Forestal followed the Ford Taurus for three blocks. Officer Forestal observed the

vehicle for the entirety of the pursuit and, at no point, did the driver activate the

headlights of the vehicle. After three blocks the vehicle stopped, and Allen got out of the

car.

       Allen attempted to walk away from the vehicle, but she stumbled. Officer Forestal

observed that Allen had bloodshot eyes and slurred speech, and he detected the odor of

alcohol. When Officer Forestal asked Allen for her identification, she became hostile and

began to yell. Allen ignored Officer Forestal’s repeated requests to remain calm. When

Officer Forestal frisked Allen, he found a tequila bottle in her pocket.
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       Additional IMPD officers arrived at the scene of the traffic stop and found Allen

leaning on her vehicle for support. Alcoholic beverage containers were in the front seat

of Allen’s vehicle. She failed three field sobriety tests. When a chemical breath test was

administered, she tested 0.11.

       On September 16, 2011, the State charged Allen with Count I, OWI in a manner

that endangered a person as a Class A misdemeanor, and Count II, OWI as a Class C

misdemeanor. Allen was found guilty of both counts after a bench trial. Trial court

entered judgment for Counts I and II and then merged Count II with Count I. The trial

court failed to vacate the original conviction for Count II. Allen now appeals.

                                         Analysis

       Allen argues that there is insufficient evidence to establish that she operated a

vehicle in a manner that endangered a person.        When reviewing the sufficiency of

evidence to support a conviction, we consider only the probative evidence and reasonable

inferences that support the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “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.” Id.

When conflicting evidence is present, we consider it in a light most favorable to the

conviction. Id. If there is substantial evidence such that a reasonable trier of fact could

find that the defendant was guilty beyond a reasonable doubt, we will affirm. Dorsett v.

State, 921 N.E.2d 529, 531 (Ind. Ct. App. 2010).


                                            3
       In order to convict Allen of Class A misdemeanor OWI, the State was required to

prove that she operated a vehicle while intoxicated in a manner that endangered a person.

See Indiana Code § 9-30-5-2(b). “Intoxicated” is defined as being under the influence of

alcohol or another substance “so that there is an impaired condition of thought and action

and the loss of normal control of a person’s faculties.” I.C. § 9-13-2-86. “Impairment

can be established by evidence of: (1) the consumption of a significant amount 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; and (7)

slurred speech.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans.

denied.

       There was sufficient evidence to prove that Allen was intoxicated when she was

questioned by Officer Forestal and the other officers. Allen satisfied all of the factors

indicating impairment. She had impaired attention and reflexes, bloodshot eyes, unsteady

balance, and slurred speech. She failed three field sobriety tests, and Officer Forestal

noticed the odor of alcoholic beverages on her breath. A chemical breath test revealed

that Allen’s blood alcohol content was 0.11.

       Allen’s main argument is that there was insufficient evidence to prove that she

endangered herself or others by her operation of the vehicle. The endangerment element

is satisfied if the evidence establishes that the defendant was operating his or her vehicle

in a manner that endangered “any person, including the public, the police, or the

defendant.” Vanderlinden, 918 N.E.2d at 644; see Outlaw v. State, 918 N.E.2d 379 (Ind.
                                               4
Ct. App. 2009) (finding that more than proof of intoxication is required to evidence

endangerment and that a missing license plate light was insufficient to evidence

endangerment), opinion adopted by Outlaw v. State, 929 N.E.2d 196 (Ind. 2010). Allen

claims that her actions did not pose a danger to anyone at the time because there was no

one else on the street. This is an incorrect interpretation of the endangerment clause. The

State need not prove that any other person other than the defendant was in the path of the

vehicle or in the same area in order to obtain a conviction. Staley v. State, 895 N.E.2d

1245, 1251 (Ind. Ct. App. 2008) (citing State v. Krohn, 521 N.E.2d 374, 377 (Ind. Ct.

App. 1988)), trans. denied.

       The State presented sufficient evidence that Allen’s operation of her vehicle

endangered others or herself. Indiana Code Section 9-21-7-2 provides that a driver is

required to display lighted headlamps at all times between sunset and sunrise. Allen was

operating her vehicle illegally by not activating her headlights at 10 p.m. This illegal

operation was unsafe and endangered Allen, other members of the public who might be

in the area, and police officers who might be conducting traffic stops. See Staley, 895

N.E.2d at 1251 (finding that operating a vehicle without headlamps endangered the

defendant and those around him).

       However, we note, as the State noted, that the trial court entered judgment for both

convictions and then merged the conviction for Class C misdemeanor operating while

intoxicated with Class A misdemeanor operating while intoxicated as a Class A

misdemeanor. As recommended by the state, we will remand to the trial court for the
                                            5
sole purpose of vacating the conviction for Class C misdemeanor operating while

intoxicated. See Eberle v. State, 942 N.E.2d 848, 862 (Ind. Ct. App. 2011), trans. denied

(finding double jeopardy in a situation in which the trial court failed to vacate conviction

for Class C misdemeanor after it had been merged with Class A misdemeanor of which

defendant was later convicted).

                                       Conclusion

       There is sufficient evidence to support Allen’s conviction for Class A

misdemeanor OWI with endangerment. We affirm, and we remand to the trial court for

the sole purpose of vacating the conviction for Class C misdemeanor OWI.

       Affirmed in part, and remanded in part.

FRIEDLANDER, J., and MAY, J., concur.




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