Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before 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:

STEVEN KNECHT                                      GREGORY F. ZOELLER
Vonderheide & Knecht, P.C.                         Attorney General of Indiana
Lafayette, Indiana
                                                   RYAN D. JOHANNINGSMEIER
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana

                                                                                 FILED
                                                                             Dec 20 2012, 9:17 am
                               IN THE
                     COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                   of the supreme court,
                                                                                   court of appeals and
                                                                                          tax court




JOSEPH B. O’BRIEN,                                 )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 08A02-1204-CR-330
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE CARROLL SUPERIOR COURT
                           The Honorable Kurtis G. Fouts, Judge
                              Cause No. 08D01-1105-FD-38



                                       December 20, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


KIRSCH, Judge
      Following a jury trial, Joseph B. O’Brien appeals his conviction of Operating a

Vehicle as an Habitual Traffic Violator, a Class D felony,1 contending the evidence was

insufficient to support his conviction. We affirm.

      On April 27, 2011, Delphi Police Officer Justin Wilson received information from

another police agency that O’Brien was operating an orange Dodge Neon after his

operator’s license had been suspended. Officer Wilson knew that O’Brien’s girlfriend

owned an orange Neon. Officer Wilson then observed an orange Neon being operated by

a single occupant wearing a green sweatshirt and followed the vehicle into the parking lot

of a CVS pharmacy. There, Officer Wilson watched Defendant park and exit the vehicle.

Defendant, wearing a green sweatshirt, was walking toward the store when Officer

Wilson stopped him and asked him his name and if he knew his license had been

suspended. Defendant responded that his license had been suspended for five years.

      Our standard of review regarding a claim of insufficient evidence to support a

conviction is well established: We neither reweigh the evidence nor assess the credibility

of the witnesses. Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003). We may look only

to the evidence most favorable to the judgment and reasonable inferences therefrom and

will affirm if we conclude that evidence of probative value exists such that a reasonable

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

doubt. Id.      To convict a person of operating a motor vehicle while privileges are

suspended as a Class D felony, the State must prove three elements: (1) that the violator

operated a motor vehicle; (2) while his driving privileges were suspended; and (3) while

      1
          See Ind. Code § 9-30-10-16(a)(1).

                                              2
he knew or should have known that his privileges were suspended. Brown v. State, 677

N.E.2d 517, 518 (Ind. 1997).

       Here, O’Brien does not argue that the State did not present sufficient evidence that

his driving privileges had been suspended or that he did not know of the suspension.

Rather, he argues that the State did not prove that he was driving a vehicle. Officer

Wilson testified that he knew that O’Brien’s girlfriend owned an orange Neon, that he

received information that Wilson was driving an orange Neon while his driving privileges

were suspended, that he spotted the orange Neon being driven by a person who was

wearing a green sweatshirt and who was the only occupant in the vehicle, that he

followed the vehicle to the CVS parking lot, and that O’Brien exited the vehicle wearing

a green sweatshirt. Given our standard of review, such evidence is clearly sufficient to

support the conviction. The fact that O’Brien’s testimony was different is of no moment.

Weighing the credibility of witnesses and drawing inferences and conclusions therefrom

is within the exclusive province of the jury. See Taylor v. State, 681 N.E.2d 1105, 1111

(Ind. 1997).

       Affirmed.

MATHIAS, J., and CRONE, J., concur.




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