MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                            Oct 27 2015, 8:31 am
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
                                                         Paula J. Beller
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric Allen,                                              October 27, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         08A02-1504-CR-237
        v.                                               Appeal from the Carroll Circuit
                                                         Court
State of Indiana,                                        The Honorable Benjamin A.
Appellee-Plaintiff                                       Diener, Judge
                                                         Trial Court Cause No.
                                                         08C01-1403-FC-2



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015   Page 1 of 5
                                             Case Summary
[1]   Eric Allen appeals his conviction for class C felony operating a motor vehicle

      while privileges are forfeited for life, following a jury trial. His sole contention

      on appeal is that the evidence is insufficient to support his conviction.

      Specifically, he argues that the State failed to prove that he “operated” a motor

      vehicle. Finding the evidence sufficient, we affirm.


                                 Facts and Procedural History
[2]   The facts most favorable to the verdict indicate that on March 1, 2014, at 11:40

      p.m., Town of Flora Police Officer Joshua Disinger received a dispatch that a

      car had slid off State Road 25 just south of Rockfield. Officer Disinger arrived

      at the scene at 11:55 p.m. When he arrived, Officer Disinger observed that a

      vehicle was in the ditch on the righthand side of the northbound lane. The

      vehicle was approximately twenty feet from the roadway. Officer Disinger saw

      that the taillights of the vehicle were switching back and forth between brake

      lights and reverse lights “as if it was switching gears.” Tr. at 41. Disinger

      surmised that the driver of the vehicle was trying to get the vehicle out of the

      mud and ice by spinning the tires forward and backward. After Officer

      Disinger exited his patrol car and proceeded down the embankment, the driver

      of the vehicle, Allen, exited the driver’s-side door of the vehicle and approached

      Officer Disinger. Allen told Officer Disinger that he was not “driving the

      vehicle” but that he was just trying to “get it out of the ditch.” Id. at 43. The

      vehicle was registered to Allen’s mother, Delores Williams.



      Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015   Page 2 of 5
[3]   The State charged Allen with class C felony operating a motor vehicle while

      privileges are forfeited for life. A jury trial was held on January 26, 2015.

      During trial, Allen testified that, on the night in question, his mother let his

      nephew, Dewaun Filmore, borrow her car. Allen stated that his mother called

      him and told him that Dewaun had called her to tell her that the car had slid off

      the highway near Delphi. Allen testified that his mother asked him to go to the

      scene to help. Allen explained that his friend Louie drove him to the scene of

      the slide-off and dropped him off. He claimed that the two women who had

      been riding with Filmore were still in the car when he got there, but that

      Filmore was no longer present.


[4]   Similarly, Filmore testified that he had been driving the vehicle when it slid-off

      the highway. He stated that Allen’s mother came to pick him up and that he

      left the scene before Officer Disinger arrived. The jury found Allen guilty as

      charged. This appeal ensued.


                                     Discussion and Decision
[5]   Allen challenges the sufficiency of the evidence to support his conviction.

      When reviewing a claim of insufficient evidence, we neither reweigh the

      evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.

      2015). We look to the evidence and reasonable inferences drawn therefrom that

      support the verdict and will affirm if there is probative evidence from which a

      reasonable factfinder could have found the defendant guilty beyond a

      reasonable doubt. Id. In short, if the testimony believed by the trier of fact is


      Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015   Page 3 of 5
      enough to support the verdict, then the reviewing court will not disturb the

      conviction. Id. at 500.


[6]   The version of Indiana Code Section 9-30-10-17(a) in effect at the time of

      Allen’s crime provided that “a person who operates a motor vehicle after the

      person’s driving privileges are forfeited for life” under section 16 of the habitual

      traffic violator chapter or its two predecessor statutes commits a class C felony.

      Prior to trial, Allen stipulated that his driving privileges are forfeited for life and

      that he was aware of that fact on March 1, 2014. His sole contention on appeal

      is that the State failed to prove that he operated a motor vehicle on the day in

      question. We disagree.


[7]   In West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied (2015),

      another panel of this Court noted that, as applied to our motor vehicle statutes,

      our legislature has defined “operate” as “to navigate or otherwise be in actual

      physical control of a vehicle.” Id. (citing Ind. Code § 9-13-2-117.5). Factors

      that may be considered in determining whether a person has operated a vehicle

      include: (1) the location of the vehicle when discovered; (2) whether the vehicle

      was in motion when discovered; and (3) additional evidence that defendant was

      observed operating the vehicle before he or she was discovered. Id. “This is not

      an exclusive list, because any evidence that leads to a reasonable inference

      should be included.” Id. at 251-52.


[8]   The facts most favorable to the verdict clearly supports a reasonable inference

      that Allen was navigating or otherwise in actual physical control of a motor


      Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015   Page 4 of 5
      vehicle when Officer Disinger arrived at the scene of the slide-off. Indeed,

      Allen admits that he was trying to move the vehicle out of the ditch, in that he

      sat in the driver’s seat of the running vehicle and engaged the steering wheel,

      the accelerator, and the transmission. He simply urges that there was no

      evidence that he earlier drove the vehicle on a public highway, and he invites us

      to conclude that trying “to get the car out of the ditch” should not be considered

      “operating” a motor vehicle. Appellant’s Br. at 10. We decline his invitation. 1

      There was ample evidence before the jury to support its conclusion that Allen’s

      actions constituted navigating and physically controlling a motor vehicle. The

      State presented sufficient evidence from which the jury could conclude that

      Allen operated a motor vehicle while his driving privileges were forfeited for

      life. His conviction is affirmed.


[9]   Affirmed.


      May, J., and Bradford, J., concur.




      1
       Allen directs us to his own self-serving testimony and the testimony of Filmore, in which both claimed that
      Filmore, not Allen, was driving the vehicle when it slid off the highway. First, we note that the statutory
      definition of operating does not include a requirement that the navigation or actual physical control of the
      vehicle occur on a public road. Moreover, even assuming such requirement existed, it was the jury’s
      prerogative to determine the credibility of the witnesses, and we will not reassess that credibility on appeal.
      Bell, 31 N.E.3d at 499. Curiously, Filmore was not present at the scene when Officer Disinger arrived and,
      despite his and Allen’s explanations, the jury was free to disbelieve their narratives. The jury had enough
      evidence before it to reasonably infer that Allen was driving the vehicle when it slid off the highway.

      Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015              Page 5 of 5
