MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                          FILED
regarded as precedent or cited before any                                 May 12 2020, 9:03 am
court except for the purpose of establishing                                   CLERK
the defense of res judicata, collateral                                    Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf                                      Curtis T. Hill, Jr.
South Bend, Indiana                                     Attorney General of Indiana
                                                        Megan M. Smith
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cynthia Miller,                                         May 12, 2020
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-2911
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable Julie P. Verheye,
Appellee-Plaintiff.                                     Magistrate
                                                        Trial Court Cause No.
                                                        71D04-1903-CM-884



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020                       Page 1 of 6
[1]   Cynthia Miller appeals and claims the evidence is insufficient to sustain her

      conviction for operating a vehicle while intoxicated endangering a person as a

      class A misdemeanor. We affirm.

                                      Facts and Procedural History

[2]   On March 1, 2019, Indiana State Trooper Kyle Glaze heard the South Bend

      Police Department advise of a hit-and-run and responded to the scene. When

      he arrived, he noticed other units at the scene in a cul-de-sac and another officer

      speaking with Miller. Trooper Glaze observed from a distance of twenty to

      thirty feet that Miller was visibly swaying. He approached Miller and asked her

      “questions as to if she had been driving, the crash, and drinking.” Transcript

      Volume II at 5. Miller stated that she had been driving the vehicle and had

      accidentally struck the other vehicle. Trooper Glaze asked about her drinking,

      and she admitted to drinking two beers. He noticed her speech was slurred and

      at times it was difficult to understand her. Trooper Glaze asked Miller which

      vehicle she had been driving, and she pointed to a vehicle behind her in a

      driveway. He did not see damage to her vehicle. He noticed minor damage to

      a Honda Pilot and spoke with the victims. Trooper Glaze then attempted to

      administer the horizontal gaze nystagmus test several times. However, Miller

      “seemed either belligerent or incoherent to be able to successfully follow

      directions in order to complete the test.” Id. at 8. He observed her eyes were

      bloodshot and glossy. According to Trooper Glaze, prior to transporting her to

      the jail and “while observing her clothing, it appeared that her groin area was

      saturated wet.” Id. at 10. Another officer transported Miller to the jail. At the


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020   Page 2 of 6
      jail, Trooper Glaze administered the walk-and-turn test, and Miller exhibited

      seven indicators of intoxication which was considered failure.


[3]   The State charged Miller with: Count I, operating a vehicle while intoxicated

      endangering a person as class A misdemeanor; Count II, operating a vehicle

      while intoxicated as a class C misdemeanor; and Count III, leaving the scene of

      an accident as a class B misdemeanor. At a bench trial, the State presented the

      testimony of Trooper Glaze. On cross-examination, when asked if he knew

      how much time elapsed between the neighbors reporting an accident and for the

      police to respond, Trooper Glaze responded he believed the approximation

      given by the victims was five to ten minutes. Miller’s defense counsel moved

      for a directed verdict and argued there was “no proof that she was driving,

      except for what an officer had heard and provided to the Court.” Id. at 17. The

      court found the State did not meet its burden with respect to Count III and

      granted Miller’s motion for a directed verdict as to that count. The court found

      her guilty on Counts I and II, stated Miller admitted to drinking a couple of

      beers, had been driving, and hit a car, and said “[c]ertainly, that’s conduct that

      could have endangered a person.” Id. at 24. The court entered judgment of

      conviction for operating a vehicle while intoxicated endangering a person as a

      class A misdemeanor under Count I, sentenced Miller to sixty days with fifty-

      five days suspended, and placed her on probation for one year.


                                                  Discussion

[4]   When reviewing the sufficiency of the evidence to support a conviction, we

      must consider only the probative evidence and reasonable inferences supporting
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020   Page 3 of 6
      the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

      witness credibility or reweigh the evidence. Id. We consider conflicting

      evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

      unless no reasonable fact-finder could find the elements of the crime proven

      beyond a reasonable doubt. Id. It is not necessary that the evidence overcome

      every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient

      if an inference may reasonably be drawn from it to support the verdict. Id.


[5]   Miller argues that, even if she was intoxicated at the time Trooper Glaze

      observed her, the conclusion that she had been driving while intoxicated was

      based solely on speculation and not inference. She argues Trooper Glaze did

      not see her operate a vehicle. She argues there was no evidence to link any

      intoxication to the time of any operation of a motor vehicle.


[6]   Ind. Code § 9-30-5-2 provides “a person who operates a vehicle while

      intoxicated commits a Class C misdemeanor” and the offense “is a Class A

      misdemeanor if the person operates a vehicle in a manner that endangers a

      person.” “Intoxicated” means “under the influence of: (1) alcohol . . . so that

      there is an impaired condition of thought and action and the loss of normal

      control of a person’s faculties.” Ind. Code § 9-13-2-86. To operate a vehicle is

      to drive it or be in actual control of it upon a highway. Jellison v. State, 656

      N.E.2d 532, 535 (Ind. Ct. App. 1995). Circumstantial evidence is sufficient to

      prove that the defendant operated the vehicle while intoxicated. Id.

      Intoxication may be established through evidence of consumption of significant

      amounts of alcohol, impaired attention and reflexes, watery or bloodshot eyes,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020   Page 4 of 6
      an odor of alcohol on the breath, unsteady balance, failed field sobriety tests,

      and slurred speech. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009),

      opinion adopted, 929 N.E.2d 196 (Ind. 2010). The element of endangerment can

      be established by evidence showing the defendant’s condition or operating

      manner could have endangered any person, including the public, the police, or

      the defendant. Id. Endangerment does not require that a person other than the

      defendant be in the path of the defendant’s vehicle or in the same area to obtain

      a conviction. Id.


[7]   The record reveals that Trooper Glaze testified that Miller admitted she had

      consumed two beers and that he observed that she was visibly swaying, her

      speech was slurred, her eyes were bloodshot and glossy, and she failed the walk-

      and-turn test. Further, when he asked her about the crash and if she had been

      driving and drinking, Miller stated that she had been driving and had

      accidentally struck the other vehicle. Trooper Glaze testified that he asked

      Miller which vehicle she had been driving, and she pointed to a vehicle in the

      driveway behind her. He also testified that he spoke with the victims and

      noticed minor damage to a Honda Pilot. Based upon the record, we cannot say

      the inferences made by the trier of fact were unreasonable. We conclude that

      evidence of probative value exists from which the court as the trier of fact could

      have found Miller guilty beyond a reasonable doubt of operating a vehicle while

      intoxicated endangering a person as a class A misdemeanor.


[8]   Affirmed.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020   Page 5 of 6
[9]   Najam, J., and Kirsch, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020   Page 6 of 6
