      MEMORANDUM DECISION
                                                                             Feb 17 2015, 9:54 am
      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
      Timothy J. Burns                                          Gregory F. Zoeller
      Marion County Public Defender Agency                      Attorney General of Indiana
      Appellate Division
                                                                Kenneth E. Biggins
      Indianapolis, Indiana
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana



                                                   IN THE
             COURT OF APPEALS OF INDIANA

      Jerry Miller,                                            February 17, 2015

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               49A02-1405-CR-302
                 v.                                            Appeal from the
                                                               Marion Superior Court
      State of Indiana,                                        The Honorable Carol Orbison,
                                                               Senior Judge
      Appellee-Plaintiff.
                                                               49F19-1304-CM-24215




      Kirsch, Judge.

[1]   Jerry Miller was convicted after a jury trial of operating a vehicle with a blood

      alcohol content (“BAC”) over 0.151 as a Class A misdemeanor. He appeals,



      1
          See. Ind. Code § 9-30-5-1.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015       Page 1 of 6
      raising the following issue for our review: whether the State presented sufficient

      evidence to support his conviction.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On April 14, 2013, Alexis Pompey was working the night shift at a Village

      Pantry in Indianapolis, Indiana. Since the store stayed open all night, but

      locked its doors at 10:00 p.m., customers had to interact with the attendant

      through a pass-through window. While working that night, Pompey observed

      Miller drive up to a gas pump and exit from the driver’s side door. Miller came

      up to the window and paid for gas. After pumping the gas, Miller returned to

      the window and, appearing intoxicated, began to argue with Pompey about the

      amount charged for the gas. Miller then returned to his vehicle and drove

      away.


[4]   About fifteen to twenty minutes later, Miller came back to the gas station.

      Pompey again observed Miller driving, and he was accompanied by another

      vehicle. After parking, Miller and another individual approached the window

      and again argued with and cursed at Pompey. Feeling threatened, Pompey

      called 911 for assistance. Miller then returned to his vehicle and sat in the

      driver’s seat.


[5]   Approximately five minutes later, Indianapolis Metropolitan Police

      Department (“IMPD”) Officer Klinton Streeter arrived at the Village Pantry.

      When he arrived, Officer Streeter parked behind Miller’s vehicle. The driver’s
      Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015   Page 2 of 6
      door was open, and Miller was sitting halfway on the seat and halfway off the

      seat with his left foot on the ground. Officer Streeter spoke with Miller and

      observed that Miller had glassy, bloodshot eyes, poor manual dexterity, and

      smelled of alcohol. Due to Miller’s appearance and behavior, Officer Streeter

      decided to administer field sobriety tests to Miller. After administering three

      tests, Officer Streeter determined that Miller was intoxicated. Officer Streeter

      then administered a portable breath test, and Miller tested positive for

      intoxication. Miller told Officer Streeter that he was not the driver of the

      vehicle, but did not identify anyone else as the driver. Officer Streeter did not

      locate any evidence that anyone else drove the vehicle.


[6]   IMPD Officer Craig Wildauer arrived shortly after Officer Streeter. Miller

      initially denied driving the vehicle when speaking with Officer Wildauer, but

      Miller later admitted to Officer Wildauer that he was the driver. Officer

      Wildauer arrested Miller and transported him to the Arrestee Processing Center

      and administered a chemical test, which yielded a result of 0.20 grams of

      alcohol per 210 milligrams of breath.


[7]   The State charged Miller with operating while intoxicated as a Class C

      misdemeanor and operating a vehicle with a BAC over 0.15 as a Class A

      misdemeanor. A jury trial took place on April 4, 2014, and the jury found

      Miller guilty on both counts. The trial court sentence Miller to an aggregate

      365 days, all suspended. Miller now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015   Page 3 of 6
                                     Discussion and Decision
[8]   Our standard of review for sufficiency claims is well-settled. When we review a

      claim of sufficiency of the evidence, we do not reweigh the evidence or judge

      the credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct.

      App. 2009) (citing Jones v. State, 783 N.E.2d 1132, 1139 (Ind. 2003)). We look

      only to the probative evidence supporting the judgment and the reasonable

      inferences therein to determine whether a reasonable trier of fact could

      conclude the defendant was guilty beyond a reasonable doubt. Id. If there is

      substantial evidence of probative value to support the conviction, it will not be

      set aside. Id. It is the function of the trier of fact to resolve conflicts of

      testimony and to determine the weight of the evidence and the credibility of the

      witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007).


[9]   Miller argues that the State failed to present sufficient evidence to support his

      conviction for operating a vehicle with a BAC over .15 as a Class A

      misdemeanor. Miller does not challenge the evidence of intoxication presented

      at trial. The sole issue he challenges is whether the State proved that he was the

      driver of the vehicle at the time he was intoxicated. Miller alleges that the

      evidence was not sufficient to prove he was the driver of the vehicle because

      neither of the officers observed him operate a vehicle and Pompey’s testimony

      was ambiguous due to evidence that she may have had a partially obstructed

      view.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015   Page 4 of 6
[10]   In order to convict Miller of operating a vehicle with a BAC over 0.15 as a

       Class A misdemeanor, the State was required to prove beyond a reasonable

       doubt that Miller operated a vehicle with a BAC of at least 0.15 grams of

       alcohol per 210 liter of his breath. Ind. Code § 9-30-5-1(b)(1)(2). A conviction

       may be sustained on the uncorroborated testimony of a single witness or victim.

       Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied.


[11]   In the present case, Pompey observed Miller drive up to a gas pump, exit out of

       the driver’s door, and walk up to the pass-through window. After pumping gas,

       Miller returned to the window and argued with Pompey. She then watched

       him drive away from the gas station. Miller returned approximately fifteen

       minutes later, and Pompey again observed him driving his vehicle. When he

       again came to the pass-through window to argue with her, Pompey felt

       threatened and called the police. During these instances, several lights

       illuminated the area where Miller parked, and Pompey could see him through

       the windows of the store. At trial, she testified that she had no doubt that

       Miller was the one driving the vehicle. Tr. at 36. Pompey’s testimony was

       sufficient to support Miller’s conviction.


[12]   Further, elements of offenses and identity may be established entirely by

       circumstantial evidence and the logical inferences drawn therefrom. Holloway v.

       State, 983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013) (citing Bustamante v. State,

       557 N.E.2d 1313, 1317 (Ind. 1990)). The evidence presented at trial established

       that, when Officer Streeter approached the vehicle, the driver’s door was open

       and Miller was seated halfway in the driver’s seat and halfway out of the seat

       Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015   Page 5 of 6
       with his left foot on the ground with the engine off. Although Miller initially

       denied being the driver of the vehicle, he later admitted to Officer Wildauer that

       he had been driving. Viewing the probative evidence presented at trial and the

       reasonable inferences drawn from it, we conclude that the State presented

       sufficient evidence to support Miller’s conviction. Miller’s arguments amount

       to a request for this court to reweigh the evidence, which we cannot do on

       appeal. Parahams, 908 N.E.2d at 691.


[13]   Affirmed.


       Friedlander, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015   Page 6 of 6
