MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                FILED
this Memorandum Decision shall not be                            Dec 21 2016, 8:41 am
regarded as precedent or cited before any
                                                                      CLERK
court except for the purpose of establishing                      Indiana Supreme Court
                                                                     Court of Appeals
the defense of res judicata, collateral                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Philip R. Skodinski                                     Gregory F. Zoeller
South Bend, Indiana                                     Attorney General of Indiana

                                                        Ellen H. Meilaender
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Darren A. Mallett,                                      December 21, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        71A03-1606-CR-1314
        v.                                              Appeal from the St. Joseph
                                                        Superior Court
State of Indiana,                                       The Honorable John M.
Appellee-Plaintiff                                      Marnocha, Judge
                                                        Trial Court Cause No.
                                                        71D02-1507-F6-448



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016   Page 1 of 5
                                           Case Summary

[1]   Darren A. Mallett challenges the sufficiency of the evidence to support his

      convictions for level 6 felony operating as a habitual traffic violator (“HTV”)

      and level 6 felony operating while intoxicated (“OWI”) with a prior OWI

      conviction. Finding the evidence sufficient to support his convictions, we

      affirm.


                              Facts and Procedural History
[2]   The facts most favorable to the verdicts are as follows: Just after midnight on

      July 6, 2015, Indiana State Police Sergeant Jeffery Dolson observed a disabled

      vehicle parked in the roadway on the Indiana Toll Road exit in St. Joseph

      County. He stopped to offer assistance and found Mallett standing outside the

      driver’s door, talking on a cell phone. Another man, Kenneth Hilton, was

      seated in the front passenger’s seat. Mallett told the sergeant that his wife was

      bringing him transmission fluid. During the exchange, Sergeant Dolson

      noticed that Mallett showed signs of intoxication, including slurred speech,

      bloodshot eyes, and the odor of an alcoholic beverage. When asked for his

      driver’s license, Mallett produced an identification card. The sergeant entered

      Mallett’s information into the computer and discovered that his license was

      suspended based on his status as a habitual traffic violator. Mallett asked the

      sergeant to just let him go home and explained that “the only reason [he] was

      driving was because [he] was better off than [Hilton] was.” Tr. at 61. The



      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016   Page 2 of 5
      vehicle was found to be registered to Mallett’s longtime girlfriend, whom he

      had referred to as his “wife.” Id. at 60, 117.


[3]   Sergeant Dolson arrested Mallett on the basis of driving while suspended, and

      when he explained the situation to Hilton, he noticed that Hilton also exhibited

      signs of intoxication. Hilton did not dispute the sergeant’s assertions that

      Mallett had been driving. A search of the vehicle produced a plastic cup

      containing alcohol, unopened beers, and several empty beer cans. Mallett

      refused field sobriety tests and a chemical breath test. He was arrested and

      taken to jail, where his blood alcohol concentration was 0.208.


[4]   The State charged Mallett with Count I – class C misdemeanor OWI and

      Count II – level 6 felony operating as an HTV. The State subsequently added

      Count III – level 6 felony OWI, based on Mallett’s 2011 OWI conviction. A

      jury found Mallett guilty of Counts I and II, and he waived jury trial on Count

      III. The trial court found him guilty on Count III and entered judgment on

      Counts II and III. Mallett now appeals.


                                  Discussion and Decision
[5]   Mallett maintains that the evidence is insufficient to support his convictions.

      When reviewing a challenge to the sufficiency of evidence, we neither reweigh

      evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.

      2007). Rather, we consider only the evidence and reasonable inferences most

      favorable to the verdict and will affirm the conviction “unless ‘no rational fact-

      finder’ could find the defendant guilty beyond a reasonable doubt.” Tuggle v.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016   Page 3 of 5
      State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied. It is therefore not

      necessary that the evidence “overcome every reasonable hypothesis of

      innocence.” Drane, 867 N.E.2d at 147 (citation omitted).


[6]   Mallett was convicted of operating as an HTV and OWI, both as level 6

      felonies. 1 He asserts that the State failed to establish beyond a reasonable doubt

      that he, not Hilton, was the driver of the vehicle. In addition to his self-serving

      assertions to this effect, he cites as support Hilton’s trial testimony that Hilton

      was the driver and that the reason Sergeant Dolson found Hilton in the

      passenger’s seat was that he had been outside the vehicle before the officer’s

      arrival and had merely re-entered the vehicle to stretch out in the passenger’s

      seat. Mallett characterizes this testimony as uncontroverted yet disregards

      Sergeant Dolson’s trial testimony that Mallett had admitted to him at the scene,

      “[T]he only reason I was driving was because I was better off than [Hilton]

      was.” Tr. at 61. He also disregards evidence that the vehicle was registered to

      his “wife” and that when Sergeant Dolson explained the situation to Hilton at

      the scene, Hilton did not dispute the sergeant’s assertion that Mallett was the

      driver. Id. at 57, 60. We remind Mallett that we may neither reweigh evidence

      nor judge witness credibility, and we must decline his invitation to do so. The




      1
       See Ind. Code § 9-30-10-16(a)(1) (person who unlawfully operates motor vehicle after having his Indiana
      driving privileges validly suspended as habitual traffic violator by the bureau of motor vehicles and operated
      motor vehicle when he knew he was suspended as HTV commits level 6 felony operating as HTV); see also,
      Ind. Code § 9-30-5-3(a)(1) (person who unlawfully operates motor vehicle while intoxicated after having been
      convicted within immediately preceding five years of OWI commits level 6 felony OWI).



      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016           Page 4 of 5
      probative evidence most favorable to the verdicts is sufficient to establish that

      Mallett was the driver of the vehicle. Accordingly, we affirm his convictions.


[7]   Affirmed.


      Riley, J., and Altice, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016   Page 5 of 5
