                                                                               FILED
MEMORANDUM DECISION                                                       Mar 16 2017, 10:47 am

                                                                               CLERK
                                                                           Indiana Supreme Court
Pursuant to Ind. Appellate Rule 65(D), this                                   Court of Appeals
                                                                                and Tax Court
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
John L. Tompkins                                         Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Donald Ross,                                             March 16, 2017

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1608-CR-1804
        v.                                               Appeal from the Marion Superior
                                                         Court.
                                                         The Honorable David M. Hooper,
State of Indiana,                                        Magistrate.
Appellee-Plaintiff.                                      Cause No.49G12-1509-CM-34269




Sharpnack, Senior Judge




Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017              Page 1 of 6
                                            Statement of the Case
[1]   Donald Ross appeals his conviction of operating a vehicle while intoxicated
                                                                  1
      endangering a person, a Class A misdemeanor. He contends that there was

      insufficient evidence to support his conviction. We affirm.


                                                     Issue
[2]   Ross raises one issue for review, which we restate as whether the State

      presented sufficient evidence to support his conviction for operating a vehicle

      while intoxicated endangering a person.


                                   Facts and Procedural History
[3]   On September 25, 2015, a car accident occurred, involving a pedestrian and

      resulting in a fatality. The scene of the accident was in Indianapolis, on

      Southport Road, near the intersection of Emerson Avenue. At the scene, there

      were at least ten police vehicles with emergency lights activated, fire trucks, and

      personnel from a major news media network. Yellow police tape was placed

      around the perimeter of the accident scene.


[4]   Near the intersection of Emerson Avenue and Southport Road, several yards

      east of the accident scene and the police tape, two police officers had parked

      their vehicles, with emergency lights flashing, in the traffic lanes to prevent

      traffic from travelling westbound on Southport Road. The officers were



      1
          Ind. Code § 9-30-5-2(b) (2001).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017   Page 2 of 6
      standing by their vehicles. The officers left a narrow lane between one police

      car, the shoulder and the grass to allow emergency personnel access to the

      accident scene.


[5]   Around 3:30 a.m., Ross was driving south on Emerson Avenue. He turned

      right (westbound) onto Southport Road and into the narrow lane created by the

      officers. The officers waved at him to stop as he drove past. Tr. p. 52. Ross

      continued to drive his vehicle until he reached the barrier created by the police

      tape. He then stopped his vehicle and remained inside.


[6]   One of the officers entered his vehicle and drove to where Ross had stopped.

      He then exited his vehicle, approached Ross’s vehicle, and asked Ross for his

      license and registration. Ross handed the officer his license. Instead of handing

      the officer his registration, Ross repeatedly attempted to give the officer his

      automobile insurance card. The officer had to explain multiple times that he

      did not need Ross’s insurance information.


[7]   The officer detected an odor of an alcoholic beverage coming from Ross’s

      breath and person. When asked, Ross stated that he had been at a bar

      celebrating with clients from work, and admitted to having drunk “a couple [of]

      drinks.” Id. at 26. Ross agreed to perform standardized field sobriety tests.

      The tests were administered at the Beech Grove Police Department. Ross

      failed all three tests – the horizontal gaze nystagmus test, the walk and turn, and

      the one leg stand.




      Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017   Page 3 of 6
[8]    Ross was charged with operating a vehicle while intoxicated endangering a

       person, as a Class A misdemeanor, and operating a vehicle with an alcohol

       concentration equivalent of .08 or more, as a Class C misdemeanor. A bench
                                                                                                               2
       trial was held, during which the Class C misdemeanor count was dismissed.

       Ross was found guilty of the Class A misdemeanor charge. He now appeals.


                                      Discussion and Decision
[9]    Ross challenges the sufficiency of the State’s evidence underlying his

       conviction. When reviewing a claim of sufficiency of the evidence, we do not

       reweigh the evidence or judge the credibility of the witnesses. 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 that may be drawn from

       that evidence 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. In order to prove that Ross operated a vehicle while intoxicated, as a Class

       A misdemeanor, the State had to show that he “operate[d] a vehicle in a

       manner that endanger[ed] a person.” Ind. Code § 9-30-5-2(b).


[10]   Ross maintains that the State failed to present sufficient evidence that he

       operated his vehicle in a manner that endangered a person, and, thus, his actual




       2
        Although the sentencing order indicates that Ross pleaded guilty to operating a vehicle while intoxicated
       endangering a person, the transcript from the proceeding shows that Ross was found guilty after a bench trial.
       Tr. pp. 69-71.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017             Page 4 of 6
       innocence is established. The State is “required to submit proof of

       endangerment that [goes] beyond mere intoxication in order for the defendant

       to be convicted of operating while intoxicated, as a Class A misdemeanor.”

       Dorsett v. State, 921 N.E.2d 529, 533 (Ind. Ct. App. 2010) (internal quotation

       omitted). The element of endangerment can be established by evidence

       showing that the defendant’s condition or operating manner could have

       endangered any person, including the public, the police, or the defendant. Id. at

       532. However, 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.


[11]   Officer Lance Rector testified that the two marked police vehicles were blocking

       both traffic lanes of westbound Southport Road. Only a narrow lane between

       the edge of the road, the shoulder and the grass was accessible. The vehicles’

       emergency lights were flashing, and the two officers were standing next to one

       of the police vehicles. Ross turned onto Southport Road, drove past the officers

       as they waved at him to stop, and continued driving until he reached the police

       tape surrounding the accident scene and could travel no farther. Beyond the

       tape, over 100 people were present, including law enforcement, emergency

       responders, media, and members of the public.


[12]   Officer Rector further testified that when he approached Ross’s vehicle, he

       observed that Ross’s eyes were red and watery and that he could smell the odor

       of an alcoholic beverage emanating from Ross’s vehicle and his person. The

       officer asked Ross multiple times for his vehicle registration, but Ross kept

       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017   Page 5 of 6
       trying to give the officer proof of insurance. Ross admitted that he had been

       drinking that evening, and later failed field sobriety tests.


[13]   In short, in an intoxicated state, Ross drove his vehicle down a narrow lane,

       very close to two uniformed police officers. He ignored the officers and their

       vehicles with lights illuminated, and continued driving up to an accident scene

       that contained over 100 people. Based upon the foregoing, we find that the

       State presented sufficient evidence to support the trial court’s conclusion that

       Ross operated his vehicle in a manner that endangered others.


                                                Conclusion
[14]   For the reasons stated above, the judgment of the trial court is affirmed.


[15]   Affirmed.


       Bradford, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017   Page 6 of 6
