                                                                                 FILED
                                                                             Sep 05 2019, 9:09 am

                                                                                 CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
      Darren Bedwell                                             Curtis T. Hill, Jr.
      Indianapolis, Indiana                                      Attorney General of Indiana
                                                                 Caroline G. Templeton
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana



                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Corey Lamar Winters,                                       September 5, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 19A-CR-431
              v.                                                 Appeal from the Marion Superior
                                                                 Court
      State of Indiana,                                          The Honorable Mark F. Renner,
      Appellee-Plaintiff.                                        Magistrate
                                                                 Trial Court Cause No.
                                                                 49G08-1806-CM-18599



      Tavitas, Judge.


                                                Case Summary

[1]   Corey Winters appeals his conviction for operating a vehicle with an alcohol

      concentration equivalent (“ACE”) of .08 or more, a Class C misdemeanor, after




      Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019                           Page 1 of 10
      police discovered Winters sitting in his running vehicle, which was parked

      halfway in a residential driveway and halfway in the roadway. We affirm.


                                                       Issue

[2]   The sole issue before us is whether the evidence is sufficient to support Winters’

      conviction.


                                                       Facts

[3]   At 5:15 a.m. on May 26, 2018, Officer Vincent Marshall with the Indianapolis

      Metropolitan Police Department (“IMPD”) responded to a request for a welfare

      check on a person parked in a running vehicle in Marion County. Officer

      Marshall observed a black Chevy suburban in the “two north bound lanes of

      Lynhurst Drive.” Tr. Vol. II p. 6. According to Officer Marshall, “it appeared

      the suburban had backed into a driveway along the east side of the roadway and

      the front end of the suburban was sticking out into the east most north bound

      lane obstructing traffic. So, halfway in the driveway and halfway in the road.”

      Id. The vehicle was running, and it appeared that Winters was sleeping in the

      driver’s seat of the vehicle.


[4]   Officer Marshall woke Winters and smelled alcohol on Winters’ breath,

      observed that Winters’ eyes were red and watery, and noticed that Winters’

      speech was slurred. Officer Marshall conducted a horizontal gaze nystagmus

      test, which Winters failed. Officer Marshall then called Lieutenant Michael

      DeHart, a member of the DUI task force, to the scene.



      Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019     Page 2 of 10
[5]   Lieutenant DeHart arrived on the scene, put Winters in the back of his police

      vehicle, and read Winters his Miranda rights. Winters admitted to Lieutenant

      DeHart that Winters had been out drinking that night. Lieutenant DeHart also

      smelled alcohol on Winters’ breath, observed that Winters’ eyes were “blood

      shot and glassy,” and noticed that Winters’ speech was slurred. Id. at 14. An

      inventory search of Winters’ vehicle yielded empty alcohol containers.

      Lieutenant DeHart transported Winters to Eskenazi Hospital and performed

      three field sobriety tests—the horizontal gaze nystagmus test, the walk and turn

      test, and the one-legged stand test—inside a holding area of the hospital.

      Winters failed all three tests.


[6]   Winters submitted to a chemical blood test at the hospital at 7:11 a.m. on May

      26, 2018. Winters’ lab report indicated that Winters’ “plasma-serum ethyl

      alcohol concentration” was .136%, which corresponds “to a whole blood ethyl

      alcohol concentration” in the range of .107% to .128%. State’s Ex. 1.


[7]   The State charged Winters on June 11, 2018, with Count I, operating a vehicle

      while intoxicated endangering a person, a Class A misdemeanor; and Count II,

      operating a vehicle with an ACE of .08 or more, a Class C misdemeanor.


[8]   A bench trial occurred on January 29, 2019, where witnesses testified to the

      foregoing facts. At the end of the presentation of the State’s evidence, Winters’

      counsel moved for dismissal under Indiana Trial Rule 41(B). The trial court

      denied Winters’ motion.




      Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019     Page 3 of 10
[9]    Winters took the stand in his defense and testified that he left a bar at 1:30 a.m.

       on May 26, 2018, and drove for about thirty seconds before he pulled over and

       parked because he “felt uncomfortable driving,” “partially” because he had

       been drinking; he indicated that his discomfort “was more fatigue [] than

       alcohol.” Tr. Vol. II pp. 23, 26. Winters disagreed that his vehicle was

       obstructing traffic, but instead, alleged that officers may have incorrectly

       perceived that his vehicle was partially in the roadway based on the position in

       which he parked his vehicle.


[10]   The trial court found Winters not guilty of Count I and guilty of Count II.

       Winters now appeals.


                                                      Analysis

[11]   Winters argues the evidence is insufficient to support his conviction. When

       there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh

       evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210

       (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert. denied),

       cert. denied. Instead, “we ‘consider only that evidence most favorable to the

       judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will
       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019         Page 4 of 10
       affirm the conviction unless no reasonable fact-finder could find the elements of

       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[12]   The offense of operating a vehicle with an ACE of .08 or more, a Class C

       misdemeanor, is governed by Indiana Code Section 9-30-5-1(a), which

       provides: “A person who operates a vehicle with an alcohol concentration

       equivalent to at least eight-hundredths (0.08) gram of alcohol but less than

       fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100) millimeters

       of the person’s blood . . . commits a Class C misdemeanor.” Winters argues

       that the evidence is insufficient because he testified that he left the bar at

       approximately 1:30 a.m. and pulled over and parked shortly thereafter. The

       officers did not find Winters until 5:15 a.m., and Winters did not receive a

       chemical test until 7:11 a.m.


[13]   According to Winters, the State was not able to rely on the statutory

       presumption in Indiana Code Section 9-30-6-15, which states:


                  At any proceeding concerning an offense under IC 9-30-5[ 1] or a
                  violation under IC 9-30-15, evidence of the alcohol concentration
                  that was in the blood of the person charged with the offense:


                           (1) at the time of the alleged violation; or




       1
           Winters’ conviction was under this provision.


       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019        Page 5 of 10
                        (2) within the time allowed for testing under section 2 of
                            this chapter;


               as shown by an analysis of the person’s breath, blood, urine, or
               other bodily substance is admissible.


       “Section 2” as referenced in the statute above, states that the chemical test must

       be administered “within three (3) hours after the law enforcement officer had

       probable cause to believe the person committed an offense under IC 9-30-5. . .

       .” Ind. Code § 9-30-6-2(c).


[14]   To rely on this presumption, according to Winters, the State was required to

       prove that Winters operated the vehicle at some point after 4:11 a.m.—three

       hours before his chemical test—which he contends the State failed to do. See

       Allman v. State, 728 N.E.2d 230, 230 (Ind. Ct. App. 2000) (finding that the

       evidence was insufficient to support Allman’s conviction because the State

       neither “establish[ed] the precise time of the accident” to properly rely on the

       statutory presumption of the blood test results nor “offer[ed] testimony relating

       Allman’s blood alcohol level back to the time of the accident”).


[15]   The State argues that, when officers found Winters at 5:15 a.m., he was

       “operating” his vehicle as defined by law. “The operator of a motor vehicle is,

       in pertinent part, a person who drives or is in actual physical control of a motor

       vehicle upon a highway.” Mordacq v. State, 585 N.E.2d 22, 23 (Ind. Ct. App.

       1992) (quotations and citations omitted). “Thus, to operate a vehicle is to drive

       it or be in actual physical control of it upon a highway.” Id. “This court has


       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019          Page 6 of 10
       written ‘the State does not have to prove movement of the car.’” Id. at 24

       (quoting Johnson v. State, 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988)).

       “However, the Johnson court also opined that the word “operate” requires

       effort, the doing of something, by the operator.” Id.


[16]   In other words, the parties’ main disagreement is whether Winters’ was

       “operating” the vehicle at 5:15 a.m., when police discovered him. If Winters

       was “operating” the vehicle, then the State could rely on the three-hour

       presumption in the statute; if Winters was not operating the vehicle, then the

       State could not rely on the presumption in the statute because the operation did

       not occur within three hours of the blood test. Our Court in Mordacq, 585

       N.E.2d at 24, summarized the law well, stating:


               In a case where a vehicle is discovered motionless with the
               engine running, whether a person sitting in the driver’s seat
               “operated” the vehicle is a question of fact, answered by
               examining the surrounding circumstances. Thus, it has been held
               that the evidence was insufficient in such a case, involving .14%
               BAC, where the evidence showed that the defendant left a
               tavern, walked to a car parked in a nearby parking lot, started the
               engine, then fell asleep. Hiegel v. State (1989), Ind. App., 538
               N.E.2d 265, trans. denied; accord Corl v. State (1989), Ind. App.,
               544 N.E.2d 211. The Hiegel court explained that to show “the
               defendant merely started the engine of the vehicle is not sufficient
               evidence to sustain a conviction for operating a vehicle while
               intoxicated. There must be some direct or circumstantial
               evidence to show that defendant operated the vehicle.” Id. at
               268.




       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019      Page 7 of 10
[17]   Our Court’s Mordacq opinion reviewed situations in which defendants have

       been found in their vehicles with the engine running and the factual variances

       between each to demonstrate what constitutes sufficient evidence of operating a

       vehicle. As noted above, in instances like Hiegel, where the defendant was

       merely asleep behind the wheel of his vehicle, with the motor running in the

       parking lot of a tavern, the evidence was insufficient to prove Hiegel operated a

       vehicle on a highway while under the influence of alcohol. On the other hand,

       the following scenarios supplied sufficient evidence of a defendant operating a

       vehicle as identified in Mordacq: when the defendant was behind the wheel with

       the engine running and “on the median strip of a four lane-highway”; “stopped

       at an intersection, asleep”; “stuck in a snow bank on the median of an interstate

       highway”; or “stopped in a lane of traffic on a country road, asleep.” Mordacq,

       585 N.E.2d at 24 (collecting cases).


[18]   In Mordacq, our Court was presented with a factual scenario that led our Court

       to conclude that the evidence was insufficient to show Mordacq was operating

       her vehicle within the meaning of the statute. The facts in this Court’s opinion

       indicate that Mordacq’s car was “parked in the 100 block of 7th Street with its

       engine running.” Id. at 23. There was no indication that Mordacq’s vehicle

       was in any portion of the roadway where vehicles regularly travel. Our Court

       held: “[t]here was no evidence that Mordacq’s car was stopped in the travel

       portion of the roadway.” Id. at 24.


[19]   The nuances in these previous cases demonstrate how fact-sensitive these cases

       are. Here, Officer Marshall testified that, when he found Winters, the car was

       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019    Page 8 of 10
       running with Winters sleeping behind the wheel. Winters admitted to driving

       at 1:30 a.m. after spending time the night prior at a nearby bar. The vehicle was

       found halfway in a driveway and halfway in the roadway obstructing traffic.

       Unlike Mordacq, Officer Marshall indicated that Winters’ vehicle was in the

       travel portion of the roadway—obstructing a lane of traffic. In fact, when

       pressed on cross-examination, Officer Marshall testified that the vehicle was

       “halfway in the roadway and halfway in the driveway. [Officer Marshall]

       wouldn’t just say the front tip [of the vehicle was in the roadway].” Tr. Vol. II

       p. 11.


[20]   The trial court could have reasonably concluded that Winters was operating his

       vehicle when Officer Marshall found Winters alone in the driver seat of the

       running vehicle, halfway in the road obstructing traffic and halfway in a

       driveway at 5:15 a.m. Winters’ argument that we should conclude otherwise is

       merely a request for us to reweigh the evidence, which we cannot do. See

       Gibson, 51 N.E.3d at 210.


[21]   Accordingly, because the State demonstrated that Winters operated his vehicle

       at 5:15 a.m., the 7:11 a.m. chemical test was timely conducted within the three-

       hour time period after the officer had probable cause to believe Winters

       committed an offense. The State was, therefore, able to rely on the statutory

       presumption regarding Winters’ blood test results. The evidence is sufficient to

       support Winters’ conviction.




       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019     Page 9 of 10
                                                    Conclusion

[22]   The evidence is sufficient to support Winters’ conviction. We, accordingly,

       affirm.


[23]   Affirmed.


       Brown, J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-431 | September 5, 2019   Page 10 of 10
