MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                            Feb 19 2019, 9:54 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Marc Lopez                                               Curtis T. Hill, Jr.
The Marc Lopez Law Firm                                  Attorney General
Indianapolis, Indiana
                                                         Chandra K. Hein
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Junior Mapanda,                                          February 19, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1701
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Jason Reyome,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1711-CM-45410



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019             Page 1 of 9
                                             Case Summary
[1]   After a bench trial, Junior Mapanda was found guilty of class A misdemeanor

      operating a vehicle while intoxicated (“OWI”) endangering a person and class

      C misdemeanor operating a vehicle with an alcohol concentration equivalent

      (“ACE”) of .08 or more. The trial court merged the latter conviction with the

      former, presumably because of double jeopardy concerns, and sentenced him to

      probation. On appeal, Mapanda argues that the State failed to prove beyond a

      reasonable doubt that he committed OWI endangering a person. We conclude

      that the State presented sufficient evidence that Mapanda operated his vehicle

      while intoxicated but did not present sufficient evidence of endangerment;

      therefore, we reverse and remand with instructions to enter judgment of

      conviction on the lesser included offense of class C misdemeanor OWI and

      resentence Mapanda accordingly. Upon remand, the trial court must also

      vacate the ACE conviction because merger was an insufficient remedy to the

      double jeopardy concern.


                                 Facts and Procedural History
[2]   At 11:00 p.m. on November 26, 2017, Officer Gregory Hunter started his shift

      as a patrolman for the Marian University Police Department. Sometime later,

      as he was “cruising up and down the streets[,]” Officer Hunter noticed a black

      Cadillac Escalade “just sitting” off Cold Spring Road at the entrance of a




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019   Page 2 of 9
      driveway leading to Cold Spring School. Tr. Vol. 2 at 12. 1 The officer “didn’t

      think anything of it” and continued his patrol. Id. At 12:52 a.m., Officer

      Hunter saw that the Escalade was still parked at that location. He “wasn’t sure

      what was going on or what [he] had[,]” so he parked his patrol car behind the

      Escalade and “activated [his] light bar[.]” Id. at 11, 10. He saw that the

      Escalade’s engine was running, Mapanda “was passed out” in the driver’s seat,

      and the transmission was in park. Id. at 12.


[3]   Officer Hunter called for backup. When the backup officer arrived, Officer

      Hunter knocked on the driver’s door and asked if Mapanda was okay, but

      Mapanda failed to respond. The backup officer opened the passenger door, and

      Mapanda woke up. Officer Hunter noticed that Mapanda had “very slurred

      speech[,]” “glassy eyes[,]” and “the odor of an alcoholic beverage on his breath

      and person[.]” Id. at 14, 13. Officer Hunter suspected that Mapanda “could

      have been intoxicated” and “immediately placed him in handcuffs.” Id. at 15,

      14. Mapanda “was pretty unsteady on his feet[,]” so the officer “didn’t think

      that it would be safe” to administer any field sobriety tests. Id. at 16. Mapanda

      was transported to a hospital, where he consented to a blood draw that was

      performed at 2:13 a.m. and revealed an ACE of .184.


[4]   The State charged Mapanda with class A misdemeanor OWI endangering a

      person under Indiana Code Section 9-30-5-2(b), class C misdemeanor operating

      a vehicle with an ACE of .08 or more under Indiana Code Section 9-30-5-1(a),


      1
          At trial, Officer Hunter could not “nail down [the] time” he saw the Escalade. Tr. Vol. 2 at 12.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019                      Page 3 of 9
      and class A misdemeanor operating a vehicle with an ACE of .15 or more

      under Indiana Code Section 9-30-5-1(b). After a bench trial, the court found

      Mapanda guilty of the first two counts, merged the ACE conviction with the

      OWI conviction, presumably because of double jeopardy concerns, and

      sentenced him to 360 days’ probation for OWI. Mapanda now appeals.


                                       Discussion and Decision

            Section 1 – The State presented sufficient evidence that
               Mapanda operated his vehicle while intoxicated.
[5]   Indiana Code Section 9-30-5-2(a) provides that “[a] person who operates a

      vehicle while intoxicated commits a Class C misdemeanor.” The offense “is a

      Class A misdemeanor if the person operates a vehicle in a manner that

      endangers a person.” Ind. Code § 9-30-5-2(b). Indiana Code Section 9-13-2-

      117.5 defines “operate” in pertinent part as “to navigate or otherwise be in

      actual physical control of a vehicle ….” And Indiana Code Section 9-13-2-86

      defines “intoxicated” in pertinent part as under the influence of alcohol “so that

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

      control of a person’s faculties.” We first address Mapanda’s argument that the

      State failed to present sufficient evidence that he operated his vehicle while he

      was intoxicated.2




      2
       Mapanda frames the issue as one of statutory interpretation. We agree with the State that the issue is
      properly characterized as a challenge to the sufficiency of the evidence.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019                 Page 4 of 9
[6]   In reviewing the sufficiency of the evidence, “we neither reweigh the evidence

      nor judge the credibility of witnesses.” Willis v. State, 27 N.E.3d 1065, 1066

      (Ind. 2015). We consider only “the evidence supporting the judgment and any

      reasonable inferences that can be drawn from such evidence.” Id. (quoting

      Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009) (quoting Henley v. State, 881

      N.E.2d 639, 652 (Ind. 2008)). “A conviction will be affirmed if there is

      substantial evidence of probative value supporting each element of the offense

      such that a reasonable trier of fact could have found the defendant guilty

      beyond a reasonable doubt.” Id.


[7]   A “conviction … may be based purely on circumstantial evidence.” Id. at 1067

      (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)). On appeal, “[i]t is ‘not

      necessary that the evidence overcome every reasonable hypothesis of

      innocence. The evidence is sufficient if an inference may reasonably be drawn

      from it to support the verdict.’” Id. (quoting Meehan v. State, 7 N.E.3d 255, 257

      (Ind. 2014)). “[W]here the evidence is such that the trier of fact might

      reasonably draw two opposing inferences, it is not within the province of [an

      appellate] court to determine which inference should control. This

      determination is left to the trier of fact.” Young v. State, 257 Ind. 173, 177, 273

      N.E.2d 285, 287 (1971).


[8]   Although Mapanda may not have been operating the vehicle, i.e., navigating it

      or otherwise in actual physical control of it, when Officer Hunter found him

      sleeping in it, a reasonable inference can be drawn from the evidence presented

      at trial that he operated it to get to Cold Spring School. And given Mapanda’s

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019   Page 5 of 9
      ACE of .184 over an hour after he was awakened by the officers, his exhibition

      of several indicia of intoxication,3 and the lack of evidence of any alcoholic

      beverages in his vehicle, a reasonable inference can be drawn that he consumed

      a sizable amount of alcohol before he drove to the school and operated his

      vehicle while intoxicated. Cf. Flanagan v. State, 832 N.E.2d 1139, 1141 (Ind. Ct.

      App. 2005) (finding insufficient evidence of operating while intoxicated, where

      defendant could have consumed beer, from cans found in car, after car broke

      down and State presented no evidence as to when defendant consumed

      alcohol). Mapanda’s argument to the contrary is simply a request to reweigh

      evidence and draw inferences in his favor, which we may not do.


          Section 2 – The State did not present sufficient evidence that
          Mapanda operated his vehicle in a manner that endangered a
                                     person.
[9]   Mapanda also argues that the State failed to present sufficient evidence that he

      operated his vehicle in a manner that endangered a person. “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.” Outlaw v. State, 918 N.E.2d 379, 381

      (Ind. Ct. App. 2009), adopted by 929 N.E.2d 196 (Ind. 2010). But “the State is

      required to present evidence beyond mere intoxication in order to prove the




      3
        See Mathews v. State, 978 N.E.2d 438, 443 (Ind. Ct. App. 2012) (finding sufficient evidence of intoxication
      for public intoxication conviction based on defendant’s “slurred speech,” “glassy eyes,” and “odor of an
      alcoholic beverage”), trans. denied (2013).

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019                   Page 6 of 9
       element of endangerment and support a conviction of OWI as a Class A

       misdemeanor.” Temperly v. State, 933 N.E.2d 558, 567 (Ind. Ct. App. 2010),

       trans. denied (2011), cert. denied; see also Sesay v. State, 5 N.E.3d 478, 484-85 (Ind.

       Ct. App. 2014) (rejecting State’s argument “that unsupported speculation about

       what might happen or what could have happened is enough to prove

       endangerment” because “simply getting into a vehicle in an intoxicated state

       would constitute endangerment and every [OWI] offense would be the Class A

       misdemeanor.”), trans. denied.


[10]   The State argues that Mapanda endangered others by “blocking the exit” from

       the school’s driveway onto Cold Spring Road, noting Officer Hunter’s

       testimony that “[e]ven at night, you still got janitors in and out” of the school.

       Appellee’s Br. at 13; Tr. Vol. 2 at 14. Although the officer initially testified that

       Mapanda’s Escalade was “blocking [the] entrance” to the driveway, Tr. Vol. 2

       at 13, he later clarified that the vehicle “wasn’t creating a public safety

       emergency at that time[,]” id. at 19-20, and Defense Exhibit A (an aerial

       photograph of the driveway on which the officer marked the location of the

       Escalade) confirms that Mapanda’s vehicle was not blocking the entrance. The

       State presented no other evidence regarding Mapanda’s operation of the vehicle

       at trial and makes no other argument regarding endangerment on appeal, and

       therefore we agree with Mapanda that the State failed to prove endangerment

       beyond a reasonable doubt. See Outlaw, 918 N.E.2d at 382 (finding insufficient

       evidence of endangerment where State presented no evidence that defendant




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019   Page 7 of 9
       operated vehicle in unsafe manner).4 Consequently, we reverse Mapanda’s

       conviction for class A misdemeanor OWI under Section 9-30-5-2(b) for

       insufficient evidence and remand to the trial court with instructions to enter

       judgment of conviction on the lesser included offense of class C misdemeanor

       OWI under Section 9-30-5-2(a) and resentence him accordingly. See Burnett v.

       State, 74 N.E.3d 1221, 1226 (Ind. Ct. App. 2017) (“When a conviction is

       reversed because of insufficient evidence, we may remand to the trial court with

       instructions to enter a judgment of conviction on a lesser-included offense if the

       evidence is sufficient to support the lesser offense. Operating a vehicle while

       intoxicated is an inherently lesser-included offense of operating a vehicle while

       intoxicated endangering a person.”) (citation omitted).


              Section 3 – Mapanda’s ACE conviction must be vacated.
[11]   Mapanda also raises a sufficiency challenge to his ACE conviction, which we

       need not address because we affirm his OWI conviction as a class C

       misdemeanor. On remand, however, the trial court must vacate his ACE

       conviction because merger of the convictions was “not a sufficient remedy to

       the apparent double jeopardy concern.” Bass v. State, 75 N.E.3d 1100, 1103

       (Ind. Ct. App. 2017).5




       4
         Common sense might suggest that someone with Mapanda’s elevated ACE and symptoms of intoxication
       must have endangered himself or others by operating his vehicle, but absent any eyewitness or expert
       testimony or probative circumstantial evidence to support a finding of endangerment, nonetheless, we follow
       Outlaw in reversing Mapanda’s conviction for OWI as a class A misdemeanor.
       5
           The State’s claim that the trial court vacated Mapanda’s ACE conviction is unsupported by the record.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019                  Page 8 of 9
[12]   Reversed and remanded.


       Vaidik, C.J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1701 | February 19, 2019   Page 9 of 9
