Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                FILED
any court except for the purpose of                           Dec 11 2012, 9:07 am

establishing the defense of res judicata,
collateral estoppel, or the law of the case.                         CLERK
                                                                   of the supreme court,
                                                                   court of appeals and
                                                                          tax court




ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

TIMOTHY J. BURNS                                   GREGORY F. ZOELLER
Indianapolis, Indiana                              Attorney General of Indiana

                                                   JONATHAN R. SICHTERMANN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

JOHNNY MOSBY,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 49A02-1205-CR-403
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MARION SUPERIOR COURT
                         The Honorable Teresa Hall, Commissioner
                            Cause No. 49F10-1012-CM-093628


                                       December 11, 2012

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                   STATEMENT OF THE CASE

           Johnny Mosby (“Mosby”) appeals his conviction for operating while intoxicated, a

class A misdemeanor.1 We affirm.


                                              ISSUE


                      Whether sufficient evidence supports Mosby’s conviction.


                                              FACTS


           At approximately 2:00 a.m. on December 18, 2010, Todd McNeeley

(“McNeeley”) was driving eastbound with three passengers on Washington Street. As he

began driving through the intersection, McNeeley’s vehicle struck the passenger side of a

red Ford pickup truck that had run through a red light and was traveling the wrong way.


           After checking on his passengers, McNeeley immediately exited his car and

approached the pickup truck. McNeeley became concerned that Mosby, the truck’s

driver, was trying to leave the scene because McNeeley heard Mosby attempting to

restart the engine. However, the passenger in the truck told McNeeley that they were not

going anywhere. As McNeeley approached the truck, Mosby fell out of the driver’s side

of the vehicle onto the ground, moved five to ten feet to the southeast corner of the

intersection, and began to eat some snow that had accumulated on the ground.


           Hearing the impact of the accident, Officer Alejandro Lastra (“Officer Lastra”) of

the Indianapolis Metropolitan Police Department responded to the scene.            When he

1
    Ind. Code § 9-30-5-2.

                                                 2
arrived, Officer Lastra saw Mosby kneeling down and eating snow on the driver’s side of

the truck; the truck’s passenger was standing on the passenger side of the truck; and

McNeeley was standing nearby. Mosby’s balance was unsteady and Officer Lastra

smelled the odor of “an alcoholic beverage.” (Tr. 43). Sergeant Michael Duke (“Sgt.

Duke”) subsequently arrived and also observed Mosby’s balance to be unsteady and that

there was a “[s]trong odor of alcoholic beverage on his breath.” (Tr. 55). As a result of

his observations, Sgt. Duke administered the horizontal gaze nystagmus test, which

Mosby failed.


          After speaking with the passenger of the truck, Sgt. Duke allowed him to leave the

scene.      Sgt. Duke sought and was granted a search warrant allowing medical

professionals to obtain a sample of Mosby’s blood for testing. Mosby was then taken to

Wishard Memorial Hospital where a blood sample was taken. Subsequent testing by the

Indianapolis-Marion County Forensic Services Agency revealed an alcohol concentration

of .26.


          Later that afternoon, the State charged Mosby with Count I, operating while

intoxicated as a class A misdemeanor, and Count II, public intoxication as a class B

misdemeanor. Prior to trial, the State filed a motion requesting permission to amend the

charging information. Its request was granted and the State added Count III, operating

while intoxicated with an alcohol concentration greater than .15 as a class A

misdemeanor.




                                               3
       Mosby’s bench trial was held over two days, March 12 and April 23, 2012.

Before the trial began, the State dismissed Count II, the public intoxication charge. On

behalf of the State, McNeeley, Officer Lastra, and Sgt. Duke testified as to their

recollection of events. Thereafter, Mosby’s counsel called Terry Williams (“Williams”)

and Darryl Hughes (“Hughes”). Mosby also testified. The parties agreed that Mosby

was intoxicated at the time of the accident. Therefore, the only issue was whether Mosby

was operating the truck at the time of the accident.


       After the State concluded its presentation of evidence, Williams and Hughes

testified that they both observed Mosby at the Fountain Lounge, located at 816 West 30 th

Street, which is approximately 3.7 miles from the scene of the accident. Hughes recalled

Mosby’s arrival at the Lounge because Mosby had parked his red pickup truck on the

sidewalk. Williams and Hughes recalled Mosby being with another man, later identified

by Mosby as his cousin, Mitchell Cope (“Cope”). Williams remembered Mosby leaving

at approximately midnight and falling face down into the snow. He also remembered

helping Mosby into the passenger side of the truck, and Mosby’s cousin then driving

away. Hughes remembered Mosby leaving sometime before the Lounge closed at 3:00

a.m. Mosby recalled arriving at the Lounge, but he could not remember leaving the

Lounge or the accident. Mosby also identified the wrecked truck depicted in Defendant’s

Exhibit B as his truck.


       After hearing the evidence, the trial court found Mosby guilty of Counts I and III.

The trial court immediately moved to sentencing. Merging Count III into Count I, the

                                             4
trial court imposed a one year sentence, with 180 days executed on in-home detention

and the remainder on formal probation. Mosby now appeals his conviction, challenging

the sufficiency of the evidence.


                                       DECISION


              When reviewing the sufficiency of the evidence to support a
       conviction, “appellate courts must consider only the probative evidence and
       reasonable inferences supporting the verdict.” It is the fact-finder’s role,
       not that of appellate courts, to assess witness credibility and weigh the
       evidence to determine whether it is sufficient to support a conviction. To
       preserve this structure, when appellate courts are confronted with
       conflicting evidence, they must consider it “most favorably to the trial
       court’s ruling.” Appellate courts affirm the conviction unless “no
       reasonable fact-finder could find the elements of the crime proven beyond a
       reasonable doubt.” It is therefore not necessary that the evidence
       “overcome every reasonable hypothesis of innocence.” “[T]he evidence is
       sufficient if an inference may reasonably be drawn from it to support the
       verdict.”
Staten v. State, 946 N.E.2d 80, 83 (Ind. Ct. App. 2011) (citations omitted) (emphasis in

original), trans. denied.


       In order to sustain a conviction under Indiana Code § 9-30-5-2, the State must

prove beyond a reasonable doubt that (1) Mosby; (2) operated; (3) a vehicle; (4) while;

(5) intoxicated; and (6) in a manner that endangered a person. Mosby asserts that there

was insufficient evidence from which the trial court could infer that he was operating the

truck while intoxicated at the time of the accident. We disagree.


       In this case, while there was evidence suggesting that it might have been possible

for someone else to have been operating the truck, there was evidence establishing

Mosby was the driver. For example, McNeely stated that immediately after the accident,
                                            5
he exited his vehicle and walked toward the pickup truck. It was then that McNeeley

observed Mosby, who had just been heard trying to restart his truck, fall out of the

driver’s side of the truck. During the trial, McNeely also unequivocally identified Mosby

as the same person he saw fall out of the driver’s side of the truck.       In addition, Officer

Lastra arrived immediately after hearing the collision. Officer Lastra testified that when

he arrived, Mosby was kneeling down on the driver’s side of the truck eating snow, and

the passenger was on the other side of the truck. Furthermore, Mosby identified the red

pickup truck that was involved in the accident as belonging to him.


       Mosby asks us to consider the possibility that the testimony from Williams and

Hughes proved that Mosby could not have been driving that morning. However, as noted

above, we cannot reweigh the evidence or assess witness credibility. Staten, 946 N.E.2d

at 83. The trial court considered but rejected Mosby’s version of events. Referring to

Mosby’s witnesses, the trial court stated:


              We have witnesses that testified that the defendant left around
       midnight, or at least prior to the bar closing. We don’t have any clear cut
       idea or time frame. We know that the bar is located at 30th and Martin
       Luther King. That is approximately a 3.4 – I’m sorry, 3.7 miles from
       College and Washington. That’s almost four miles. Anything could
       happen between there and the accident sight. Another bar could have been
       visited. Any stops at anyone’s homes could be visited.
              The defendant can’t give us any information because he doesn’t
       remember any of it. He doesn’t remember getting in the car. He doesn’t –
       the truck; he doesn’t remember the accident. He doesn’t remember the
       blood test at Wishard. He just remembers waking up and being charged
       with driving while intoxicated. I believe, I mean we have a[n] eye witness
       that states that the defendant got out of the driver’s seat, that he tried to start
       the car to leave. He got out of the driver seat. He fell down on the ground
       to the snow on the driver side.

                                               6
(Tr. 101-102).


      We conclude that there is ample evidence from which the trial court could have

found beyond a reasonable doubt that it was Mosby who had “operated” the truck. Clark

v. State, 611 N.E.2d 181 (Ind. Ct. App. 1993), trans. denied.    The trial court was

presented with direct evidence through McNeeley that Mosby was the operator, and this

testimony was corroborated by Officer Lastra.


      Affirmed.


ROBB, C.J., and MAY, J., concur.




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