MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                            FILED
regarded as precedent or cited before any                                   Mar 13 2020, 10:31 am
court except for the purpose of establishing
                                                                                 CLERK
the defense of res judicata, collateral                                      Indiana Supreme Court
                                                                                Court of Appeals
estoppel, or the law of the case.                                                 and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Paula M. Sauer                                           Curtis T. Hill, Jr.
Danville, Indiana                                        Attorney General of Indiana
                                                         Steven J. Hosler
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Tywun Johnson,                                           March 13, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2476
        v.                                               Appeal from the Hendricks
                                                         Superior Court
State of Indiana,                                        The Honorable Mark A. Smith,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         32D04-1807-CM-987



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020                   Page 1 of 10
                                           Case Summary
[1]   Tywun Johnson (“Johnson”) appeals his convictions for operating a vehicle

      while impaired, endangering a person, as a Class A misdemeanor,1 and driving

      while suspended, a Class A misdemeanor.2 Johson raises three issues on

      appeal, which we restate as the following dispositive issue: whether the State

      presented sufficient evidence to support his convictions.


[2]   We affirm.



                                Facts and Procedural History
[3]   On July 19, 2018, the State charged Johnson with Count I, operating a vehicle

      while intoxicated endangering a person, as a Class A misdemeanor, and Count

      II, driving while suspended, a Class A misdemeanor. On October 8, 2018, the

      court granted the State’s motion to add Count III, operating a vehicle with an

      ACE of .15 or more, as a Class A misdemeanor.3 Johnson waived his right to

      trial by jury, and the court conducted a bench trial on August 27, 2019. At trial,

      the parties stipulated to the admission of certified test results establishing that,

      on July 19, 2018, Johnson had an alcohol concentration equivalent (“ACE”) of

      .267, and Johnson’s driving record, which established that his license was




      1
          Ind. Code § 9-30-5-2(a) & (b).
      2
          I.C. § 9-24-19-2.
      3
          I.C. § 9-30-5-1(b).


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 2 of 10
      suspended on the night of July 18, 2018. The parties stipulated that all elements

      of Count I and II other than the “operating” element were met. Tr. at 6.


[4]   At the bench trial, the following testimony and other evidence was presented:

      Late at night on July 18, 2018, Wyatt Kintner (“Kintner”) was driving his truck

      down the eastbound right lane on Interstate 74 (“I-74”) near the Brownsburg

      exit for Indiana State Road 267 when he saw dust being kicked up and a car’s

      headlights flashing in different directions on the westbound lanes of I-74.

      Kintner then saw a car in the westbound lanes of I-74 drive into the median and

      crash into the guardrail. He slammed on his brakes and saw the crashing

      vehicle come to a rest with part of it on the median and part of it in the left-

      hand lane of westbound I-74.


[5]   Kintner parked his vehicle at the side of I-74 eastbound, exited, and crossed the

      median to reach the crash location. At some point during that time, he called 9-

      1-1. It took Kintner about thirty seconds from the time he parked his vehicle to

      the time he reached the crash location, and he did not “have [his] eyes on the

      [crashed] car that entire time. Tr. at 21-22. As he approached the crashed car,

      he noticed Jairus Baird (“Baird”), who “appeared to be in a stupor,” walking

      around in a circular pattern near the center, dotted line dividing the two

      westbound lanes. Id. at 10. Traffic was still passing on the outer westbound

      lane. Kintner, fearing for Baird’s safety, tried to help Baird away from traffic.

      Kintner then heard the crashed car’s engine begin to rev, and he looked over at

      the car and “realized there was someone still sitting there behind the wheel” of



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 3 of 10
      the car. Id. at 11. The person sitting in the driver’s seat was later identified as

      Johnson.


[6]   Kintner then went to the driver’s side of the crashed car. At some point, the

      driver’s side door was opened, but Kintner did not recall if he opened it or if

      someone else opened it. It appeared to Kintner that Johnson was “trying to

      drive” but the damage to the car was preventing him from doing so. Id. at 12.

      Kintner did not know whether the car was in gear while Johnson was revving

      the engine or whether Johnson was wearing a seat belt. He did not see any

      airbags deployed. The car had damage to the front window, but there was no

      evidence that either Baird or Johnson had any kind of head injury.


[7]   Kintner leaned into the driver’s side of the car and told Johnson to turn off the

      engine. Johnson did not respond to Kintner, and Kintner smelled alcohol on

      Johnson. At that point, Kintner noticed that Baird had followed him to the car.

      Kintner became concerned that he might upset Johnson and Baird, so he

      backed away from the crashed car and began to help direct traffic around it to

      prevent another crash. After he backed away from the car, Kintner became

      aware of a third individual walking on the shoulder of the median, westbound,

      away from the crashed car.


[8]   While Kintner was attempting to direct traffic, Officer Michael Gillman

      (“Officer Gillman”) of the Brownsburg Police Department (“BPD”) arrived.

      Kintner informed Officer Gillman that the car had crashed and the occupants of

      the car had “[taken] off running westbound.” Id. at 37. Officer Gillman then


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 4 of 10
      noticed one individual running westbound, and Officer Gillman pursued in his

      vehicle. Officer Gillman caught up with Baird and was questioning him when

      he heard someone rustling in the trees along the embankment. Officer Gillman

      yelled for the person to come out of the trees, and Johnson eventually did so.

      Johnson and Baird informed Officer Gillman that a woman had also been in

      the car with them. Both individuals appeared to Officer Gillman to be

      intoxicated. Johnson’s speech was slurred, he was “incomprehensible for the

      most part,” and Officer Gillman “could not understand what [Johnson] was

      telling [him].” Id. at 42. Johnson and Baird began to argue about who had

      been driving the car when it crashed, but Officer Gillman could not determine

      from that conversation which of them had actually been driving.


[9]   Meanwhile, Officer Christopher Nelson (“Officer Nelson”) of the BPD had

      arrived at the scene and was questioning Kintner. By that time, no suspects

      were at the scene and it appeared to Officer Nelson that “everyone had fled the

      vehicle.” Id. at 30. Officer Nelson wore a body camera while at the scene

      which recorded his interactions there. The DVD from that body camera was

      admitted into evidence, without objection, as State’s Exhibit 3 and was played

      for the trial court. The DVD recorded Officer Nelson’s interview of Kintner at

      the scene. In the DVD, Kintner confirmed that he was “one hundred percent

      positive” that Johnson was “the driver” and stated that Johnson “couldn’t

      communicate properly” when Kintner had asked him to turn off the car engine.

      State’s Ex. 3 at 6:29. Officer Gillman brought Johnson and Baird back to the

      scene of the crash, where Kintner identified Johnson as the driver. The BPD


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 5 of 10
       did not investigate further into the identity of the woman who had allegedly

       also been in the car when it crashed. The State did not present evidence of who

       owned the crashed car or to whom it was registered.


[10]   Following the bench trial, the trial court found Johnson guilty of Counts I and

       II. In reaching that determination, the trial court specifically found that

       Johnson operated the vehicle at the time “it left the roadway.” Tr. at 55. The

       court stated: “based upon that level of intoxication I don’t find it reasonable

       that he would have had enough judgment, control over his faculties to be able

       to decide in that moment I need [leave the passenger seat] to move this vehicle

       because it’s a necessity, it’s an emergency and that just doesn’t make logical

       common sense to me.” Id. The court also found Johnson guilty of Count III

       but vacated that conviction on double jeopardy grounds. The court sentenced

       Johnson to identical sentences of 365 days incarceration with 363 days

       suspended for each count and ordered the sentences to run concurrently. This

       appeal ensued.



                                 Discussion and Decision
[11]   Johnson challenges the sufficiency of the evidence to support his convictions.

       Specifically, he contends that the evidence did not prove that he was driving the

       vehicle when it crashed; rather, he contends the evidence showed that he could

       have moved out of one of the passenger seats and into the driver’s seat in order

       to move the car when he realized it was in the way of on-coming traffic after it

       crashed.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 6 of 10
[12]   Our standard of review of the sufficiency of the evidence is well-settled.


               When an appellate court reviews the sufficiency of the evidence
               needed to support a criminal conviction, it neither reweighs
               evidence nor judges the credibility of witnesses. Bailey v. State,
               907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only
               considers “the evidence supporting the judgment and any
               reasonable inferences that can be drawn from such evidence.” Id.
               (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. Bailey, 907 N.E.2d at 1005. A
               [determination] of guilt may be based upon an inference if
               reasonably drawn from the evidence. See Drane v. State, 867
               N.E.2d 144, 147 (Ind. 2007).


       Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014).


[13]   Thus, it is not necessary that the evidence


               overcome every reasonable hypothesis of innocence; … Drane v.
               State, 867 N.E.2d 144 (Ind. 2007). Accordingly, the question on
               appeal is whether the inferences supporting the [judgment] were
               reasonable, not whether other, “more reasonable” inferences
               could have been drawn. Thompson v. State, 804 N.E.2d 1146,
               1150 (Ind. 2004). Because reaching alternative inferences is the
               function of the trier of fact, we may not reverse a conviction
               merely because a different inference might plausibly be drawn
               from the evidence. [Id.].


       Jones v. State, 22 N.E.3d 877, 879 (Ind. Ct. App. 2014).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 7 of 10
[14]   To support Johnson’s convictions of operating a vehicle while impaired,

       endangering a person, as a Class A misdemeanor, and driving while suspended,

       the State was required to prove, among other things, that Johnson operated a

       vehicle. Johnson challenges only the sufficiency of the evidence to prove that

       he “operated” the vehicle that day. To prove that one “operated” a vehicle,

       “there must be some direct or circumstantial evidence” to show that the person

       expended effort to “perform a function … or produce an effect.” Henderson v.

       State, 108 N.E.3d 407, 414 (Ind. Ct. App. 2018) (quotation and citation

       omitted). When determining whether a defendant operated a vehicle, we

       consider several factors, including:


               (1) the location of the vehicle when it is discovered; (2) whether
               the car was moving when discovered; (3) any additional evidence
               indicating that the defendant was observed operating the vehicle
               before he or she was discovered; and (4) the position of the
               automatic transmission …. In addition to these four factors, any
               evidence that leads to a reasonable inference should be
               considered.


       Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010) (quotation and

       citations omitted), trans. denied. However, “the State does not have to prove

       movement of the car” in order to show the defendant operated it. Henderson,

       108 N.E.3d at 414. Thus, in Crawley, we found that it was “of no moment that

       nobody observed Crawley operate the motor vehicle” where the State presented

       sufficient circumstantial evidence from which a reasonable trier of fact could

       infer beyond a reasonable doubt that Crawley did so. Id.; see also, e.g., Wilkinson

       v. State, 70 N.E.3d 392, 401-02 (Ind. Ct. App. 2017) (holding circumstantial

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 8 of 10
       evidence was sufficient to prove operation of car even when no one witnessed

       the defendant driving the car).


[15]   Here, there was no testimony from anyone who saw Johnson driving the car.

       However, Johnson was the only one the witness saw sitting in the driver’s seat

       following the crash. The State presented evidence that Johnson was extremely

       intoxicated, with an ACE of .267—over three times the legal limit for operation

       of a vehicle.4 And both Kintner and Officer Gillman testified that Johnson

       appeared to be intoxicated and was unable to communicate at the scene of the

       crash. Given that evidence of Johnson’s extreme intoxication, the trial court

       found it implausible that Johnson would have had the judgment or control over

       his faculties to decide to move from a passenger’s seat to the driver’s seat for the

       purpose of moving the car out of the lane of traffic. That is, the court

       reasonably inferred from the circumstantial evidence of Johnson’s extreme

       intoxication and his location in the driver’s seat following the crash that

       Johnson was the driver when the vehicle crashed into the median and he simply

       remained in the driver’s seat until Kintner found him there. Johnson’s

       contention that one could also reasonably reach a different inference is a request

       that we reweigh the evidence, which we cannot do. Jones, 22 N.E.3d at 879.5




       4
           I.C. § 9-30-5-1.
       5
         Because we conclude that the evidence was sufficient to show that Johnson operated the car at the time it
       crashed, we need not address whether he operated the car when he attempted to move it out of the lane in
       which it had stopped or whether he did so out of necessity.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020                   Page 9 of 10
[16]   The State presented sufficient evidence to show that Johnson “operated” the

       vehicle at the time it crashed and therefore committed one count each of the

       crimes of operating a vehicle while intoxicated endangering a person and

       driving while suspended, both as Class A misdemeanors.


[17]   Affirmed.


       Kirsch, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020   Page 10 of 10
