MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                             FILED
regarded as precedent or cited before any                               Feb 25 2020, 10:36 am

court except for the purpose of establishing                                 CLERK
                                                                         Indiana Supreme Court
the defense of res judicata, collateral                                     Court of Appeals
                                                                              and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kevin McShane                                            Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         Tiffany A. McCoy
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen Hahn,                                            February 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1749
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy Jones, Judge
Appellee-Plaintiff.                                      The Honorable David Hooper,
                                                         Magistrate
                                                         Trial Court Cause No.
                                                         49G08-1706-CM-24224



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020                Page 1 of 8
                                         Statement of the Case
[1]   Stephen Hahn appeals his conviction by jury of operating a vehicle while
                                                                                          1
      intoxicated in a manner endangering a person, a Class A misdemeanor. We

      affirm.


                                                     Issue
[2]   Hahn raises one issue, which we restate as: whether there is sufficient evidence

      to sustain his conviction.


                                   Facts and Procedural History
[3]   On June 30, 2017, at 2:53 a.m., an unidentified person called 911 to report an

      unconscious person sitting in a car in a restaurant parking lot. The caller told

      the dispatcher that the person was sitting in the driver’s seat, with the engine

      running.


[4]   Officer (later Detective) Jeremy Mackey of the Indianapolis Metropolitan

      Police Department (“IMPD”) was dispatched with another officer to the

      restaurant. He saw a car sitting in the parking lot; it was not in a space but

      rather sat near an exit to a street. If the car had rolled forward, it would have

      exited the lot and entered the street. Other vehicles entering or exiting the lot at

      that spot would have had to drive around the car.




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


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020   Page 2 of 8
[5]   Mackey noted that the car was running, with the brake lights on and the

      windows down. When he looked into the car, Mackey saw a person, later

      identified as Hahn, unconscious in the driver’s seat. Hahn’s foot was on the

      brake. He had food and vomit on his shirt, and Mackey smelled alcohol on his

      person.


[6]   Another officer turned off the car while Mackey awakened Hahn. Hahn exited

      the car upon Mackey’s order. Hahn’s balance was unsteady, and he grabbed

      the car’s frame as he pulled himself upright.


[7]   Meanwhile, IMPD Officer Adam Jones arrived. After conferring with the

      other officers, he approached Hahn, who was leaning on his car. Jones saw

      food on the front of Hahn’s shirt and smelled the odor of alcohol on his person.

      As he talked with Hahn, Jones noted that Hahn had “glassy blood shot eyes”

      and slurred speech. Tr. p. 62.


[8]   Jones administered the horizontal gaze nystagmus test to Hahn. During the

      test, Hahn displayed several indicators consistent with intoxication. Jones

      decided not to perform other tests on Hahn’s balance because Hahn stated that

      he had bad knees.


[9]   Next, Jones asked Hahn to submit to a blood draw, and Hahn agreed. As

      Jones drove Hahn to a hospital for the blood draw, Jones informed Hahn of his

      Miranda rights. During their subsequent conversation, Hahn admitted that he

      had been drinking that evening, that he “felt intoxicated,” and he “probably

      shouldn’t have been driving a car . . . .” Id. at 68.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020   Page 3 of 8
[10]   Hahn submitted to a blood draw. Subsequent laboratory testing revealed that

       Hahn’s blood sample had an ethyl alcohol concentration of 0.124 to 0.149

       percent.


[11]   On June 30, 2017, the State charged Hahn with operating a vehicle while

       intoxicated in a manner endangering a person, a Class A misdemeanor; and

       operating a vehicle with an ACE of .15 or more, a Class A misdemeanor. The

       State later amended the second charge to operating a vehicle with an ACE of

       .08 or more, a Class C misdemeanor.


[12]   On October 17, 2017, Hahn filed a request for a jury trial. The trial court

       presided over a jury trial on April 22, 2019. The jury determined Hahn was

       guilty as charged. During the May 20, 2019 sentencing hearing, the trial court

       vacated the guilty verdict of operating a vehicle with an ACE of .08 or more, a

       Class C misdemeanor, determining that it merged with the conviction of

       operating a vehicle while intoxicated in a manner endangering a person. Next,

       the Court imposed a sentence.


[13]   Hahn filed a motion to correct error, and the State filed a response. The trial

       court denied the motion, and this appeal followed.


                                    Discussion and Decision
[14]   Hahn argues the State failed to present sufficient evidence to sustain his

       conviction for operating a vehicle while intoxicated in a manner endangering a




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020   Page 4 of 8
                 2
       person. He claims the evidence shows only that he was parked in a lot when

       the officers arrived.


[15]   The standard of review for assessing the sufficiency of the evidence is well

       established:


               In reviewing a sufficiency of the evidence claim, the Court
               neither reweighs the evidence nor assesses the credibility of the
               witnesses. We look to the evidence most favorable to the verdict
               and reasonable inferences drawn therefrom. We will affirm the
               conviction if there is probative evidence from which a reasonable
               jury could have found the defendant guilty beyond a reasonable
               doubt.


       Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).


[16]   To obtain a conviction as charged, the State was required to prove beyond a

       reasonable doubt that: (1) Hahn; (2) operated a vehicle; (3) while intoxicated;

       (4) in a manner that endangered a person. Ind. Code § 9-30-5-2. The parties’

       dispute focuses on whether the State demonstrated that Hahn had “operated”

       the vehicle in which he was found. The Indiana General Assembly has defined

       “operate” as “to navigate or otherwise be in actual physical control of a vehicle,

       motorboat, off-road vehicle, or snowmobile.” Ind. Code § 9-13-2-117.5 (2016).




       2
        Hahn also challenges the sufficiency of the evidence supporting the charge of operating a vehicle with an
       ACE of .08 or more. The trial court vacated the jury’s verdict as to that charge, so Hahn’s claim is moot.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020                 Page 5 of 8
[17]   In determining whether a defendant was in “actual physical control” of a

       vehicle, a panel of this Court has noted the following factors are relevant: “(1)

       the location of the vehicle when discovered; (2) whether the vehicle was in

       motion when discovered; and (3) additional evidence that defendant was

       observed operating the vehicle before he or she was discovered.” West v. State,

       22 N.E.3d 872, 876 (Ind. Ct. App. 2014), trans. denied. “Any evidence that

       leads to a reasonable inference should be considered.” Hampton v. State, 681

       N.E.2d 250, 251-52 (Ind. Ct. App. 1997).


[18]   In Hampton, officers found Hampton asleep in the driver’s seat of his vehicle,

       which was sitting partially on a road and partially in a yard. The engine was

       running, the vehicle’s lights were on, and it was in gear. The Court concluded

       the evidence was sufficient to establish beyond a reasonable doubt that

       Hampton had operated the vehicle.


[19]   Next, in Custer v. State, 637 N.E.2d 187, 189 (Ind. Ct. App. 1994), an officer

       found Custer asleep in the driver’s seat in his car, which was parked along the

       side of the road. The engine was running. In addition, the officer had received

       a report that the vehicle had been seen traveling on the road near the location of

       the encounter. This evidence was deemed sufficient to establish that Custer had

       operated the car while intoxicated.


[20]   Finally, in Bowlin v. State, 164 Ind. App. 693, 695, 330 N.E.2d 353, 355 (1975),

       an officer found Bowlin asleep in the driver’s seat of his car, which was sitting

       in the median strip of a four-lane highway. The engine was running. The


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020   Page 6 of 8
       Court determined there was sufficient evidence that Bowlin had operated the

       vehicle.


[21]   By contrast, in Clark v. State, 611 N.E.2d 181, 181 (Ind. Ct. App. 1993), trans.

       denied, officers found Clark asleep in the driver’s seat of his car, which was

       partially parked in a parking spot at an apartment complex. The engine was

       running and the lights were on. A panel of this Court determined the evidence

       was insufficient to demonstrate that Clark had operated the car.


[22]   Similarly, in Hiegel v. State, 538 N.E.2d 265, 266 (Ind. Ct. App. 1989), trans.

       denied, officers found Hiegel asleep in the driver’s seat of his car, which was

       parked in a tavern’s parking lot. The engine was running, but the car was in

       park and the driver’s side door was open. A panel of this Court concluded the

       State had failed to sufficiently demonstrate that Hiegel had driven the car.


[23]   Finally, in Corl v. State, 544 N.E.2d 211, 212 (Ind. Ct. App. 1989), officers

       found Corl asleep in the driver’s seat of his vehicle, which was parked in a

       parking lot next to a tavern. The engine and lights were on. A panel of this

       Court determined the evidence was insufficient to demonstrate Corl had

       operated the car prior to falling asleep.


[24]   The facts of Hahn’s case are more similar to the circumstances in Hampton,

       Custer, and Bowlin than the circumstances in Clark, Hiegel and Corl. Hahn

       agreed with Jones that he was intoxicated and “probably shouldn’t have been

       driving a car,” Tr. p. 68, which is direct proof that he had operated the car

       before the officers arrived.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020   Page 7 of 8
[25]   In addition, although Hahn’s car was in a parking lot, it was located near an

       exit, pointing toward the street and partially obstructing other vehicles. The car

       was not in a parking spot. Finally, the engine was running and Hahn’s foot was

       on the brake. The car’s location gives rise to a reasonable inference that Hahn

       had driven it to that spot, similar to the vehicles in Hampton (found partially in a

       road, partially in a yard) and Bowlin (found parked in a median). By contrast,

       in Clark, Hiegel, and Corl, the evidence could have indicated that the defendants

       had become intoxicated while in nearby buildings, entered their vehicles, and

       fallen asleep instead of driving away, thus failing to establish operation of the

       vehicles while intoxicated. In Hahn’s case, the State presented sufficient

       evidence from which the finder of fact could conclude beyond a reasonable

       doubt that Hahn had operated his car before the police arrived.


                                                Conclusion
[26]   For the reasons stated above, we affirm the judgment of the trial court.


[27]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020   Page 8 of 8
