      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                         FILED
      regarded as precedent or cited before any                                Apr 20 2020, 9:47 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




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Valerie K. Boots                                          Curtis T. Hill, Jr.
      Talisha Griffin                                           Attorney General of Indiana
      Marion County Public Defender Agency
                                                                Tina L. Mann
      – Appellate Division                                      Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Sam M. McFarland,                                         April 20, 2020
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                19A-CR-2585
              v.                                                Appeal from the Marion Superior
                                                                Court
      State of Indiana,                                         The Honorable Mark F. Renner,
      Appellee-Plaintiff.                                       Magistrate
                                                                Trial Court Cause No.
                                                                49G18-1808-F6-25985



      Mathias, Judge.


[1]   Following a bench trial in Marion Superior Court, Sam M. McFarland was

      convicted of Level 6 felony operating a vehicle while intoxicated (“OWI”) and


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020                    Page 1 of 9
      Class A misdemeanor resisting law enforcement. McFarland appeals and

      claims that the State failed to present evidence sufficient to support his

      conviction for Level 6 felony OWI.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In the wee hours of July 28, 2018, Commander Jerry Leary (“Commander

      Leary”) of the Indianapolis Metropolitan Police Department (“IMPD”) was in

      his patrol car in downtown Indianapolis working as a “DUI officer.” Tr. p. 5.

      Commander Leary saw a maroon Dodge Ram pickup truck traveling south on

      Pennsylvania Street make a sudden lane change, but the driver’s-side tires

      remained on the left side of the lane divider. This caught Commander Leary’s

      attention, and he began to follow the truck.


[4]   The pickup truck continued south and reached where Pennsylvania Street

      merges into Madison Avenue and goes under a railroad overpass. At the

      overpass, the street lanes are separated by large concrete abutments. The driver

      of the pickup truck, later identified as McFarland, failed to keep the vehicle in

      one lane, crossing the white line that separated the lanes. The driver also slowed

      down, braked, released the brakes, then braked again as he approached the

      abutments. McFarland almost ran into an abutment but swerved into the

      appropriate lane and drove under the overpass.


[5]   Commander Leary activated the emergency lights in his patrol car to initiate a

      traffic stop. McFarland continued to drive for approximately two and one-half
      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 2 of 9
      blocks before pulling over to the side of the street. Commander Leary

      approached the driver’s side of the vehicle and asked McFarland for his driver’s

      license. McFarland stated, “[L]ook man. This is going to get me in a lot of

      trouble. Can I just – can you just let me walk home, you know, can I park my

      truck? Can I get somebody to come pick me up?” Tr. p. 15. Commander Leary

      responded, “Let’s just get your driver license and if things go [the] right way,

      then of course you can go home.” Id. As McFarland searched for his

      identification, still mumbling that he was going to be in trouble, Commander

      Leary detected the odor of alcohol coming from McFarland. He also saw that

      McFarland’s eyes were glassy and bloodshot and that McFarland’s speech was

      slurred. Eventually, McFarland produced an Indiana identification card instead

      of a driver’s license. Commander Leary ran McFarland’s information through

      the computer in his patrol car and learned that McFarland’s driver’s license was

      suspended.


[6]   Commander Leary returned to the truck, which was still running. McFarland

      reached up to grab the gear shift and asked if he could just go home. Leary told

      McFarland that he could not do that, and eventually reached into the truck

      himself to turn off the engine and remove the keys from the ignition. He also

      called for a backup officer.


[7]   When the backup officer arrived, Commander Leary informed her that he was

      going to conduct field sobriety tests on McFarland. But when he looked back at

      the truck, McFarland had exited the vehicle and was standing on the sidewalk.

      Commander Leary reminded McFarland that he still had his identification card

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 3 of 9
       and warned him not to flee. But when Commander Leary told McFarland that

       he was going to be placed under arrest, McFarland took off on foot, running

       south on Madison Avenue. McFarland continued to flee with the officers

       running after him. The officers eventually lost track of McFarland and set up a

       perimeter and called in K9 officers for assistance. Still, McFarland successfully,

       if only temporarily, eluded the police. The police had McFarland’s truck towed

       to an impound lot.


[8]    The following day, McFarland reported that his truck had been stolen. IMPD

       Officer Eric Kenney (“Officer Kenney”) went to McFarland’s home in response

       to the stolen vehicle report. Officer Kenney explained to McFarland that his

       truck had been towed and was in the impound lot. Officer Kenney did not

       arrest McFarland at that time.


[9]    On August 8, 2018, the State charged McFarland with Class A misdemeanor

       resisting law enforcement and Class A misdemeanor OWI endangering a

       person. The State also alleged that McFarland had a prior conviction for OWI,

       elevating the current offense to a Level 6 felony. After a bench trial held on

       August 28, 2019, the trial court found McFarland guilty as charged. The court

       also found that McFarland had a prior conviction for OWI and entered

       judgment on the OWI charge as a Level 6 felony. McFarland now appeals.


                                          Standard of Review
[10]   Upon review of a challenge to the sufficiency of the evidence to support a

       criminal conviction, we respect the fact-finder’s exclusive province to weigh

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 4 of 9
       conflicting evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018)

       (citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We

       therefore neither reweigh the evidence nor judge the credibility of the witnesses.

       Id. Instead, we consider only the probative evidence and reasonable inferences

       supporting the judgment. Id.


[11]   McFarland argues that the evidence was insufficient to support his convictions

       because the evidence supported a reasonable theory of innocence. This,

       however, is not the proper standard of review. To be sure, if the evidence

       establishing the actus reus of an offense is entirely circumstantial, the trial court

       must instruct the jury that: “in determining whether the guilt of the accused is

       proven beyond a reasonable doubt, you should require that the proof be so

       conclusive and sure as to exclude every reasonable theory of innocence.”

       Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012).


[12]   But our supreme court has long held that this “reasonable theory of innocence”

       standard is “not applicable to appellate review for sufficiency of evidence.” Ogle

       v. State, 698 N.E.2d 1146, 1149 (Ind. 1998) (emphasis added); see also Myers v.

       State, 532 N.E.2d 1158, 1159 (Ind. 1989) (“[E]xclusion of every reasonable

       hypothesis of innocence is not the proper appellate standard of review in

       sufficiency matters[.]”). Instead, “[a]n appellate claim of insufficient evidence

       will prevail if, considering the probative evidence and reasonable inferences that

       support the judgment, and without weighing evidence or assessing witness

       credibility, we conclude that no reasonable trier of fact could find the defendant



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 5 of 9
       guilty beyond a reasonable doubt.” Ogle, 698 N.E.2d at 1149. It is with this

       deferential standard that we review McFarland’s claims.


                                        Discussion and Decision
[13]   McFarland challenges the sufficiency of the evidence supporting his conviction

       for Level 6 felony OWI.1 The statute defining this offense provides:


               (a) Except as provided in subsection (b), a person who operates a
               vehicle while intoxicated commits a Class C misdemeanor.

               (b) An offense described in subsection (a) is a Class A
               misdemeanor if the person operates a vehicle in a manner that
               endangers a person.


       Ind. Code § 9-30-5-2. Further, “a person who violates section 1 or 2 of [Indiana

       Code chapter 9-30-5] commits a Level 6 felony if . . . the person has a previous

       conviction of operating while intoxicated that occurred within the seven (7)

       years immediately preceding the occurrence of the violation of section 1 or 2 of

       this chapter.” Ind. Code § 9-30-5-3


[14]   Thus, to prove that McFarland committed Level 6 felony OWI as charged, the

       State was required to establish that he operated a vehicle while intoxicated, that

       his operation endangered a person, and that he had a prior conviction for OWI

       within the seven years prior to his commission of the instant offense.

       McFarland does not deny that he has a prior conviction for OWI within seven



       1
        McFarland does not challenge the sufficiency of the evidence supporting his conviction for resisting law
       enforcement.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020                    Page 6 of 9
       years of the instant offense. But he claims that the State failed to prove that he

       was intoxicated or that he endangered a person.


[15]   With regard to the requirement of intoxication, Indiana Code section 9-13-2-86

       defines “intoxicated” 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.” (emphasis added). In turn, “impairment” can be established

       by evidence of:


               (1) the consumption of a significant amount of alcohol; (2)
               impaired attention and reflexes; (3) watery or bloodshot eyes; (4)
               the odor of alcohol on the breath; (5) unsteady balance; (6)
               failure of field sobriety tests; and (7) slurred speech.


       Naas v. State, 993 N.E.2d 1151, 1153 (Ind. Ct. App. 2013) (citing Vanderlinden v.

       State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied).


[16]   In the present case, the State presented evidence that McFarland was driving

       erratically. When Commander Leary pulled the truck over and approached the

       vehicle, McFarland smelled of alcohol, had glassy, bloodshot eyes and slurred

       speech, and did not heed the officer’s instructions. This is sufficient to establish

       that McFarland was intoxicated. See id. (holding that evidence was sufficient to

       prove that defendant was intoxicated where he had “red watery eyes, slurred

       speech, unsteady balance and had the odor of an alcoholic beverage upon his

       person,” and there was an empty liquor bottle in the vehicle); Staley v. State, 895

       N.E.2d 1245, 1251 (Ind. Ct. App. 2008) (holding that evidence was sufficient to

       prove that defendant was intoxicated where defendant smelled strongly of

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 7 of 9
       alcohol and had bloodshot eyes, slurred speech, and difficulty with

       coordination and balance), trans. denied.


[17]   McFarland’s argument that there were innocent explanations for his

       appearance and conduct—that he was driving erratically because of the poor

       road conditions and bad lighting, and that his eyes were bloodshot because of

       allergies or lack of sleep—are nothing more than a request that we reweigh the

       evidence and come to a conclusion other than that reached by the trial court,

       which we will not do. Considering the evidence favorable to the trial court’s

       judgment, and the reasonable inferences that can be drawn from this evidence,

       we conclude that the State presented sufficient evidence to establish that

       McFarland was intoxicated.


[18]   We reach a similar conclusion regarding McFarland’s argument that there was

       no evidence that his driving while intoxicated endangered a person. We have

       explained before that:


               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. Endangerment does not require that a
               person other than the defendant be in the path of the defendant’s
               vehicle or in the same area to obtain a conviction.


       Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009) (citing Staley, 895

       N.E.2d at 1249), opinion adopted, 929 N.E.2d 196 (Ind. 2010).




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 8 of 9
[19]   Here, there was evidence that McFarland drove erratically and failed to keep

       his vehicle in one lane. As he approached the overpass and concrete abutments,

       he slowed down, braked, released the brake, then braked again. McFarland

       avoided hitting an abutment only by swerving back into a lane. From this

       evidence, the trial court could reasonably conclude that McFarland operated his

       vehicle in a manner that could have endangered himself or another driver. See

       Staley, 895 N.E.2d at 1251 (holding that evidence was sufficient to prove that

       defendant’s drunk driving endangered a person where the arresting officer

       observed the defendant drive unsafely by speeding and driving with his

       headlights off). McFarland’s arguments to the contrary are nothing more than a

       request that we reweigh the evidence


                                                 Conclusion
[20]   The State presented evidence sufficient to support McFarland’s conviction for

       Level 6 felony OWI endangering a person. Accordingly, we affirm the

       judgment of the trial court.


[21]   Affirmed.


       Riley, J., and Tavitas, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020   Page 9 of 9
