Cynthia Miller v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 12, 2020
• Docket: 19A-CR-2911
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 12 2020, 9:03 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean P. Hilgendorf Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Cynthia Miller, May 12, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2911 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Julie P. Verheye, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D04-1903-CM-884

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020 Page 1 of 6 [1] Cynthia Miller appeals and claims the evidence is insufficient to sustain her

conviction for operating a vehicle while intoxicated endangering a person as a

class A misdemeanor. We affirm.

Facts and Procedural History

[2] On March 1, 2019, Indiana State Trooper Kyle Glaze heard the South Bend

Police Department advise of a hit-and-run and responded to the scene. When

he arrived, he noticed other units at the scene in a cul-de-sac and another officer

speaking with Miller. Trooper Glaze observed from a distance of twenty to

thirty feet that Miller was visibly swaying. He approached Miller and asked her

“questions as to if she had been driving, the crash, and drinking.” Transcript

Volume II at 5. Miller stated that she had been driving the vehicle and had

accidentally struck the other vehicle. Trooper Glaze asked about her drinking,

and she admitted to drinking two beers. He noticed her speech was slurred and

at times it was difficult to understand her. Trooper Glaze asked Miller which

vehicle she had been driving, and she pointed to a vehicle behind her in a

driveway. He did not see damage to her vehicle. He noticed minor damage to

a Honda Pilot and spoke with the victims. Trooper Glaze then attempted to

administer the horizontal gaze nystagmus test several times. However, Miller

“seemed either belligerent or incoherent to be able to successfully follow

directions in order to complete the test.” Id. at 8. He observed her eyes were

bloodshot and glossy. According to Trooper Glaze, prior to transporting her to

the jail and “while observing her clothing, it appeared that her groin area was

saturated wet.” Id. at 10. Another officer transported Miller to the jail. At the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020 Page 2 of 6 jail, Trooper Glaze administered the walk-and-turn test, and Miller exhibited

seven indicators of intoxication which was considered failure.

[3] The State charged Miller with: Count I, operating a vehicle while intoxicated

endangering a person as class A misdemeanor; Count II, operating a vehicle

while intoxicated as a class C misdemeanor; and Count III, leaving the scene of

an accident as a class B misdemeanor. At a bench trial, the State presented the

testimony of Trooper Glaze. On cross-examination, when asked if he knew

how much time elapsed between the neighbors reporting an accident and for the

police to respond, Trooper Glaze responded he believed the approximation

given by the victims was five to ten minutes. Miller’s defense counsel moved

for a directed verdict and argued there was “no proof that she was driving,

except for what an officer had heard and provided to the Court.” Id. at 17. The

court found the State did not meet its burden with respect to Count III and

granted Miller’s motion for a directed verdict as to that count. The court found

her guilty on Counts I and II, stated Miller admitted to drinking a couple of

beers, had been driving, and hit a car, and said “[c]ertainly, that’s conduct that

could have endangered a person.” Id. at 24. The court entered judgment of

conviction for operating a vehicle while intoxicated endangering a person as a

class A misdemeanor under Count I, sentenced Miller to sixty days with fifty-

five days suspended, and placed her on probation for one year.

Discussion

[4] When reviewing the sufficiency of the evidence to support a conviction, we

must consider only the probative evidence and reasonable inferences supporting Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020 Page 3 of 6 the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess

witness credibility or reweigh the evidence. Id. We consider conflicting

evidence most favorably to the trial court’s ruling. Id. We affirm the conviction

unless no reasonable fact-finder could find the elements of the crime proven

beyond a reasonable doubt. Id. It is not necessary that the evidence overcome

every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient

if an inference may reasonably be drawn from it to support the verdict. Id.

[5] Miller argues that, even if she was intoxicated at the time Trooper Glaze

observed her, the conclusion that she had been driving while intoxicated was

based solely on speculation and not inference. She argues Trooper Glaze did

not see her operate a vehicle. She argues there was no evidence to link any

intoxication to the time of any operation of a motor vehicle.

[6] Ind. Code § 9-30-5-2 provides “a person who operates a vehicle while

intoxicated commits a Class C misdemeanor” and the offense “is a Class A

misdemeanor if the person operates a vehicle in a manner that endangers a

person.” “Intoxicated” means “under the influence of: (1) alcohol . . . so that

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

control of a person’s faculties.” Ind. Code § 9-13-2-86. To operate a vehicle is

to drive it or be in actual control of it upon a highway. Jellison v. State, 656

N.E.2d 532, 535 (Ind. Ct. App. 1995). Circumstantial evidence is sufficient to

prove that the defendant operated the vehicle while intoxicated. Id.

Intoxication may be established through evidence of consumption of significant

amounts of alcohol, impaired attention and reflexes, watery or bloodshot eyes,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020 Page 4 of 6 an odor of alcohol on the breath, unsteady balance, failed field sobriety tests,

and slurred speech. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009),

opinion adopted, 929 N.E.2d 196 (Ind. 2010). The element of endangerment can

be established by evidence showing the defendant’s condition or operating

manner could have endangered any person, including the public, the police, or

the defendant. Id. 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. Id.

[7] The record reveals that Trooper Glaze testified that Miller admitted she had

consumed two beers and that he observed that she was visibly swaying, her

speech was slurred, her eyes were bloodshot and glossy, and she failed the walk-

and-turn test. Further, when he asked her about the crash and if she had been

driving and drinking, Miller stated that she had been driving and had

accidentally struck the other vehicle. Trooper Glaze testified that he asked

Miller which vehicle she had been driving, and she pointed to a vehicle in the

driveway behind her. He also testified that he spoke with the victims and

noticed minor damage to a Honda Pilot. Based upon the record, we cannot say

the inferences made by the trier of fact were unreasonable. We conclude that

evidence of probative value exists from which the court as the trier of fact could

have found Miller guilty beyond a reasonable doubt of operating a vehicle while

intoxicated endangering a person as a class A misdemeanor.

[8] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020 Page 5 of 6 [9] Najam, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2911 | May 12, 2020 Page 6 of 6