Darren A. Mallett v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: December 21, 2016
• Docket: 71A03-1606-CR-1314
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Dec 21 2016, 8:41 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Philip R. Skodinski Gregory F. Zoeller South Bend, Indiana Attorney General of Indiana

Ellen H. Meilaender Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darren A. Mallett, December 21, 2016 Appellant-Defendant, Court of Appeals Case No. 71A03-1606-CR-1314 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable John M. Appellee-Plaintiff Marnocha, Judge Trial Court Cause No. 71D02-1507-F6-448

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016 Page 1 of 5 Case Summary

[1] Darren A. Mallett challenges the sufficiency of the evidence to support his

convictions for level 6 felony operating as a habitual traffic violator (“HTV”)

and level 6 felony operating while intoxicated (“OWI”) with a prior OWI

conviction. Finding the evidence sufficient to support his convictions, we

affirm.

Facts and Procedural History [2] The facts most favorable to the verdicts are as follows: Just after midnight on

July 6, 2015, Indiana State Police Sergeant Jeffery Dolson observed a disabled

vehicle parked in the roadway on the Indiana Toll Road exit in St. Joseph

County. He stopped to offer assistance and found Mallett standing outside the

driver’s door, talking on a cell phone. Another man, Kenneth Hilton, was

seated in the front passenger’s seat. Mallett told the sergeant that his wife was

bringing him transmission fluid. During the exchange, Sergeant Dolson

noticed that Mallett showed signs of intoxication, including slurred speech,

bloodshot eyes, and the odor of an alcoholic beverage. When asked for his

driver’s license, Mallett produced an identification card. The sergeant entered

Mallett’s information into the computer and discovered that his license was

suspended based on his status as a habitual traffic violator. Mallett asked the

sergeant to just let him go home and explained that “the only reason [he] was

driving was because [he] was better off than [Hilton] was.” Tr. at 61. The

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016 Page 2 of 5 vehicle was found to be registered to Mallett’s longtime girlfriend, whom he

had referred to as his “wife.” Id. at 60, 117.

[3] Sergeant Dolson arrested Mallett on the basis of driving while suspended, and

when he explained the situation to Hilton, he noticed that Hilton also exhibited

signs of intoxication. Hilton did not dispute the sergeant’s assertions that

Mallett had been driving. A search of the vehicle produced a plastic cup

containing alcohol, unopened beers, and several empty beer cans. Mallett

refused field sobriety tests and a chemical breath test. He was arrested and

taken to jail, where his blood alcohol concentration was 0.208.

[4] The State charged Mallett with Count I – class C misdemeanor OWI and

Count II – level 6 felony operating as an HTV. The State subsequently added

Count III – level 6 felony OWI, based on Mallett’s 2011 OWI conviction. A

jury found Mallett guilty of Counts I and II, and he waived jury trial on Count

III. The trial court found him guilty on Count III and entered judgment on

Counts II and III. Mallett now appeals.

Discussion and Decision [5] Mallett maintains that the evidence is insufficient to support his convictions.

When reviewing a challenge to the sufficiency of evidence, we neither reweigh

evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.

2007). Rather, we consider only the evidence and reasonable inferences most

favorable to the verdict and will affirm the conviction “unless ‘no rational fact-

finder’ could find the defendant guilty beyond a reasonable doubt.” Tuggle v.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016 Page 3 of 5 State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied. It is therefore not

necessary that the evidence “overcome every reasonable hypothesis of

innocence.” Drane, 867 N.E.2d at 147 (citation omitted).

[6] Mallett was convicted of operating as an HTV and OWI, both as level 6

felonies. 1 He asserts that the State failed to establish beyond a reasonable doubt

that he, not Hilton, was the driver of the vehicle. In addition to his self-serving

assertions to this effect, he cites as support Hilton’s trial testimony that Hilton

was the driver and that the reason Sergeant Dolson found Hilton in the

passenger’s seat was that he had been outside the vehicle before the officer’s

arrival and had merely re-entered the vehicle to stretch out in the passenger’s

seat. Mallett characterizes this testimony as uncontroverted yet disregards

Sergeant Dolson’s trial testimony that Mallett had admitted to him at the scene,

“[T]he only reason I was driving was because I was better off than [Hilton]

was.” Tr. at 61. He also disregards evidence that the vehicle was registered to

his “wife” and that when Sergeant Dolson explained the situation to Hilton at

the scene, Hilton did not dispute the sergeant’s assertion that Mallett was the

driver. Id. at 57, 60. We remind Mallett that we may neither reweigh evidence

nor judge witness credibility, and we must decline his invitation to do so. The

1 See Ind. Code § 9-30-10-16(a)(1) (person who unlawfully operates motor vehicle after having his Indiana driving privileges validly suspended as habitual traffic violator by the bureau of motor vehicles and operated motor vehicle when he knew he was suspended as HTV commits level 6 felony operating as HTV); see also, Ind. Code § 9-30-5-3(a)(1) (person who unlawfully operates motor vehicle while intoxicated after having been convicted within immediately preceding five years of OWI commits level 6 felony OWI).

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016 Page 4 of 5 probative evidence most favorable to the verdicts is sufficient to establish that

Mallett was the driver of the vehicle. Accordingly, we affirm his convictions.

[7] Affirmed.

Riley, J., and Altice, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1314 | December 21, 2016 Page 5 of 5