Donald Ray Ross v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: March 16, 2017
• Docket: 49A05-1608-CR-1804
• Status: Published

Opinion

FILED MEMORANDUM DECISION Mar 16 2017, 10:47 am

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

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE John L. Tompkins Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Tyler G. Banks Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Donald Ross, March 16, 2017

Appellant-Defendant, Court of Appeals Case No. 49A05-1608-CR-1804 v. Appeal from the Marion Superior Court. The Honorable David M. Hooper, State of Indiana, Magistrate. Appellee-Plaintiff. Cause No.49G12-1509-CM-34269

Sharpnack, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017 Page 1 of 6 Statement of the Case [1] Donald Ross appeals his conviction of operating a vehicle while intoxicated 1 endangering a person, a Class A misdemeanor. He contends that there was

insufficient evidence to support his conviction. We affirm.

Issue [2] Ross raises one issue for review, which we restate as whether the State

presented sufficient evidence to support his conviction for operating a vehicle

while intoxicated endangering a person.

Facts and Procedural History [3] On September 25, 2015, a car accident occurred, involving a pedestrian and

resulting in a fatality. The scene of the accident was in Indianapolis, on

Southport Road, near the intersection of Emerson Avenue. At the scene, there

were at least ten police vehicles with emergency lights activated, fire trucks, and

personnel from a major news media network. Yellow police tape was placed

around the perimeter of the accident scene.

[4] Near the intersection of Emerson Avenue and Southport Road, several yards

east of the accident scene and the police tape, two police officers had parked

their vehicles, with emergency lights flashing, in the traffic lanes to prevent

traffic from travelling westbound on Southport Road. The officers were

1 Ind. Code § 9-30-5-2(b) (2001).

Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017 Page 2 of 6 standing by their vehicles. The officers left a narrow lane between one police

car, the shoulder and the grass to allow emergency personnel access to the

accident scene.

[5] Around 3:30 a.m., Ross was driving south on Emerson Avenue. He turned

right (westbound) onto Southport Road and into the narrow lane created by the

officers. The officers waved at him to stop as he drove past. Tr. p. 52. Ross

continued to drive his vehicle until he reached the barrier created by the police

tape. He then stopped his vehicle and remained inside.

[6] One of the officers entered his vehicle and drove to where Ross had stopped.

He then exited his vehicle, approached Ross’s vehicle, and asked Ross for his

license and registration. Ross handed the officer his license. Instead of handing

the officer his registration, Ross repeatedly attempted to give the officer his

automobile insurance card. The officer had to explain multiple times that he

did not need Ross’s insurance information.

[7] The officer detected an odor of an alcoholic beverage coming from Ross’s

breath and person. When asked, Ross stated that he had been at a bar

celebrating with clients from work, and admitted to having drunk “a couple [of]

drinks.” Id. at 26. Ross agreed to perform standardized field sobriety tests.

The tests were administered at the Beech Grove Police Department. Ross

failed all three tests – the horizontal gaze nystagmus test, the walk and turn, and

the one leg stand.

Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017 Page 3 of 6 [8] Ross was charged with operating a vehicle while intoxicated endangering a

person, as a Class A misdemeanor, and operating a vehicle with an alcohol

concentration equivalent of .08 or more, as a Class C misdemeanor. A bench 2 trial was held, during which the Class C misdemeanor count was dismissed.

Ross was found guilty of the Class A misdemeanor charge. He now appeals.

Discussion and Decision [9] Ross challenges the sufficiency of the State’s evidence underlying his

conviction. When reviewing a claim of sufficiency of the evidence, we do not

reweigh the evidence or judge the credibility of the witnesses. Jones v. State, 783

N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

supporting the judgment and the reasonable inferences that may be drawn from

that evidence to determine whether a reasonable trier of fact could conclude the

defendant was guilty beyond a reasonable doubt. Id. If there is substantial

evidence of probative value to support the conviction, it will not be set aside.

Id. In order to prove that Ross operated a vehicle while intoxicated, as a Class

A misdemeanor, the State had to show that he “operate[d] a vehicle in a

manner that endanger[ed] a person.” Ind. Code § 9-30-5-2(b).

[10] Ross maintains that the State failed to present sufficient evidence that he

operated his vehicle in a manner that endangered a person, and, thus, his actual

2 Although the sentencing order indicates that Ross pleaded guilty to operating a vehicle while intoxicated endangering a person, the transcript from the proceeding shows that Ross was found guilty after a bench trial. Tr. pp. 69-71.

Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017 Page 4 of 6 innocence is established. The State is “required to submit proof of

endangerment that [goes] beyond mere intoxication in order for the defendant

to be convicted of operating while intoxicated, as a Class A misdemeanor.”

Dorsett v. State, 921 N.E.2d 529, 533 (Ind. Ct. App. 2010) (internal quotation

omitted). 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. Id. at

532. However, 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.

[11] Officer Lance Rector testified that the two marked police vehicles were blocking

both traffic lanes of westbound Southport Road. Only a narrow lane between

the edge of the road, the shoulder and the grass was accessible. The vehicles’

emergency lights were flashing, and the two officers were standing next to one

of the police vehicles. Ross turned onto Southport Road, drove past the officers

as they waved at him to stop, and continued driving until he reached the police

tape surrounding the accident scene and could travel no farther. Beyond the

tape, over 100 people were present, including law enforcement, emergency

responders, media, and members of the public.

[12] Officer Rector further testified that when he approached Ross’s vehicle, he

observed that Ross’s eyes were red and watery and that he could smell the odor

of an alcoholic beverage emanating from Ross’s vehicle and his person. The

officer asked Ross multiple times for his vehicle registration, but Ross kept

Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017 Page 5 of 6 trying to give the officer proof of insurance. Ross admitted that he had been

drinking that evening, and later failed field sobriety tests.

[13] In short, in an intoxicated state, Ross drove his vehicle down a narrow lane,

very close to two uniformed police officers. He ignored the officers and their

vehicles with lights illuminated, and continued driving up to an accident scene

that contained over 100 people. Based upon the foregoing, we find that the

State presented sufficient evidence to support the trial court’s conclusion that

Ross operated his vehicle in a manner that endangered others.

Conclusion [14] For the reasons stated above, the judgment of the trial court is affirmed.

[15] Affirmed.

Bradford, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1608-CR-1804 | March 16, 2017 Page 6 of 6