Eric Allen v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 27, 2015
• Docket: 08A02-1504-CR-237
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), Oct 27 2015, 8:31 am this 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 Steven Knecht Gregory F. Zoeller Vonderheide & Knecht, P.C. Attorney General of Indiana Lafayette, Indiana Paula J. Beller Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric Allen, October 27, 2015 Appellant-Defendant, Court of Appeals Case No. 08A02-1504-CR-237 v. Appeal from the Carroll Circuit Court State of Indiana, The Honorable Benjamin A. Appellee-Plaintiff Diener, Judge Trial Court Cause No. 08C01-1403-FC-2

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015 Page 1 of 5 Case Summary [1] Eric Allen appeals his conviction for class C felony operating a motor vehicle

while privileges are forfeited for life, following a jury trial. His sole contention

on appeal is that the evidence is insufficient to support his conviction.

Specifically, he argues that the State failed to prove that he “operated” a motor

vehicle. Finding the evidence sufficient, we affirm.

Facts and Procedural History [2] The facts most favorable to the verdict indicate that on March 1, 2014, at 11:40

p.m., Town of Flora Police Officer Joshua Disinger received a dispatch that a

car had slid off State Road 25 just south of Rockfield. Officer Disinger arrived

at the scene at 11:55 p.m. When he arrived, Officer Disinger observed that a

vehicle was in the ditch on the righthand side of the northbound lane. The

vehicle was approximately twenty feet from the roadway. Officer Disinger saw

that the taillights of the vehicle were switching back and forth between brake

lights and reverse lights “as if it was switching gears.” Tr. at 41. Disinger

surmised that the driver of the vehicle was trying to get the vehicle out of the

mud and ice by spinning the tires forward and backward. After Officer

Disinger exited his patrol car and proceeded down the embankment, the driver

of the vehicle, Allen, exited the driver’s-side door of the vehicle and approached

Officer Disinger. Allen told Officer Disinger that he was not “driving the

vehicle” but that he was just trying to “get it out of the ditch.” Id. at 43. The

vehicle was registered to Allen’s mother, Delores Williams.

Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015 Page 2 of 5 [3] The State charged Allen with class C felony operating a motor vehicle while

privileges are forfeited for life. A jury trial was held on January 26, 2015.

During trial, Allen testified that, on the night in question, his mother let his

nephew, Dewaun Filmore, borrow her car. Allen stated that his mother called

him and told him that Dewaun had called her to tell her that the car had slid off

the highway near Delphi. Allen testified that his mother asked him to go to the

scene to help. Allen explained that his friend Louie drove him to the scene of

the slide-off and dropped him off. He claimed that the two women who had

been riding with Filmore were still in the car when he got there, but that

Filmore was no longer present.

[4] Similarly, Filmore testified that he had been driving the vehicle when it slid-off

the highway. He stated that Allen’s mother came to pick him up and that he

left the scene before Officer Disinger arrived. The jury found Allen guilty as

charged. This appeal ensued.

Discussion and Decision [5] Allen challenges the sufficiency of the evidence to support his conviction.

When reviewing a claim of insufficient evidence, we neither reweigh the

evidence nor assess witness credibility. Bell v. State, 31 N.E.3d 495, 499 (Ind.

2015). We look to the evidence and reasonable inferences drawn therefrom that

support the verdict and will affirm if there is probative evidence from which a

reasonable factfinder could have found the defendant guilty beyond a

reasonable doubt. Id. In short, if the testimony believed by the trier of fact is

Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015 Page 3 of 5 enough to support the verdict, then the reviewing court will not disturb the

conviction. Id. at 500.

[6] The version of Indiana Code Section 9-30-10-17(a) in effect at the time of

Allen’s crime provided that “a person who operates a motor vehicle after the

person’s driving privileges are forfeited for life” under section 16 of the habitual

traffic violator chapter or its two predecessor statutes commits a class C felony.

Prior to trial, Allen stipulated that his driving privileges are forfeited for life and

that he was aware of that fact on March 1, 2014. His sole contention on appeal

is that the State failed to prove that he operated a motor vehicle on the day in

question. We disagree.

[7] In West v. State, 22 N.E.3d 872, 875 (Ind. Ct. App. 2014), trans. denied (2015),

another panel of this Court noted that, as applied to our motor vehicle statutes,

our legislature has defined “operate” as “to navigate or otherwise be in actual

physical control of a vehicle.” Id. (citing Ind. Code § 9-13-2-117.5). Factors

that may be considered in determining whether a person has operated a vehicle

include: (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. Id. “This is not

an exclusive list, because any evidence that leads to a reasonable inference

should be included.” Id. at 251-52.

[8] The facts most favorable to the verdict clearly supports a reasonable inference

that Allen was navigating or otherwise in actual physical control of a motor

Court of Appeals of Indiana | Memorandum Decision 08A02-1504-CR-237 | October 27, 2015 Page 4 of 5 vehicle when Officer Disinger arrived at the scene of the slide-off. Indeed,

Allen admits that he was trying to move the vehicle out of the ditch, in that he

sat in the driver’s seat of the running vehicle and engaged the steering wheel,

the accelerator, and the transmission. He simply urges that there was no

evidence that he earlier drove the vehicle on a public highway, and he invites us

to conclude that trying “to get the car out of the ditch” should not be considered

“operating” a motor vehicle. Appellant’s Br. at 10. We decline his invitation. 1

There was ample evidence before the jury to support its conclusion that Allen’s

actions constituted navigating and physically controlling a motor vehicle. The

State presented sufficient evidence from which the jury could conclude that

Allen operated a motor vehicle while his driving privileges were forfeited for

life. His conviction is affirmed.

[9] Affirmed.

May, J., and Bradford, J., concur.

1 Allen directs us to his own self-serving testimony and the testimony of Filmore, in which both claimed that Filmore, not Allen, was driving the vehicle when it slid off the highway. First, we note that the statutory definition of operating does not include a requirement that the navigation or actual physical control of the vehicle occur on a public road. Moreover, even assuming such requirement existed, it was the jury’s prerogative to determine the credibility of the witnesses, and we will not reassess that credibility on appeal. Bell, 31 N.E.3d at 499. Curiously, Filmore was not present at the scene when Officer Disinger arrived and, despite his and Allen’s explanations, the jury was free to disbelieve their narratives. The jury had enough evidence before it to reasonably infer that Allen was driving the vehicle when it slid off the highway.

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