James F. Gibbons, Jr. v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: September 8, 2017
• Docket: 08A05-1703-CR-546
• 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 Sep 08 2017, 7:19 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 Steven Knecht Curtis T. Hill, Jr. Vonderheide & Knecht, P.C. Attorney General Lafayette, Indiana Lyubov Gore Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

James F. Gibbons, Jr., September 8, 2017 Appellant-Defendant, Court of Appeals Case No. 08A05-1703-CR-546 v. Appeal from the Carroll Circuit Court State of Indiana, The Honorable Benjamin A. Appellee-Plaintiff Diener, Judge Trial Court Cause No. 08C01-1506-F5-7

Crone, Judge.

Court of Appeals of Indiana | Memorandum Decision 08A05-1703-CR-546 |September 8, 2017 Page 1 of 5 Case Summary [1] James F. Gibbons, Jr., appeals his conviction, following a jury trial, for level 5

felony operating a vehicle while privileges are forfeited for life. He contends

that the State presented insufficient evidence to support his conviction. Finding

the evidence sufficient, we affirm.

Facts and Procedural History [2] On June 17, 2015, Ross Egelhoff witnessed Gibbons, someone he has known

for almost thirty years, operate a vehicle. Specifically, around noon that day,

Egelhoff was driving to lunch when he passed Gibbons driving his black Jeep

Cherokee in the opposite direction. The two men pulled their vehicles over and

spoke for about five minutes. No other person was in Gibbons’s vehicle. Then,

at 2:00 p.m., Gibbons drove to Ross’s home to visit. Egelhoff observed

Gibbons drive up his driveway in the Jeep. Again, no other person was in the

vehicle. It is undisputed that on that date, Gibbon’s driving privileges had been

forfeited for life.

[3] Gibbons stayed at Egelhoff’s for several hours and was drinking alcohol.

Egelhoff began feeling uncomfortable because he thought the situation was

getting “out of control” and that Gibbons had “had enough to drink.” Tr. Vol.

2 at 23, 28. Egelhoff decided to call the police. Carroll County Sheriff’s Office

Deputy Spencer Kingery responded to the dispatch regarding “an unwanted

guest” at Egelhoff’s residence. Id. at 9. The dispatch operator advised Deputy

Kingery that the subject was a habitual traffic violator and possibly intoxicated.

Court of Appeals of Indiana | Memorandum Decision 08A05-1703-CR-546 |September 8, 2017 Page 2 of 5 When Deputy Kingery arrived, Gibbons was inside his Jeep in Egelhoff’s

driveway. Deputy Kingery observed that Gibbons was “either passed out or

asleep in the driver’s seat kind of leaning over toward the passenger seat.” Id. at

12. Deputy Kingery spoke to Egelhoff and learned that Gibbons was “not

wanted [on Egelhoff’s property] at that time.” Id. Deputy Kingery then

attempted to talk to Gibbons and knocked on the vehicle door several times.

The deputy eventually had to reach in the vehicle and shake Gibbons by the

shoulder in an attempt to rouse him. Gibbons responded with “a bunch of

mumbling” and was “kind of incoherent.” Id. at 13. Deputy Kingery observed

that the keys were in the Jeep’s ignition, but the vehicle was not running. After

doing a check on the expired license plate on the Jeep, and speaking further to

Egelhoff about the events of the day, Deputy Kingery arrested Gibbons.

[4] The State charged Gibbons with level 5 felony operating a vehicle while

privileges are forfeited for life. Following trial, the jury found Gibbons guilty as

charged. The trial court imposed a four-year sentence. This appeal ensued.

Discussion and Decision [5] Gibbons contends that the State presented insufficient 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 conviction, and will affirm if there is probative

evidence from which a reasonable factfinder could have found the defendant

Court of Appeals of Indiana | Memorandum Decision 08A05-1703-CR-546 |September 8, 2017 Page 3 of 5 guilty beyond a reasonable doubt. Id. In short, if the testimony believed by the

trier of fact is enough to support the conviction, then the reviewing court will

not disturb it. Id. at 500.

[6] To prove that Gibbons committed level 5 felony operating a vehicle while

privileges are suspended for life, the State was required to prove that Gibbons

(1) operated a motor vehicle; (2) while his driving privileges were forfeited for

life. See Ind. Code § 9-30-10-17; Brock v. State, 955 N.E.2d 195, 204 (Ind. 2011),

cert. denied (2012). The parties here agreed at trial that on June 17, 2015,

Gibbons’s driving privileges had been forfeited for life. State’s Ex. 1. Thus, the

only issue was whether Gibbons operated a motor vehicle on that date.

[7] Egelhoff testified unequivocally that he observed Gibbons operate a motor

vehicle twice on June 17, 2015. He observed Gibbons driving once around

noon, and again at 2:00 p.m. This testimony alone was sufficient to support the

jury’s verdict. See Sallee v. State, 51 N.E.3d 130, 135 (Ind. 2016) (conviction can

be sustained on the testimony of a single witness, even where the evidence is

uncorroborated). Moreover, while we need not go into detail, the State

presented additional evidence which supported a reasonable inference that

Gibbons operated a motor vehicle on June 17, 2015. See Tr. Vol. 2 at 67-72.

Gibbons simply points to his own self-serving testimony and requests that we

reweigh the evidence and reassess witness credibility in his favor. However,

this is not a task within our prerogative on appeal. The State presented

sufficient evidence to support Gibbons’s conviction for level 5 felony operating

Court of Appeals of Indiana | Memorandum Decision 08A05-1703-CR-546 |September 8, 2017 Page 4 of 5 a motor vehicle while privileges are forfeited for life. Therefore, we affirm the

conviction.

[8] Affirmed.

Vaidik, C.J., and Mathias, J., concur.

Court of Appeals of Indiana | Memorandum Decision 08A05-1703-CR-546 |September 8, 2017 Page 5 of 5