Jennifer Melissa Milburn v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 25, 2020
• Docket: 19A-CR-2038
• 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 Feb 25 2020, 10:12 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Alexander L. Hoover Curtis T. Hill, Jr. Law Office of Christopher G. Walter, Attorney General of Indiana P.C. Steven J. Hosler Nappanee, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Jennifer Melissa Milburn, February 25, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2038 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Paul E. Singleton, Appellee-Plaintiff. Magistrate Trial Court Cause No. 71D06-1805-CM-1863

Brown, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 1 of 6 [1] Jennifer Melissa Milburn 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 May 11, 2018, the bartender at Rum Village Inn saw Milburn seated at a

table with a couple of other people, asked if anyone at the table needed

anything else, and Milburn declined. Later, others at Milburn’s table got up

and ordered drinks, and when the bartender went to check on Milburn, she had

one of the mixed drinks in front of her. 1 Jennifer Burks was in the patio area at

Rum Village Inn, which had a white privacy fence around it, when she heard a

crash into the fence. Burks walked around the fence and saw a vehicle with

front-end damage and Milburn in the driver’s seat. According to Burks, “by the

looks of her, [Milburn] seemed intoxicated. Maybe a little nervous, too,

because she hit the fence.” Transcript Volume II at 19. Burks told Milburn she

did not need to be driving. Milburn pulled out into a street “driving very fast,

and there was a car coming down [the street], and she about ran into that

vehicle” and “that vehicle had slammed on its brakes or something.” Id. at 21.

[3] South Bend Police Officer Joel Paschen responded to the scene at Rum Village

Inn at approximately 8:10 p.m., spoke with witnesses, obtained a license plate

number from one of the witnesses, noticed the fence was cracked and broken,

1 The bartender testified her shift ended at 6:00 p.m.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 2 of 6 and discovered a piece of plastic trim from a vehicle. After he determined

Milburn was the owner of the vehicle, Officer Paschen went to Milburn’s

address and spoke with her at approximately 8:50 p.m. He matched the piece

of plastic trim to Milburn’s vehicle and noticed a white paint transfer on the

front bumper. Officer Dominic Hall performed field sobriety tests at about 9:00

p.m., and Milburn exhibited all six clues of impairment during the horizontal

gaze nystagmus test, all eight clues of impairment during the walk-and-turn test,

and three of the four clues of impairment during the one-leg-stand test.

[4] The State charged Milburn with: Count I, operating a vehicle while intoxicated

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

with an ACE of .15 or more as a class A misdemeanor; and Count III, leaving

the scene of an accident as a class B misdemeanor. Following a bench trial, the

court found Milburn guilty on Counts I and III and not guilty on Count II. The

court sentenced Milburn to 365 days with 360 days suspended on Count I and

60 days with 55 days suspended on Count III to be served concurrently, and it

ordered that Milburn serve her time on weekends.

Discussion

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

must consider only the probative evidence and reasonable inferences supporting

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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 3 of 6 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.

[6] Milburn argues there is no evidence establishing she was intoxicated while she

was operating her motor vehicle from Rum Village Inn to her residence, the

bartender never served her an alcoholic beverage, and there were no

observations by police of her operating her motor vehicle. As to Burks’s

testimony that she “seemed intoxicated. Maybe a little nervous, too, because

she hit the fence,” Transcript Volume II at 19, Milburn argues “Burks’s ability

to distinguish between nervousness and intoxication without any training

should call this single statement into question.” Appellant’s Brief at 8-9.

[7] 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. Intoxication may be

established through evidence of consumption of significant amounts of alcohol,

impaired attention and reflexes, watery or bloodshot eyes, 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

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 4 of 6 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.

[8] The trial court heard evidence that the bartender at Rum Village Inn observed

Milburn with a mixed drink in front of her and that Burks heard a crash into the

privacy fence around the patio area, went around the fence, saw Milburn in a

vehicle with front-end damage, believed that Milburn seemed intoxicated, and

told her that she did not need to be driving. The court heard Burks’s testimony

that Milburn pulled out into a street “driving very fast” and nearly struck

another moving vehicle. Transcript Volume II at 21. Burks testified she was

three or four feet from the privacy fence when the crash occurred. The court

also heard testimony that Milburn exhibited numerous clues of impairment

when administered field sobriety tests. The court found that the officers’

testimony was “quite credible.” Id. at 81. Milburn’s arguments are merely a

request that we reweigh the evidence and judge the credibility of the witnesses,

which we cannot do. Drane, 867 N.E.2d at 146.

[9] Based upon the record, we cannot say the inferences made by the trier of fact

here were unreasonable. We conclude that evidence of probative value exists

from which the court as the trier of fact could have found Milburn guilty

beyond a reasonable doubt of operating a vehicle while intoxicated endangering

a person as a class A misdemeanor.

[10] Affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 5 of 6 [11] Baker, J., and Riley, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 6 of 6