MEMORANDUM DECISION Feb 17 2015, 9:54 am Pursuant to Ind. Appellate Rule 65(D), 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 Timothy J. Burns Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Kenneth E. Biggins Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerry Miller, February 17, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1405-CR-302 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Carol Orbison, Senior Judge Appellee-Plaintiff. 49F19-1304-CM-24215
Kirsch, Judge.
[1] Jerry Miller was convicted after a jury trial of operating a vehicle with a blood
alcohol content (“BAC”) over 0.151 as a Class A misdemeanor. He appeals,
1 See. Ind. Code § 9-30-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 1 of 6 raising the following issue for our review: whether the State presented sufficient
evidence to support his conviction.
[2] We affirm.
Facts and Procedural History [3] On April 14, 2013, Alexis Pompey was working the night shift at a Village
Pantry in Indianapolis, Indiana. Since the store stayed open all night, but
locked its doors at 10:00 p.m., customers had to interact with the attendant
through a pass-through window. While working that night, Pompey observed
Miller drive up to a gas pump and exit from the driver’s side door. Miller came
up to the window and paid for gas. After pumping the gas, Miller returned to
the window and, appearing intoxicated, began to argue with Pompey about the
amount charged for the gas. Miller then returned to his vehicle and drove
away.
[4] About fifteen to twenty minutes later, Miller came back to the gas station.
Pompey again observed Miller driving, and he was accompanied by another
vehicle. After parking, Miller and another individual approached the window
and again argued with and cursed at Pompey. Feeling threatened, Pompey
called 911 for assistance. Miller then returned to his vehicle and sat in the
driver’s seat.
[5] Approximately five minutes later, Indianapolis Metropolitan Police
Department (“IMPD”) Officer Klinton Streeter arrived at the Village Pantry.
When he arrived, Officer Streeter parked behind Miller’s vehicle. The driver’s Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 2 of 6 door was open, and Miller was sitting halfway on the seat and halfway off the
seat with his left foot on the ground. Officer Streeter spoke with Miller and
observed that Miller had glassy, bloodshot eyes, poor manual dexterity, and
smelled of alcohol. Due to Miller’s appearance and behavior, Officer Streeter
decided to administer field sobriety tests to Miller. After administering three
tests, Officer Streeter determined that Miller was intoxicated. Officer Streeter
then administered a portable breath test, and Miller tested positive for
intoxication. Miller told Officer Streeter that he was not the driver of the
vehicle, but did not identify anyone else as the driver. Officer Streeter did not
locate any evidence that anyone else drove the vehicle.
[6] IMPD Officer Craig Wildauer arrived shortly after Officer Streeter. Miller
initially denied driving the vehicle when speaking with Officer Wildauer, but
Miller later admitted to Officer Wildauer that he was the driver. Officer
Wildauer arrested Miller and transported him to the Arrestee Processing Center
and administered a chemical test, which yielded a result of 0.20 grams of
alcohol per 210 milligrams of breath.
[7] The State charged Miller with operating while intoxicated as a Class C
misdemeanor and operating a vehicle with a BAC over 0.15 as a Class A
misdemeanor. A jury trial took place on April 4, 2014, and the jury found
Miller guilty on both counts. The trial court sentence Miller to an aggregate
365 days, all suspended. Miller now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 3 of 6 Discussion and Decision [8] Our standard of review for sufficiency claims is well-settled. When we review a
claim of sufficiency of the evidence, we do not reweigh the evidence or judge
the credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct.
App. 2009) (citing 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 therein 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. It is the function of the trier of fact to resolve conflicts of
testimony and to determine the weight of the evidence and the credibility of the
witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007).
[9] Miller argues that the State failed to present sufficient evidence to support his
conviction for operating a vehicle with a BAC over .15 as a Class A
misdemeanor. Miller does not challenge the evidence of intoxication presented
at trial. The sole issue he challenges is whether the State proved that he was the
driver of the vehicle at the time he was intoxicated. Miller alleges that the
evidence was not sufficient to prove he was the driver of the vehicle because
neither of the officers observed him operate a vehicle and Pompey’s testimony
was ambiguous due to evidence that she may have had a partially obstructed
view.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 4 of 6 [10] In order to convict Miller of operating a vehicle with a BAC over 0.15 as a
Class A misdemeanor, the State was required to prove beyond a reasonable
doubt that Miller operated a vehicle with a BAC of at least 0.15 grams of
alcohol per 210 liter of his breath. Ind. Code § 9-30-5-1(b)(1)(2). A conviction
may be sustained on the uncorroborated testimony of a single witness or victim.
Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied.
[11] In the present case, Pompey observed Miller drive up to a gas pump, exit out of
the driver’s door, and walk up to the pass-through window. After pumping gas,
Miller returned to the window and argued with Pompey. She then watched
him drive away from the gas station. Miller returned approximately fifteen
minutes later, and Pompey again observed him driving his vehicle. When he
again came to the pass-through window to argue with her, Pompey felt
threatened and called the police. During these instances, several lights
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MEMORANDUM DECISION Feb 17 2015, 9:54 am Pursuant to Ind. Appellate Rule 65(D), 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 Timothy J. Burns Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Appellate Division Kenneth E. Biggins Indianapolis, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Jerry Miller, February 17, 2015
Appellant-Defendant, Court of Appeals Case No. 49A02-1405-CR-302 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Carol Orbison, Senior Judge Appellee-Plaintiff. 49F19-1304-CM-24215
Kirsch, Judge.
[1] Jerry Miller was convicted after a jury trial of operating a vehicle with a blood
alcohol content (“BAC”) over 0.151 as a Class A misdemeanor. He appeals,
1 See. Ind. Code § 9-30-5-1.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 1 of 6 raising the following issue for our review: whether the State presented sufficient
evidence to support his conviction.
[2] We affirm.
Facts and Procedural History [3] On April 14, 2013, Alexis Pompey was working the night shift at a Village
Pantry in Indianapolis, Indiana. Since the store stayed open all night, but
locked its doors at 10:00 p.m., customers had to interact with the attendant
through a pass-through window. While working that night, Pompey observed
Miller drive up to a gas pump and exit from the driver’s side door. Miller came
up to the window and paid for gas. After pumping the gas, Miller returned to
the window and, appearing intoxicated, began to argue with Pompey about the
amount charged for the gas. Miller then returned to his vehicle and drove
away.
[4] About fifteen to twenty minutes later, Miller came back to the gas station.
Pompey again observed Miller driving, and he was accompanied by another
vehicle. After parking, Miller and another individual approached the window
and again argued with and cursed at Pompey. Feeling threatened, Pompey
called 911 for assistance. Miller then returned to his vehicle and sat in the
driver’s seat.
[5] Approximately five minutes later, Indianapolis Metropolitan Police
Department (“IMPD”) Officer Klinton Streeter arrived at the Village Pantry.
When he arrived, Officer Streeter parked behind Miller’s vehicle. The driver’s Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 2 of 6 door was open, and Miller was sitting halfway on the seat and halfway off the
seat with his left foot on the ground. Officer Streeter spoke with Miller and
observed that Miller had glassy, bloodshot eyes, poor manual dexterity, and
smelled of alcohol. Due to Miller’s appearance and behavior, Officer Streeter
decided to administer field sobriety tests to Miller. After administering three
tests, Officer Streeter determined that Miller was intoxicated. Officer Streeter
then administered a portable breath test, and Miller tested positive for
intoxication. Miller told Officer Streeter that he was not the driver of the
vehicle, but did not identify anyone else as the driver. Officer Streeter did not
locate any evidence that anyone else drove the vehicle.
[6] IMPD Officer Craig Wildauer arrived shortly after Officer Streeter. Miller
initially denied driving the vehicle when speaking with Officer Wildauer, but
Miller later admitted to Officer Wildauer that he was the driver. Officer
Wildauer arrested Miller and transported him to the Arrestee Processing Center
and administered a chemical test, which yielded a result of 0.20 grams of
alcohol per 210 milligrams of breath.
[7] The State charged Miller with operating while intoxicated as a Class C
misdemeanor and operating a vehicle with a BAC over 0.15 as a Class A
misdemeanor. A jury trial took place on April 4, 2014, and the jury found
Miller guilty on both counts. The trial court sentence Miller to an aggregate
365 days, all suspended. Miller now appeals.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 3 of 6 Discussion and Decision [8] Our standard of review for sufficiency claims is well-settled. When we review a
claim of sufficiency of the evidence, we do not reweigh the evidence or judge
the credibility of the witnesses. Parahams v. State, 908 N.E.2d 689, 691 (Ind. Ct.
App. 2009) (citing 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 therein 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. It is the function of the trier of fact to resolve conflicts of
testimony and to determine the weight of the evidence and the credibility of the
witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007).
[9] Miller argues that the State failed to present sufficient evidence to support his
conviction for operating a vehicle with a BAC over .15 as a Class A
misdemeanor. Miller does not challenge the evidence of intoxication presented
at trial. The sole issue he challenges is whether the State proved that he was the
driver of the vehicle at the time he was intoxicated. Miller alleges that the
evidence was not sufficient to prove he was the driver of the vehicle because
neither of the officers observed him operate a vehicle and Pompey’s testimony
was ambiguous due to evidence that she may have had a partially obstructed
view.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 4 of 6 [10] In order to convict Miller of operating a vehicle with a BAC over 0.15 as a
Class A misdemeanor, the State was required to prove beyond a reasonable
doubt that Miller operated a vehicle with a BAC of at least 0.15 grams of
alcohol per 210 liter of his breath. Ind. Code § 9-30-5-1(b)(1)(2). A conviction
may be sustained on the uncorroborated testimony of a single witness or victim.
Baltimore v. State, 878 N.E.2d 253, 258 (Ind. Ct. App. 2007), trans. denied.
[11] In the present case, Pompey observed Miller drive up to a gas pump, exit out of
the driver’s door, and walk up to the pass-through window. After pumping gas,
Miller returned to the window and argued with Pompey. She then watched
him drive away from the gas station. Miller returned approximately fifteen
minutes later, and Pompey again observed him driving his vehicle. When he
again came to the pass-through window to argue with her, Pompey felt
threatened and called the police. During these instances, several lights
illuminated the area where Miller parked, and Pompey could see him through
the windows of the store. At trial, she testified that she had no doubt that
Miller was the one driving the vehicle. Tr. at 36. Pompey’s testimony was
sufficient to support Miller’s conviction.
[12] Further, elements of offenses and identity may be established entirely by
circumstantial evidence and the logical inferences drawn therefrom. Holloway v.
State, 983 N.E.2d 1175, 1178 (Ind. Ct. App. 2013) (citing Bustamante v. State,
557 N.E.2d 1313, 1317 (Ind. 1990)). The evidence presented at trial established
that, when Officer Streeter approached the vehicle, the driver’s door was open
and Miller was seated halfway in the driver’s seat and halfway out of the seat
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 5 of 6 with his left foot on the ground with the engine off. Although Miller initially
denied being the driver of the vehicle, he later admitted to Officer Wildauer that
he had been driving. Viewing the probative evidence presented at trial and the
reasonable inferences drawn from it, we conclude that the State presented
sufficient evidence to support Miller’s conviction. Miller’s arguments amount
to a request for this court to reweigh the evidence, which we cannot do on
appeal. Parahams, 908 N.E.2d at 691.
[13] Affirmed.
Friedlander, J., and Crone, J., concur.
Court of Appeals of Indiana | Memorandum Decision 49A02-1405-CR-302 | February 17, 2015 Page 6 of 6