Robert Mular v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: September 4, 2014
• Docket: 49A02-1311-CR-947
• Status: Unpublished

Opinion

Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Sep 04 2014, 9:32 am 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.

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

RUTH JOHNSON GREGORY F. ZOELLER TIMOTHY J. BURNS Attorney General of Indiana Marion County Public Defender Indianapolis, Indiana BRIAN REITZ Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

ROBERT MULAR, ) ) Appellant-Defendant, ) ) vs. ) No. 49A02-1311-CR-947 ) STATE OF INDIANA, ) ) Appellee-Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable H. Patrick Murphy, Commissioner Cause No. 49F07-1304-CM-27416

September 4, 2014

MEMORANDUM DECISION - NOT FOR PUBLICATION

KIRSCH, Judge Robert Mular was convicted after a bench trial of operating a vehicle while

intoxicated1 as a Class A misdemeanor. He appeals raising the following restated issue for

our review: whether sufficient evidence was presented to support his conviction,

specifically that he was the operator of the vehicle involved.

We affirm.

FACTS AND PROCEDURAL HISTORY

On the afternoon of April 26, 2013, Craig Mitchen, who lived in Marion County,

Indiana, was working in his front yard, mulching his flower bed. At approximately 4:00

p.m., Mitchen observed a minivan enter the cul-de-sac where his house was located. The

minivan slowly drove around the cul-de-sac, stopped in front of Mitchen’s house, and

began backing up. Because the minivan was about to back into a neighbor’s mailbox,

Mitchen ran over, waving his arms and telling the driver to stop. However, the minivan

still backed into the mailbox.

Mitchen approached the driver of the minivan, who he later identified as Mular, and

asked what Mular was doing. Mular stated that he was looking for a table saw that he had

seen for sale on craigslist. Tr. at 9. Mitchen told Mular that he did not have a table saw

for sale, but went to check with a neighbor, who was also not selling a table saw. When

Mitchen was talking with Mular, the window of the minivan was open and Mular also

opened the door during the conversation. Mitchen did not observe anyone else inside of

the minivan. Mitchen noticed that Mular was “wobbling” and slurring his speech, and

1 See Ind. Code § 9-30-5-2(b).

2 Mitchen was worried that Mular had a health issue. Id. at 10. Mitchen went back to

mulching his flower beds, and Mular remained in the minivan, leaning back in the seat.

After approximately fifteen minutes, Mitchen called the police because he became

concerned that something was wrong with Mular.

Indianapolis Metropolitan Police Department Officer Ivan Ivanov arrived at the

scene at approximately 4:25 p.m. He approached the minivan, which was still parked in

the cul-de-sac, and saw Mular sitting in the driver’s seat of the vehicle. Officer Ivanov

observed that the engine of the minivan was not running, but it was still warm as if it had

recently been running. Officer Ivanov asked Mular what was going on, and Mular told the

officer he was looking for a table saw, but he was on the wrong street. The officer could

smell the odor of an alcoholic beverage on Mular’s breath and noticed that Mular had

glassy and bloodshot eyes and was slurring his speech, all of which were indications of

intoxication. Officer Ivanov asked Mular to step out of the minivan. Mular “slipped out”

of the minivan and leaned against the vehicle. Id. at 34.

Officer Ivanov noticed an empty vodka bottle inside of the minivan near where

Mular had been seated and a plastic cup containing an alcohol-soda mixture in the center

console. Officer Ivanov started to perform field sobriety tests on Mular, but Mular stated

that he could not perform a horizontal gaze test because one of his eyes was “not working

well” and that he could not perform a step and turn test or one-leg stand because “he was

unsteady on his knees.” Id. at 36. Officer Ivanov then read Mular the implied consent

warning, and Mular consented to a chemical test. Mular was transported to Butler

3 University, where a breath test was administered, which indicated that Mular’s blood

alcohol content was .17. Mular was then arrested.

The State charged Mular with Class A misdemeanor operating a vehicle while

intoxicated and Class A misdemeanor operating a vehicle with a blood alcohol content of

at least .15. On October 17, 2013, a bench trial was held, and Mular was found guilty as

charged. The trial court merged the two convictions and only entered judgment for the

conviction of operating while intoxicated as a Class A misdemeanor. The trial court then

sentenced Mular to 120 days with 20 days served in jail and the balance in community

corrections. Mular now appeals.

DISCUSSION AND DECISION

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. Cole v. State,

967 N.E.2d 1044, 1050 (Ind. Ct. App. 2012).

Mular argues that insufficient evidence was presented to support his conviction for

operating a vehicle while intoxicated. Specifically, he contends that the evidence did not

4 prove that he was the driver of the minivan. Mular asserts that his testimony at trial

established that he had been drinking at home when an acquaintance, Phil, called and asked

Mular to accompany him to see a table saw that was for sale. Mular alleges that it was Phil

who was driving the minivan when it backed into the mailbox and that Mular then scooted

over to the driver’s seat to wait for Phil after he exited the minivan. Mular contends that

this evidence was not rebutted by the State’s witnesses, and therefore, the evidence

presented was not sufficient to support his conviction.

In order to convict Mular of operating a vehicle while intoxicated as a Class A

misdemeanor, the State was required to prove beyond a reasonable doubt that Mular

operated a vehicle while in an intoxicated state in a manner that endangered a person. Ind.

Code § 9-30-5-2. Mular does not dispute that he was intoxicated at the time of the offense,

only that the evidence was insufficient to prove that he was driving the minivan.

Here, the evidence presented at trial established that Mular was the driver of the

minivan. Mitchen observed Mular driving the minivan around the cul-de-sac and saw him

back into the mailbox of Mitchen’s neighbor. Mitchen then approached the minivan and

spoke with Mular as Mular was sitting in the driver’s seat of the minivan. Mitchen did not

see anyone else in the minivan or anyone else exit the vehicle. When Officer Ivanov

arrived, Mular was in the driver’s seat of the minivan. No one else was inside the minivan,

or even at the scene, except for Mitchen. The evidence presented was sufficient to prove

that Mular was operating a vehicle while intoxicated and to support his conviction. Mular’s

arguments that someone else was actually driving the minivan is merely a request for this

5 court to reweigh the evidence and judge the credibility of the witnesses, which we cannot

do on appeal. Parahams, 908 N.E.2d at 691.

Affirmed.

MAY, J., and BAILEY, J., concur.