Sam M. McFarland v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: April 20, 2020
• Docket: 19A-CR-2585
• 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 Apr 20 2020, 9:47 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

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Valerie K. Boots Curtis T. Hill, Jr. Talisha Griffin Attorney General of Indiana Marion County Public Defender Agency Tina L. Mann – Appellate Division Deputy Attorney General Indianapolis, Indiana Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Sam M. McFarland, April 20, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2585 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Mark F. Renner, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G18-1808-F6-25985

Mathias, Judge.

[1] Following a bench trial in Marion Superior Court, Sam M. McFarland was

convicted of Level 6 felony operating a vehicle while intoxicated (“OWI”) and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 1 of 9 Class A misdemeanor resisting law enforcement. McFarland appeals and

claims that the State failed to present evidence sufficient to support his

conviction for Level 6 felony OWI.

[2] We affirm.

Facts and Procedural History [3] In the wee hours of July 28, 2018, Commander Jerry Leary (“Commander

Leary”) of the Indianapolis Metropolitan Police Department (“IMPD”) was in

his patrol car in downtown Indianapolis working as a “DUI officer.” Tr. p. 5.

Commander Leary saw a maroon Dodge Ram pickup truck traveling south on

Pennsylvania Street make a sudden lane change, but the driver’s-side tires

remained on the left side of the lane divider. This caught Commander Leary’s

attention, and he began to follow the truck.

[4] The pickup truck continued south and reached where Pennsylvania Street

merges into Madison Avenue and goes under a railroad overpass. At the

overpass, the street lanes are separated by large concrete abutments. The driver

of the pickup truck, later identified as McFarland, failed to keep the vehicle in

one lane, crossing the white line that separated the lanes. The driver also slowed

down, braked, released the brakes, then braked again as he approached the

abutments. McFarland almost ran into an abutment but swerved into the

appropriate lane and drove under the overpass.

[5] Commander Leary activated the emergency lights in his patrol car to initiate a

traffic stop. McFarland continued to drive for approximately two and one-half Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 2 of 9 blocks before pulling over to the side of the street. Commander Leary

approached the driver’s side of the vehicle and asked McFarland for his driver’s

license. McFarland stated, “[L]ook man. This is going to get me in a lot of

trouble. Can I just – can you just let me walk home, you know, can I park my

truck? Can I get somebody to come pick me up?” Tr. p. 15. Commander Leary

responded, “Let’s just get your driver license and if things go [the] right way,

then of course you can go home.” Id. As McFarland searched for his

identification, still mumbling that he was going to be in trouble, Commander

Leary detected the odor of alcohol coming from McFarland. He also saw that

McFarland’s eyes were glassy and bloodshot and that McFarland’s speech was

slurred. Eventually, McFarland produced an Indiana identification card instead

of a driver’s license. Commander Leary ran McFarland’s information through

the computer in his patrol car and learned that McFarland’s driver’s license was

suspended.

[6] Commander Leary returned to the truck, which was still running. McFarland

reached up to grab the gear shift and asked if he could just go home. Leary told

McFarland that he could not do that, and eventually reached into the truck

himself to turn off the engine and remove the keys from the ignition. He also

called for a backup officer.

[7] When the backup officer arrived, Commander Leary informed her that he was

going to conduct field sobriety tests on McFarland. But when he looked back at

the truck, McFarland had exited the vehicle and was standing on the sidewalk.

Commander Leary reminded McFarland that he still had his identification card

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 3 of 9 and warned him not to flee. But when Commander Leary told McFarland that

he was going to be placed under arrest, McFarland took off on foot, running

south on Madison Avenue. McFarland continued to flee with the officers

running after him. The officers eventually lost track of McFarland and set up a

perimeter and called in K9 officers for assistance. Still, McFarland successfully,

if only temporarily, eluded the police. The police had McFarland’s truck towed

to an impound lot.

[8] The following day, McFarland reported that his truck had been stolen. IMPD

Officer Eric Kenney (“Officer Kenney”) went to McFarland’s home in response

to the stolen vehicle report. Officer Kenney explained to McFarland that his

truck had been towed and was in the impound lot. Officer Kenney did not

arrest McFarland at that time.

[9] On August 8, 2018, the State charged McFarland with Class A misdemeanor

resisting law enforcement and Class A misdemeanor OWI endangering a

person. The State also alleged that McFarland had a prior conviction for OWI,

elevating the current offense to a Level 6 felony. After a bench trial held on

August 28, 2019, the trial court found McFarland guilty as charged. The court

also found that McFarland had a prior conviction for OWI and entered

judgment on the OWI charge as a Level 6 felony. McFarland now appeals.

Standard of Review [10] Upon review of a challenge to the sufficiency of the evidence to support a

criminal conviction, we respect the fact-finder’s exclusive province to weigh

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 4 of 9 conflicting evidence. Miller v. State, 106 N.E.3d 1067, 1073 (Ind. Ct. App. 2018)

(citing McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)), trans. denied. We

therefore neither reweigh the evidence nor judge the credibility of the witnesses.

Id. Instead, we consider only the probative evidence and reasonable inferences

supporting the judgment. Id.

[11] McFarland argues that the evidence was insufficient to support his convictions

because the evidence supported a reasonable theory of innocence. This,

however, is not the proper standard of review. To be sure, if the evidence

establishing the actus reus of an offense is entirely circumstantial, the trial court

must instruct the jury that: “in determining whether the guilt of the accused is

proven beyond a reasonable doubt, you should require that the proof be so

conclusive and sure as to exclude every reasonable theory of innocence.”

Hampton v. State, 961 N.E.2d 480, 491 (Ind. 2012).

[12] But our supreme court has long held that this “reasonable theory of innocence”

standard is “not applicable to appellate review for sufficiency of evidence.” Ogle

v. State, 698 N.E.2d 1146, 1149 (Ind. 1998) (emphasis added); see also Myers v.

State, 532 N.E.2d 1158, 1159 (Ind. 1989) (“[E]xclusion of every reasonable

hypothesis of innocence is not the proper appellate standard of review in

sufficiency matters[.]”). Instead, “[a]n appellate claim of insufficient evidence

will prevail if, considering the probative evidence and reasonable inferences that

support the judgment, and without weighing evidence or assessing witness

credibility, we conclude that no reasonable trier of fact could find the defendant

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 5 of 9 guilty beyond a reasonable doubt.” Ogle, 698 N.E.2d at 1149. It is with this

deferential standard that we review McFarland’s claims.

Discussion and Decision [13] McFarland challenges the sufficiency of the evidence supporting his conviction

for Level 6 felony OWI.1 The statute defining this offense provides:

(a) Except as provided in subsection (b), a person who operates a vehicle while intoxicated commits a Class C misdemeanor.

(b) An offense described in subsection (a) is a Class A misdemeanor if the person operates a vehicle in a manner that endangers a person.

Ind. Code § 9-30-5-2. Further, “a person who violates section 1 or 2 of [Indiana

Code chapter 9-30-5] commits a Level 6 felony if . . . the person has a previous

conviction of operating while intoxicated that occurred within the seven (7)

years immediately preceding the occurrence of the violation of section 1 or 2 of

this chapter.” Ind. Code § 9-30-5-3

[14] Thus, to prove that McFarland committed Level 6 felony OWI as charged, the

State was required to establish that he operated a vehicle while intoxicated, that

his operation endangered a person, and that he had a prior conviction for OWI

within the seven years prior to his commission of the instant offense.

McFarland does not deny that he has a prior conviction for OWI within seven

1 McFarland does not challenge the sufficiency of the evidence supporting his conviction for resisting law enforcement.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 6 of 9 years of the instant offense. But he claims that the State failed to prove that he

was intoxicated or that he endangered a person.

[15] With regard to the requirement of intoxication, Indiana Code section 9-13-2-86

defines “intoxicated” as “under the influence of . . . alcohol . . . so that there is

an impaired condition of thought and action and the loss of normal control of a

person’s faculties.” (emphasis added). In turn, “impairment” can be established

by evidence of:

(1) the consumption of a significant amount of alcohol; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of alcohol on the breath; (5) unsteady balance; (6) failure of field sobriety tests; and (7) slurred speech.

Naas v. State, 993 N.E.2d 1151, 1153 (Ind. Ct. App. 2013) (citing Vanderlinden v.

State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans. denied).

[16] In the present case, the State presented evidence that McFarland was driving

erratically. When Commander Leary pulled the truck over and approached the

vehicle, McFarland smelled of alcohol, had glassy, bloodshot eyes and slurred

speech, and did not heed the officer’s instructions. This is sufficient to establish

that McFarland was intoxicated. See id. (holding that evidence was sufficient to

prove that defendant was intoxicated where he had “red watery eyes, slurred

speech, unsteady balance and had the odor of an alcoholic beverage upon his

person,” and there was an empty liquor bottle in the vehicle); Staley v. State, 895

N.E.2d 1245, 1251 (Ind. Ct. App. 2008) (holding that evidence was sufficient to

prove that defendant was intoxicated where defendant smelled strongly of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 7 of 9 alcohol and had bloodshot eyes, slurred speech, and difficulty with

coordination and balance), trans. denied.

[17] McFarland’s argument that there were innocent explanations for his

appearance and conduct—that he was driving erratically because of the poor

road conditions and bad lighting, and that his eyes were bloodshot because of

allergies or lack of sleep—are nothing more than a request that we reweigh the

evidence and come to a conclusion other than that reached by the trial court,

which we will not do. Considering the evidence favorable to the trial court’s

judgment, and the reasonable inferences that can be drawn from this evidence,

we conclude that the State presented sufficient evidence to establish that

McFarland was intoxicated.

[18] We reach a similar conclusion regarding McFarland’s argument that there was

no evidence that his driving while intoxicated endangered a person. We have

explained before that:

The element of endangerment can be established by evidence showing that the defendant’s condition or operating manner could have endangered any person, including the public, the police, or the defendant. 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.

Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009) (citing Staley, 895

N.E.2d at 1249), opinion adopted, 929 N.E.2d 196 (Ind. 2010).

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 8 of 9 [19] Here, there was evidence that McFarland drove erratically and failed to keep

his vehicle in one lane. As he approached the overpass and concrete abutments,

he slowed down, braked, released the brake, then braked again. McFarland

avoided hitting an abutment only by swerving back into a lane. From this

evidence, the trial court could reasonably conclude that McFarland operated his

vehicle in a manner that could have endangered himself or another driver. See

Staley, 895 N.E.2d at 1251 (holding that evidence was sufficient to prove that

defendant’s drunk driving endangered a person where the arresting officer

observed the defendant drive unsafely by speeding and driving with his

headlights off). McFarland’s arguments to the contrary are nothing more than a

request that we reweigh the evidence

Conclusion [20] The State presented evidence sufficient to support McFarland’s conviction for

Level 6 felony OWI endangering a person. Accordingly, we affirm the

judgment of the trial court.

[21] Affirmed.

Riley, J., and Tavitas, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2585 | April 20, 2020 Page 9 of 9