Steven Glenn Connors v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: May 18, 2020
• Docket: 19A-CR-2846
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be May 18 2020, 11:25 am regarded as precedent or cited before any court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Scott H. Duerring Marjorie Lawyer-Smith South Bend, Indiana Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Steven Glenn Connors, May 18, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2846 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Julie P. Verheye, Magistrate Trial Court Cause No. 71D05-1908-CM-2950

Kirsch, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 1 of 9 [1] Steven Glenn Connors (“Connors”) appeals his conviction for operating a

vehicle while intoxicated1 as a Class C misdemeanor. Connors raises one issue,

which we revise and restate as whether the evidence was sufficient to support

his conviction.

[2] We affirm.

Facts and Procedural History [3] On August 16, 2019, Officer Anthony VanOverberghe (“Officer

VanOverberghe”) responded to an accident at “a little after four o’clock” in the

afternoon at the intersection of Huron Street and Crumstown Trail in St. Joseph

County involving Connors and another driver. Tr. Vol. II at 19-20, 27. Officer

VanOverberghe responded to the call “probably within 5, 10 minutes” of

receiving the call, although he could not recall the precise time that he had

received the call. Id. at 27. When he arrived at the scene of the accident,

medics were with the other driver. Id. at 20. Officer VanOverberghe was told

there were no serious injuries involving the other driver, and he proceeded to

Connors’s vehicle. Id. Connors was leaning against his vehicle, and Officer

VanOverberghe could “smell the odor of alcohol” on Connors. Id. at 21.

Connors complied with Officer VanOverberghe’s request to step away from his

vehicle, and Officer VanOverberghe noted that Connors “staggered and

eventually backed up to the car again” to lean on the vehicle. Id. at 30. Officer

1 See Ind. Code § 9-30-5-2.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 2 of 9 VanOverberghe then administered three field sobriety tests to Connors: the

horizontal gaze nystagmus test; the walk-and-turn test; and the one-legged

stance test. Id. at 21-23. Connors failed each test and was taken into custody.

Id. at 24. Connors was unable to complete a portable breath test and refused a

chemical test, so Officer VanOverberghe applied for a warrant for a blood draw

and transported Connors to the hospital to conduct the blood draw. Id. at 24-

26. At the hospital, Connors also received medical treatment for his ribs, which

were injured in the accident. Id. at 31, 66. Connors’s blood was drawn at the

hospital that same day at 9:15 p.m. and sent to the Indiana State Department of

Toxicology, which later showed that Connors’s blood alcohol content was

0.114. Id. at 35, 53-54; State’s Exs. 1, 5.

[4] On August 19, 2019, the State charged Connors with operating a vehicle while

intoxicated as a Class C misdemeanor. Appellant’s Conf. App. Vol. II at 2. On

November 7, 2019, as the bench trial began, the State moved to add a second

count, operating a vehicle with a blood alcohol content of at least .08 as a Class

C misdemeanor. Tr. Vol. II at 15-16. The trial court granted the State’s motion

over Connors’s objection.2 Id. at 16-17. Before the conclusion of the trial,

Connors moved to dismiss the charges, arguing there was no evidence

presented that he operated the vehicle while he was intoxicated. Id. at 58. The

trial court denied Connors’s motion to dismiss. Id. at 61. Connors then

2 The trial court’s chronological case summary shows this offense was charged under Ind. Code § 9-30-5-1. Appellant’s Conf. App. Vol. 2 at 27.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 3 of 9 testified in his own defense, providing his account of the accident and timing of

his alcohol consumption in relation to his operation of his vehicle:

A. A girl ran a stop sign, I tried to avoid her, she blasted the side of my car, spun it. All my airbags deployed, I got knocked out. I woke up, some girls or ladies ran up and asked if I was okay. I remember pushing like a bullet-proof vest from the driver’s window to get out of my vehicle. And I was dazed and confused. And there was a party started up the driveway and I walked up to the driveway. And I’ve been incarcerated ever since or I would go to that driveway and show you. And everybody --

Q. So when did you --

A. (Continuing) -- was asking me for a ride out of there. And I was drinking with them.

Q. Did you -- let me ask you a question. When did you encounter the police, was it after that accident?

A. Yeah, it was 20, 30 minutes later. They showed up with the big van and I was still up in the driveway. I was still at the end of the driveway by the house. I knew everybody there.

Id. at 63-64. Connors added that after the accident, he was “dazed, like

dizzy[,]” but he “went up [the driveway] and they had vodka there, and I did an

orange juice and vodka, and I slammed that, and then a Budweiser. And I

went back down, and then [Officer VanOverberghe] was there.” Id. at 67.

When asked if he disputed that he consumed alcohol, he replied “No. I had

alcohol. I never said I didn’t. But it was after the girl hit me.” Id.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 4 of 9 [5] In response to Connors’s testimony concerning the timeline of his alcohol

consumption, Officer VanOverberghe testified:

Q. Okay. When you spoke with [Connors] did he at any point indicate he had been drinking alcohol after the accident?

A. Yeah, he told me he had a couple drinks.

Q. Did he indicate those drinks were after the accident?

A. After the accident? No. I asked him if he had been drinking and he said, “Yes.”

Q. So at no point were you told that there were drinks -- that [Connors] drank alcohol after the accident?

A. I was not told that, no.

Id. at 72.

[6] At the conclusion of the trial, the trial court stated “I just find your testimony a

little bit in -- incredible that you were feeling that dazed and confused and that

your reaction to that is to slam down some alcohol. I just don’t buy that.” Id.

at 79-80. The trial court found Connors guilty of Count I and Count II, entered

a judgment of conviction on Count I alone, and sentenced Connors to sixty

days executed with sixty days credit for time served. Id. at 82; Appellant’s Conf.

App. Vol. II at 29. Connors now appeals.

Discussion and Decision [7] Connors contends that the evidence was insufficient to support his conviction

for operating a vehicle while intoxicated. Connors maintains that Officer

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 5 of 9 VanOverberghe did not observe him driving a vehicle, that there is no evidence

he consumed alcohol before the accident, and cites Flanagan v. State, 832

N.E.2d 1139 (Ind. Ct. App. 2005), in support of his position.3 The State

counters that the evidence presented was sufficient to support Connors’s

conviction.

[8] When we review the sufficiency of the evidence to support a conviction, we

consider only the probative evidence and reasonable inferences supporting the

verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not our role as an

appellate court to assess witness credibility or to weigh the evidence. Id. We

will affirm the conviction unless no reasonable factfinder could find the

elements of the crime proven beyond a reasonable doubt. Id. The evidence

need not overcome every reasonable hypothesis of innocence. Id. Reversal is

appropriate only when reasonable persons would be unable to form inferences

as to each material element of the offense. McCray v. State, 850 N.E.2d 998,

1000 (Ind. Ct. App. 2006), trans. denied.

[9] Indiana Code section 9-30-5-2(a) provides, in pertinent part, that “a person who

operates a vehicle while intoxicated commits a Class C misdemeanor .” To

sustain a conviction under subsection (a), the State must prove beyond a

reasonable doubt that (1) the accused; (2) operated; (3) a vehicle; (4) while; (5)

3 To the extent that Connors challenges the sufficiency of the evidence for the trial court’s finding him guilty of Count II, we note that no judgment of conviction was entered for Count II. Thus, we do not address the evidence sustaining Count II.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 6 of 9 intoxicated. Indiana Code section 9-13-2-86, in part, 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.”

Impairment may be established through evidence of the following: “(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; and (6) slurred speech.” Wilkinson v. State, 70 N.E.3d 392,

400 (Ind. Ct. App. 2017). “Circumstantial evidence is sufficient to prove that

the defendant operated the vehicle while intoxicated.” Jellison v. State, 656

N.E.2d 532, 535 (Ind. Ct. App. 1995).

[10] Connors does not dispute that he consumed alcohol on the day of the accident

or that he was driving the vehicle when the accident happened. Rather, he

makes a temporal argument, and in support directs us to Flanagan v. State, 832

N.E.2d 1139 (Ind. Ct. App. 2005). In Flanagan, the defendant and his

passenger were traveling from Allen County when their vehicle broke down.

832 N.E.2d at 1140. Sometime after 4:00 p.m. on that day, a sheriff’s deputy

observed a disabled vehicle by the side of the road with two men, later

identified as the defendant and his passenger, standing near the rear of the

vehicle. Id. The deputy, who was transporting a prisoner, was unable to stop

for the disabled vehicle but returned later. Id. By this time, the defendant and

his passenger had started to walk to a local convenience store, and the deputy,

upon seeing them, offered them a ride. Id. Once inside the car, the deputy

detected the odor of alcohol and observed that the defendant had red and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 7 of 9 watery eyes and that his speech was slurred. Id. A certified blood test revealed

that the defendant’s blood alcohol content was .22., and he was convicted of

OWI and public intoxication. Id. at 1140-41.

[11] The defendant appealed his OWI conviction, contending that, while he

admitted to driving and to drinking, the State failed to prove the temporal

element that he was driving while intoxicated. Noting that the deputy did not

know how long the car had been disabled before he encountered it at 4:00 p.m.,

that there were empty beer cans on the floor of the car, and that there was no

evidence as to whether the defendant consumed the alcohol before he drove or

after the car broke down, our court reversed the conviction.

[12] This case is distinguishable from Flanagan. In Flanagan, the defendant’s car was

broken down beside the road when the police officer came upon it. There was

no evidence, circumstantial or otherwise, that tended to indicate when the

defendant drove the vehicle relative to the time he was discovered to be

intoxicated. Here, in contrast, Officer VanOverberghe arrived at the scene of a

reported accident at around 4:00 p.m. and “within 5, 10 minutes” after

receiving the call, and Connors acknowledged that he was driving the vehicle at

the time of the accident. Tr. Vol. II at 27, 63. While Officer VanOverberghe did

not personally observe Connors driving the vehicle, when he arrived on the

scene he found Connors leaning against his vehicle and could “smell the odor

of alcohol” on Connors, although there was no evidence that alcohol containers

were found in Connors’s vehicle. Id. at 21, 31. Officer VanOverberghe also

noted that when he asked Connors to step away from the vehicle Connors

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 8 of 9 “staggered[,]” “backed up to the car[,]” and “leaned on it.” Id. at 30. Connors

then failed each field sobriety test administered to him, admitted to consuming

alcohol on the day of the accident, and, shortly after the accident, did not tell

Officer VanOverberghe that his alcohol consumption occurred after the

accident. Id. at 21-23, 64, 72. The relatively short time span that elapsed

between the accident and the arrival of Officer VanOverberghe is unlike

Flanagan where the responding officer had no sense of the length of time the

vehicle had been disabled. Thus, the evidence in this case permits a reasonable

trier of fact to infer that Connors’s operation of a vehicle and his intoxicated

condition both occurred within a relatively short time period. Connors’s

requests for us to credit his version of the events, in which he testified that his

alcohol consumption occurred after the accident and before the arrival of

Officer VanOverberghe to the scene of the accident, is a request to make a

credibility determination and to reweigh the evidence, which we cannot do. See

Drane, 867 N.E.2d at 146.

[13] Based on the evidence and our standard of review, we conclude that sufficient

evidence supported Connors’s conviction.

[14] Affirmed.

Najam, J., and Brown, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2846 | May 18, 2020 Page 9 of 9