Kimberly Bachmann v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any
Jul 03 2019, 7:55 am
court except for the purpose of establishing
the defense of res judicata, collateral CLERK
Indiana Supreme Court
estoppel, or the law of the case. Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
John L. Tompkins Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Lauren A. Jacobsen
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kimberly Bachmann, July 3, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2637
v. Appeal from the Parke Circuit
Court
State of Indiana, The Honorable Sam A. Swaim,
Appellee-Plaintiff. Judge
Trial Court Cause No.
61C01-1802-CM-46
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Kimberly Bachmann (Bachmann), appeals her
conviction for operating a vehicle while intoxicated, a Class C misdemeanor,
Ind. Code § 9-30-5-2(a).
[2] We affirm.
ISSUE
[3] Bachmann presents one issue on appeal: Whether the State produced sufficient
evidence to prove beyond a reasonable doubt that she operated a vehicle while
intoxicated.
FACTS AND PROCEDURAL HISTORY
[4] On February 21, 2018, Deputy Shawn Clover (Deputy Clover) of the Parke
County Sheriff’s Department responded to a call of an accident in the 700 block
of Centre Parkway in Parke County. When he arrived, Deputy Clover
observed an SUV that had been driven off the roadway and over a rock. The
SUV was stuck on the rock and was blocking northbound traffic. Deputy
Clover opened the door of the SUV to check for passengers and noted that the
interior of the SUV was still warm. No one was inside the SUV.
[5] Deputy Clover learned that the SUV was registered to Bachmann and that her
address was just a few houses away from where the SUV had been left on the
rock. Deputy Clover knocked on the door of Bachmann’s residence, and she
answered. Bachmann was hunched over and used the door jamb to support
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herself as she spoke to Deputy Clover. Bachmann emitted an odor of alcoholic
beverage, and her speech was slurred. Deputy Clover asked Bachmann if she
knew why he was there, and she confirmed that she did. Deputy Clover asked
her how much she had had to drink that night, and she responded, “A lot. I’m
just leaving the car where it is until I can, like, make it right.” (Exh. 1 at 1:12-
:19). When Deputy Clover informed her that she had left the scene of an
accident, Bachmann responded, “I didn’t leave the scene of an accident. I just
couldn’t get the car off.” (Exh. 1 at 1:28-:31).
[6] Deputy Clover arrested Bachmann for leaving the scene of an accident and
operating her vehicle while intoxicated. Bachmann made unsolicited
comments such as “I know I’m drunk. I drank too much, I know,” and “I’m
sorry that I messed up,” and, while Deputy Clover prepared to administer a
portable breathalyzer test, “I’m drunk, you don’t, you don’t have to do that.”
(Exh. 3 at :04-:10; :31-:33; :54-:56). Bachmann also told Deputy Clover after
receiving her Miranda advisements that “I’m fine, I’m just a piece of shit that
makes bad decisions” and “I’m gonna lose everything now because I made bad
choices.” (Exh. 2 at 2:18-:26).
[7] On February 22, 2018, the State filed an Information, charging Bachmann with
operating a vehicle while intoxicated, a Class C misdemeanor, and with leaving
the scene of an accident, a Class B misdemeanor. On October 5, 2018, the trial
court convened Bachmann’s bench trial. Before the start of trial, the State
dismissed the leaving the scene of an accident charge. Deputy Clover testified
that, in light of his training and experience, he believed that Bachmann was
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intoxicated when he observed her at her home. The trial court found Bachman
guilty of operating a vehicle while intoxicated and proceeded to sentencing.
The trial court sentenced Bachmann to sixty days in the Parke County Jail,
suspended to time-served, followed by 365 days of probation.
DISCUSSION AND DECISION
[8] Bachmann challenges the evidence supporting her conviction. It is well-
established that 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 fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Id.
[9] To convict Bachmann of the offense of operating a vehicle while intoxicated,
the State was required to prove that (1) Bachmann; (2) operated the SUV; (3)
while she was intoxicated. See I.C. § 9-30-5-2(a). Intoxication is defined in
relevant part as being under the influence of alcohol “so that there is an
impaired condition of thought and action and loss of normal control of a
person’s faculties.” I.C. § 9-13-2-86. 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).
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[10] The evidence presented at trial was that Bachmann’s SUV was abandoned
where it had been driven onto a rock not far from her home. Deputy Clover
opened the door of the SUV to investigate and noted that its interior was still
warm. After Deputy Clover arrived at her home, Bachmann exhibited several
indicia of intoxication—her speech was slurred, she was unsteady on her feet
and braced herself using the door jamb, and she smelled of alcohol. In Deputy
Clover’s opinion, Bachmann was intoxicated. Deputy Clover’s observations of
Bachmann’s slurred speech, unsteadiness, and the odor of alcohol about her
contributed to a reasonable inference that she was intoxicated. See id.
Bachmann also admitted that she had been drinking “a lot” and that she had
driven the SUV onto the rock. (Exh. 1 at 1:12-:19). Bachmann’s statements
regarding her “bad decisions” and “bad choices” were manifestations of her
knowledge of her guilt which additionally supported her conviction. (Exh. 2 at
2:18-:26). The totality of this evidence supported the trial court’s reasonable
conclusion that Bachmann was intoxicated when she operated her vehicle. See
Woodson v. State, 966 N.E.2d 135, 143 (Ind. Ct. App. 2012) (finding sufficient
evidence of intoxication where Woodson smelled of alcohol, his speech was
slurred, he had an abrasive attitude, he admitted to consuming alcohol, and
was, in the opinion of the investigating officer, intoxicated).
[11] Bachmann contends that the State failed to prove that she was intoxicated at
the time that she operated the SUV because it was not established with certainty
when the SUV was last driven or how “the observed signs of impairment
change over time[.]” (Appellant’s Br. p. 10). However, Bachmann does not
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address the evidence of her admissions present in the record. In addition,
“[c]ircumstantial 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). Deputy Clover noted that the interior was still warm on that February
day when he opened the door of the SUV, which supported an inference that
the vehicle had not been marooned on the rock for a long period of time. When
Deputy Clover observed Bachmann shortly thereafter exhibiting indicia of
intoxication, she admitted that she had not consumed any alcohol after she
arrived home, which also supported an inference that she was intoxicated at the
time she operated her SUV. Therefore, contrary to Bachmann’s assertions on
appeal, there was substantial, probative evidence admitted at trial supporting
each element of the offense. See Drane, 867 N.E.2d at 146.
CONCLUSION
[12] Based on the foregoing, we conclude that the State proved beyond a reasonable
doubt that Bachmann operated her vehicle while she was intoxicated.
[13] Affirmed.
[14] Bailey, J. and Pyle, J. concur
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