Kelly Millard v. State of Indiana ( 2012 )

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before FILED
any court except for the purpose of Nov 09 2012, 8:35 am
establishing the defense of res judicata,
collateral estoppel, or the law of the CLERK
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JILL M. ACKLIN GREGORY F. ZOELLER
Acklin Law Office, LLC Attorney General of Indiana
Westfield, Indiana
JAMES B. MARTIN
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
KELLY MILLARD, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1204-CR-297
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Robert Keene, Judge Pro Tempore
Cause No. 49F18-1106-FD-45554
November 9, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BROWN, Judge
Kelly Millard appeals his conviction for operating a vehicle while intoxicated as a
class D felony.1 Millard raises one issue which we revise and restate as whether the
evidence is sufficient to sustain his conviction. We affirm.
The facts most favorable to the conviction follow. On June 25, 2011, Indianapolis
Metropolitan Police Officer Ryan Irwin observed a traffic backup at the intersection of
38th Street and Commercial in Indianapolis, and when he responded to the cause of the
backup he came upon the scene of a single car accident in which the car had struck a
temporary concrete barrier, turning sideways, and blocked traffic on a single lane bridge.
Officer Irwin observed Millard, who was bleeding from his face, walking away from the
accident, which had occurred less than a minute earlier. Millard appeared confused and
unsteady on his feet, and he confirmed to Officer Irwin that he had been the driver of the
vehicle.
Officer Irwin directed Millard to sit on a guardrail for his safety due to his injuries,
but Millard was unsteady and continued to try and stand up from the guardrail. Due to
concerns regarding traffic and Millard’s injuries, Officer Irwin did not administer any
field sobriety tests. Millard was loaded into an ambulance, and Officer Irwin then
inventoried Millard’s vehicle and discovered two bottles of beer in the passenger side
floorboard, one empty and one full.
Indianapolis Police Officer Christopher Cooper arrived at the scene after Millard
had been loaded into the ambulance, and he spoke with Millard and noticed an odor of
alcohol on Millard’s breath and his person. Officer Cooper also observed that Millard’s
1
Ind. Code §§ 9-30-5-2(b) (2004); 9-30-5-3 (Supp. 2008).
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eyes were glassy and that his speech was lethargic. Based upon his training and
experience, Officer Cooper identified that Millard was intoxicated, and he asked Millard
questions about the incident. Millard confirmed again that he had been the driver of the
vehicle, but soon became “abusive” in his answers and began refusing to answer
questions. Transcript at 15. Officer Cooper was unable to administer field sobriety tests
because Millard was under medical care, and read Millard the Indiana Implied Consent
Law. Millard refused to submit to chemical testing.
On June 26, 2011, the State charged Millard with Count I, operating a vehicle
while intoxicated as a class A misdemeanor; Count II, public intoxication as a class B
misdemeanor; and Count III, operating a vehicle while intoxicated as a class D felony.
On February 16, 2012, the court held a bench trial in which evidence consistent with the
foregoing was presented. Millard’s cousin Scotty Manley testified during Millard’s case-
in-chief that Millard arrived at Manley’s residence on the morning of June 25, 2011 after
working a night shift, that during the day they worked on Millard’s vehicle for several
hours, that Manley drove Millard’s car and purchased the beers while Millard stayed at
the home, that Manley opened one of the beers and consumed some of it while the car
was running, that Manley at one point went inside to use the restroom, and that when he
returned Millard and the vehicle were gone. Manley also testified that Millard had not
been drinking alcohol that day. The court found Millard guilty as charged. On March
15, 2012, the court held a sentencing hearing, merged Counts I and II into Count III, and
sentenced Millard to 545 days with 180 days to be served on home detention and 365
days suspended to probation.
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The issue is whether the evidence is sufficient to sustain Millard’s conviction for
operating a vehicle while intoxicated. When reviewing the sufficiency of the evidence to
support a conviction, we must consider only the probative evidence and reasonable
inferences supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We
do not assess witness credibility or reweigh the evidence. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We affirm the conviction unless
“no reasonable fact-finder could find the elements of the crime proven beyond a
reasonable doubt.” Id. (quoting Jenkins v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is
not necessary that the evidence overcome every reasonable hypothesis of innocence. Id.
at 147. The evidence is sufficient if an inference may reasonably be drawn from it to
support the verdict. Id. A conviction may be based upon circumstantial evidence alone.
Fought v. State, 898 N.E.2d 447, 450 (Ind. Ct. App. 2008). Reversal is appropriate only
when reasonable persons would not be able to form inferences as to each material
element of the offense. Id.The offense of operating a vehicle while intoxicated is governed by Ind. Code § 9-
30-5-2, which provides that “a person who operates a vehicle while intoxicated commits
a Class C misdemeanor,” but “[a]n offense . . . is a Class A misdemeanor if the person
operates a vehicle in a manner that endangers a person.” Ind. Code § 9-30-5-3 provides
that “a person who violates section 1 or 2 of this chapter commits a Class D felony if . . .
the person has a previous conviction of operating while intoxicated that occurred within
the five (5) years immediately preceding the occurrence of the violation of section 1 or 2
of this chapter . . . .”
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Millard argues that the State failed to prove that he was intoxicated. “Intoxicated”
means under the influence of alcohol, a controlled substance or a combination of them
“so that there is an impaired condition of thought and action and the loss of normal
control of a person’s faculties.” Ind. Code § 9-13-2-86 (Supp. 2006). “The State need
not present separate proof of impairment of action, impairment of thought, and loss of
control of faculties to establish an individual’s intoxication.” Woodson v. State, 966
N.E.2d 135, 142 (Ind. Ct. App. 2012), trans. denied. Rather, a person’s impairment is to
be determined by considering his capability as a whole, not component by component,
such that impairment of any of these three abilities equals impairment. Id. Such
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. Id. (citing Fought, 898 N.E.2d at 451). Proof of intoxication does
not require proof of a Blood Alcohol Content level. Ballinger v. State, 717 N.E.2d 939,
943 (Ind. Ct. App. 1999); Jellison v. State, 656 N.E.2d 532, 535 (Ind. Ct. App. 1995).
Millard argues that “[t]he circumstances surrounding this OWI case are unique”
because “[n]o field sobriety, breath tests, or blood tests were done on the defendant,
despite the fact that he was hospitalized following the car accident.” Appellant’s Brief at
8. Millard argues that “to establish the intoxication element, the State was required to
prove, beyond a reasonable doubt, that [he] had consumed alcohol, which caused an
impairment,” but that here “any impairment on the part of Millard could easily be
attributable to the circumstances surrounding his car accident.” Id. Millard also argues
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that “[t]he physical evidence at the scene corroborates [his] account that his clothes were
doused with beer during the crash because Officer Irwin found an empty bottle of beer on
the passenger side floorboard,” and the beer could have “gotten onto [his] clothing during
the impact of the crash” and been the source of the “odor of alcohol coming from [him].”
Id. at 9. The State argues that Millard “struck a stationary object while operating his
vehicle, and his breath smelled of alcohol. These facts, coupled with [his] glassy eyes,
unsteady gait, lethargic speech, as well as his belligerence towards the police officers
sufficiently show that [he] was intoxicated.” Appellee’s Brief at 4.
The record reveals that Millard was involved in a single car accident in which he
struck a temporary concrete barrier, turning his car sideways and blocking traffic on a
single lane bridge. Upon coming into contact with Millard, Officer Irwin observed that
he was “unsteady on his feet” and repeatedly attempted to stand up from the guardrail
where Officer Irwin had ordered him to sit. Transcript at 4-5. Officer Irwin observed
that the car Millard had been driving contained two bottles of beer including an empty
bottle. Officer Cooper observed an odor of alcohol emanating from Millard’s breath and
his person, and also noticed that Millard’s eyes were glassy and that his speech was
lethargic. Millard became “abusive” in answering Officer Cooper’s questions and
refused to answer some questions. Id. at 15. In addition to this evidence Officer Cooper
testified that, based upon his training and experience, it was his opinion that Millard was
“under the influence of an alcoholic beverage at the time,” or intoxicated. Id. Such
testimony is sufficient to support Millard’s conviction. See Woodson, 966 N.E.2d at 142
(citing Wright v. State, 772 N.E.2d 449, 460 (Ind. Ct. App. 2002) (“With respect to the
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sufficiency of the evidence upon the element of intoxication, it is established that a non-
expert witness may offer an opinion upon intoxication, and a conviction may be sustained
upon the sole testimony of the arresting officer.”). Millard’s arguments are “little more
than a request to reweigh the evidence, which we will not do.” See id.Based upon the record, we cannot say that the inferences made by the fact finder
were unreasonable. Thus, we conclude that evidence of probative value exists from
which the court could have found Millard guilty beyond a reasonable doubt of operating a
vehicle while intoxicated as a class D felony.2 See Broderick v. State, 249 Ind. 476, 479-
480, 231 N.E.2d 526, 527-528 (1967) (holding that the jury was warranted in finding that
the defendant was intoxicated where two witnesses testified that in their opinion the
defendant was intoxicated, defendant’s car smelled of alcohol, defendant weaved from
side to side of the road, and defendant’s speech was “thick”), cert. denied, 393 U.S. 872,
89 S. Ct. 161 (1968); Fought, 898 N.E.2d at 451 (holding that the evidence was sufficient
to sustain the defendant’s conviction for public intoxication where police officers smelled
a strong odor of alcohol emanating from the interior of the vehicle and from the
defendant’s breath, the defendant was uncooperative, unsteady, slurred his speech, and
his eyes were red, watery, and bloodshot); Hall v. State, 174 Ind. App. 334, 336-337, 367
N.E.2d 1103, 1106-1107 (1977) (holding that the evidence was sufficient to sustain the
defendant’s conviction for driving while under the influence of liquor where witnesses
who saw the defendant immediately following the accident believed that she was
2
We note that Millard confines his arguments on appeal to challenging proof that he was
intoxicated. He does not challenge that he had a previous conviction of operating while intoxicated that
occurred within the five (5) years immediately preceding the instant offense.
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intoxicated, the defendant’s car smelled of alcohol, and her vehicle was “driving very
fast” and “out of control”).
For the foregoing reasons, we affirm Millard’s conviction for operating a vehicle
while intoxicated as a class D felony.
Affirmed.
FRIEDLANDER, J., and PYLE, J., concur.
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