Sam M. McFarland v. State of Indiana (mem. dec.) ( 2020 )

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
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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
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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
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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
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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
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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.
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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
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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).
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[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.
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