Henry Keith Holloway v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of Mar 12 2013, 8:32 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
DONALD J. BERGER GREGORY F. ZOELLER
South Bend, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
HENRY KEITH HOLLOWAY, )
)
Appellant-Defendant, )
)
vs. ) No. 71A05-1202-CR-58
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
The Honorable Jane Woodward Miller, Judge
Cause No. 71D01-1105-FC-89
March 12, 2013
MEMORANDUM DECISION - NOT FOR PUBLICATION
BAILEY, Judge
Case Summary
Henry Holloway (“Holloway”) was convicted after a jury trial of Operating a Motor
Vehicle After Lifetime Suspension of Driving Privileges (“Operating After Lifetime
Suspension”)1, as a Class C felony, and of Operating a Vehicle While Intoxicated2, as a Class
A misdemeanor. Holloway raises for review the single issue of whether the State presented
sufficient evidence about his operation of the vehicle to support the convictions.
We affirm.
Facts and Procedural History
While on patrol the night of May 9, 2011, at around 10:30 p.m., South Bend Police
Department (“SBPD”) Officer Tyler Donlon (“Officer Donlon”) observed a red Pontiac fail
to come to a complete stop at a stop sign on the corner of Walnut Street and Lincolnway
West. Officer Donlon followed the Pontiac in his patrol car for one or two minutes without
activating the overhead lights on his patrol car. The Pontiac pulled into a private driveway at
1238 Lincolnway West and stopped. Officer Donlon activated his red and blue emergency
lights to initiate a traffic stop but did not exit his patrol car because he observed that the
Pontiac “was still in gear,” had an “open way out the back,” and he was “unsure what [the
driver] was going to do.”
Five blocks away, Officer Andrew Nowak (“Officer Nowak”) was driving west on
Lincolnway West when he observed a red car make a turn followed immediately by the
1
Ind. Code § 9-30-10-17.
2
I.C. § 9-30-5-1(b).
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flashing of a police car’s overhead lights. Officer Nowak pulled alongside the other police
car, which was driven by Officer Donlon. After a brief conversation between the two
patrolmen during which Officer Donlon expressed interest in the red car, both officers pulled
their vehicles up behind the Pontiac.
Officer Nowak approached the driver’s side of the Pontiac while Office Donlon
approached the passenger’s side. Holloway, the only person in the vehicle, was seated in the
driver’s seat. When Officer Nowak asked for identification, Holloway said he did not have
any, but gave Officer Nowak his name and date of birth. Officer Nowak returned to his
patrol car to run Holloway’s information using the Indiana Bureau of Motor Vehicles
database, which indicated that Holloway was a habitual traffic violator. Officer Nowak
returned to the Pontiac and placed Holloway under arrest. Holloway was transported to the
police station where police administered sobriety tests and a Data Master certified breath test.
On May 11, 2011, the State charged Holloway with Operating After Lifetime
Suspension, as a Class C felony, and Operating While Intoxicated, as a Class A
misdemeanor. The State also alleged him to be a Habitual Offender3 but moved to dismiss the
allegation before the end of Holloway’s first trial. Holloway was tried before a jury on
October 3 and 4, 2011. The court declared a mistrial on October 4, 2011. On December 5
and 6, 2011, Holloway was re-tried before a jury and found guilty as charged. The trial court
imposed a sentence of four years for Operating After Lifetime Suspension which was to run
concurrently with a one year sentence for Operating While Intoxicated. Both sentences were
3
I.C. § 35-50-2-8.
3
to run consecutively to a sentence imposed from a previous conviction.
Discussion and Decision
Our standard of review for challenges to the sufficiency of the evidence is well settled:
We 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 the credibility of witnesses or reweigh 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. (quoting Jenkins v. State, 726
N.E.2d 268, 270 (Ind. 2000)). The evidence is sufficient if an inference may
reasonably be drawn from it to support the verdict. Id. (quoting Pickens v.
State, 751 N.E.2d 331, 334 (Ind. Ct. App. 2001)).
Thompson v. State, 966 N.E.2d 112, 122 (Ind. Ct. App. 2012), trans. denied.
To convict Holloway of Operating After Lifetime Suspension, the State needed to
prove beyond a reasonable doubt that Holloway operated a motor vehicle after his driving
privileges were forfeited for life. I.C. § 9-30-10-17. To convict Holloway of Operating
While Intoxicated, the State needed to prove beyond a reasonable doubt that Holloway
operated a motor vehicle with an alcohol concentration equivalent to at least fifteen-
hundredths (0.15) gram of alcohol per one hundred (100) milliliters of his blood or two
hundred ten (210) liters of the person’s breath. I.C. § 9-30-5-1. Holloway’s sole contention
is that the State failed to produce sufficient evidence that he drove the red Pontiac, thus
failing to prove either charge beyond a reasonable doubt.
To meet its burden, the State offered the testimony of Officers Donlon and Nowak.
Officer Donlon testified that he followed the red Pontiac from the time it ran the stop sign on
Walnut Street to the time it stopped in the driveway at 1238 Lincolnway West. He also
testified that during the entire time that he was behind it, the red Pontiac did not stop nor did
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anyone enter or exit the vehicle. Though unable to directly identify Holloway as the driver,
Officer Donlon testified that there was only one person in the red Pontiac; and that person
was sitting in the driver’s seat when he and Officer Nowak approached the vehicle. Officer
Nowak testified that there was only one person in the car. He identified that person as
Holloway, and that Holloway was in the driver’s seat. Officer Nowak also testified that no
one entered or exited the vehicle from the time he arrived on the scene. The officers’
combined testimony provides sufficient evidence for a reasonable trier of fact to find beyond
a reasonable doubt that Holloway drove the red Pontiac.
Conclusion
The evidence is sufficient to prove beyond a reasonable doubt that Holloway is guilty
of Operating a Motor Vehicle After Lifetime Suspension of Driving Privileges, as a Class C
felony, and of Operating a Vehicle While Intoxicated, as a Class A misdemeanor.
Affirmed.
VAIDIK, J., and BROWN, J., concur.
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