Jocelyn Allen v. State of Indiana

Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata, Jul 12 2012, 9:21 am
collateral estoppel, or the law of the
case.
CLERK
of the supreme court,
court of appeals and
tax court
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
BARBARA J. SIMMONS GREGORY F. ZOELLER
Oldenburg, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
JOCELYN ALLEN, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1111-CR-1053
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable William Nelson, Judge
Cause No. 49F07-1109-CM-66410
July 12, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
BARNES, Judge
Case Summary
Jocelyn Allen appeals her conviction for Class A misdemeanor operating a vehicle
while intoxicated (“OWI”) in a manner that endangered a person. We affirm in part and
remand in part.
Issue
Allen raises one issue on appeal, which we restate as whether there was sufficient
evidence to support her conviction.
Facts
On the night of September 15, 2011, at approximately 10 p.m. Officer Erik
Forestal of the Indianapolis Metropolitan Police Department (“IMPD”) observed a Ford
Taurus traveling northbound on California Street without its headlights turned on.
Officer Forestal activated his emergency lights and siren to conduct a traffic stop.
Officer Forestal followed the Ford Taurus for three blocks. Officer Forestal observed the
vehicle for the entirety of the pursuit and, at no point, did the driver activate the
headlights of the vehicle. After three blocks the vehicle stopped, and Allen got out of the
car.
Allen attempted to walk away from the vehicle, but she stumbled. Officer Forestal
observed that Allen had bloodshot eyes and slurred speech, and he detected the odor of
alcohol. When Officer Forestal asked Allen for her identification, she became hostile and
began to yell. Allen ignored Officer Forestal’s repeated requests to remain calm. When
Officer Forestal frisked Allen, he found a tequila bottle in her pocket.
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Additional IMPD officers arrived at the scene of the traffic stop and found Allen
leaning on her vehicle for support. Alcoholic beverage containers were in the front seat
of Allen’s vehicle. She failed three field sobriety tests. When a chemical breath test was
administered, she tested 0.11.
On September 16, 2011, the State charged Allen with Count I, OWI in a manner
that endangered a person as a Class A misdemeanor, and Count II, OWI as a Class C
misdemeanor. Allen was found guilty of both counts after a bench trial. Trial court
entered judgment for Counts I and II and then merged Count II with Count I. The trial
court failed to vacate the original conviction for Count II. Allen now appeals.
Analysis
Allen argues that there is insufficient evidence to establish that she operated a
vehicle in a manner that endangered a person. When reviewing the sufficiency of
evidence to support a conviction, we consider only the probative evidence and reasonable
inferences that support the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). “It
is the fact-finder’s role, not that of appellate courts, to assess witness credibility and
weigh the evidence to determine whether it is sufficient to support a conviction.” Id.When conflicting evidence is present, we consider it in a light most favorable to the
conviction. Id. If there is substantial evidence such that a reasonable trier of fact could
find that the defendant was guilty beyond a reasonable doubt, we will affirm. Dorsett v.
State, 921 N.E.2d 529, 531 (Ind. Ct. App. 2010).
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In order to convict Allen of Class A misdemeanor OWI, the State was required to
prove that she operated a vehicle while intoxicated in a manner that endangered a person.
See Indiana Code § 9-30-5-2(b). “Intoxicated” is defined as being under the influence of
alcohol or another substance “so that there is an impaired condition of thought and action
and the loss of normal control of a person’s faculties.” I.C. § 9-13-2-86. “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.” Vanderlinden v. State, 918 N.E.2d 642, 644 (Ind. Ct. App. 2009), trans.
denied.
There was sufficient evidence to prove that Allen was intoxicated when she was
questioned by Officer Forestal and the other officers. Allen satisfied all of the factors
indicating impairment. She had impaired attention and reflexes, bloodshot eyes, unsteady
balance, and slurred speech. She failed three field sobriety tests, and Officer Forestal
noticed the odor of alcoholic beverages on her breath. A chemical breath test revealed
that Allen’s blood alcohol content was 0.11.
Allen’s main argument is that there was insufficient evidence to prove that she
endangered herself or others by her operation of the vehicle. The endangerment element
is satisfied if the evidence establishes that the defendant was operating his or her vehicle
in a manner that endangered “any person, including the public, the police, or the
defendant.” Vanderlinden, 918 N.E.2d at 644; see Outlaw v. State, 918 N.E.2d 379 (Ind.
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Ct. App. 2009) (finding that more than proof of intoxication is required to evidence
endangerment and that a missing license plate light was insufficient to evidence
endangerment), opinion adopted by Outlaw v. State, 929 N.E.2d 196 (Ind. 2010). Allen
claims that her actions did not pose a danger to anyone at the time because there was no
one else on the street. This is an incorrect interpretation of the endangerment clause. The
State need not prove that any other person other than the defendant was in the path of the
vehicle or in the same area in order to obtain a conviction. Staley v. State, 895 N.E.2d
1245, 1251 (Ind. Ct. App. 2008) (citing State v. Krohn, 521 N.E.2d 374, 377 (Ind. Ct.
App. 1988)), trans. denied.
The State presented sufficient evidence that Allen’s operation of her vehicle
endangered others or herself. Indiana Code Section 9-21-7-2 provides that a driver is
required to display lighted headlamps at all times between sunset and sunrise. Allen was
operating her vehicle illegally by not activating her headlights at 10 p.m. This illegal
operation was unsafe and endangered Allen, other members of the public who might be
in the area, and police officers who might be conducting traffic stops. See Staley, 895
N.E.2d at 1251 (finding that operating a vehicle without headlamps endangered the
defendant and those around him).
However, we note, as the State noted, that the trial court entered judgment for both
convictions and then merged the conviction for Class C misdemeanor operating while
intoxicated with Class A misdemeanor operating while intoxicated as a Class A
misdemeanor. As recommended by the state, we will remand to the trial court for the
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sole purpose of vacating the conviction for Class C misdemeanor operating while
intoxicated. See Eberle v. State, 942 N.E.2d 848, 862 (Ind. Ct. App. 2011), trans. denied
(finding double jeopardy in a situation in which the trial court failed to vacate conviction
for Class C misdemeanor after it had been merged with Class A misdemeanor of which
defendant was later convicted).
Conclusion
There is sufficient evidence to support Allen’s conviction for Class A
misdemeanor OWI with endangerment. We affirm, and we remand to the trial court for
the sole purpose of vacating the conviction for Class C misdemeanor OWI.
Affirmed in part, and remanded in part.
FRIEDLANDER, J., and MAY, J., concur.
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