Clark v. State

• Citation: 611 N.E.2d 181
• Decision Date: 30 March 1993
• Docket Number: No. 49A05-9210-CR-361,49A05-9210-CR-361
• Parties: Kevin CLARK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

Page 181

611 N.E.2d 181

Kevin CLARK, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A05-9210-CR-361.

Court of Appeals of Indiana Fifth District.

March 30, 1993.

Transfer Denied May 21, 1993

Kathleen Cord, Indianapolis, for appellant-defendant.

Linley E. Pearson, Atty. Gen., Preston W. Black, Deputy Atty. Gen., Office of Attorney General, Indianapolis, for appellee-plaintiff.

BARTEAU, Judge.

Kevin Clark appeals his conviction of operating a vehicle while intoxicated. The sole issue on appeal is whether there is sufficient evidence that Wilson "operated" a vehicle. We conclude that the evidence is not sufficient and reverse.

FACTS

At approximately 3:30 in the morning, Marion County Sheriff's Deputy Kevin Newman was dispatched to investigate a man sleeping in a car at the Port O' Call apartment complex. When Deputy Newman arrived, he observed a sleeping Clark sitting in the driver's seat and leaning toward the passenger door. The engine was running, the car lights were on, and the transmission was in "park." The car was sitting in a parking spot with the front end of the car in the roadway going through the apartment complex. After several attempts, Deputy Newman was able to rouse Clark.

DISCUSSION

To sustain a conviction for operating while intoxicated, it is not sufficient for the State to show that the defendant merely started the engine. Mordacq v. State (1992), Ind.App., 585 N.E.2d 22, 24. There must be some evidence to show the defendant operated the vehicle. Id. Where the defendant has been found asleep with the engine running and the car is parked in a parking lot, this court has held that the evidence is not sufficient to show the defendant has operated the vehicle. See Id.; Corl v. State (1989), Ind.App., 544 N.E.2d 211; Hiegel v. State (1989), Ind.App., 538 N.E.2d 265, trans. denied. To the contrary, where the defendant has been found asleep with the engine running and the car is sitting in a traffic lane or other travel portion of the roadway, this court has held that the evidence is sufficient to infer the defendant has operated the vehicle. See Traxler v. State (1989), Ind.App., 538 N.E.2d 268; Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257. Similarly, the facts were sufficient where the defendant was found in a car with the engine running and the car had been driven into a snowbank on the median of a highway. Garland v. State (1983), Ind.App., 452 N.E.2d 1021.

The State urges that this case is controlled by Traxler, Rose and Garland because the front end of Clark's car was protruding into the roadway. We do not agree. In essence, Clark's car was parked in a parking space, however inartfully. There are no facts from which the fact-finder could infer that Clark operated the car while intoxicated. The facts here are much closer to those in Mordacq, Corl and Hiegel. Therefore we reverse Clark's conviction.

REVERSED.

ROBERTSON, J., concurs.

SHARPNACK, C.J., dissents with opinion.

SHARPNACK, Chief Judge, dissenting.

I respectfully dissent. This is a close case that rests near the line that divides those cases like Hiegel v. State, (1989), Ind.App., 538 N.E.2d 265; Corl v. State (1989), Ind.App., 544 N.E.2d 211; and Mordacq v. State (1992), Ind.App., 585 N.E.2d 22, which find the evidence insufficient to support a conviction for operating while intoxicated from those cases like Bowlin v. State (1975), 164 Ind.App. 693, 330 N.E.2d 353; Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257; Garland v. State (1983), Ind.App., 452 N.E.2d 1021; and Traxler v. State (1989), Ind.App., 538 N.E.2d 268, which find the evidence to be sufficient.

What divides these cases is that, in the cases which have sustained convictions, there is "some direct or circumstantial evidence to show that the defendant operated the vehicle." Hiegel, 538 N.E.2d at 268. As Judge Hoffman wrote in that case, "Showing that the defendant merely started the engine of the vehicle is not sufficient evidence to sustain a conviction for operating a vehicle while intoxicated." Id. The cases upholding the sufficiency of the evidence demonstrate that substantial evidence capable of supporting the inference that the defendant operated an automobile will suffice to support the conviction. Thus, in Bowlin, the defendant was found in his car with the lights on and the engine running in the median of a four-lane highway. In Rose, the defendant was found in his car stopped in a roadway at a stop sign. In Garland, the defendant was found in his car which had been driven into a snow bank in the median of an interstate highway. In Traxler, the defendant was found asleep in his car stopped in a traffic lane with the engine running and the lights on. In each of these cases the location of the automobile gave rise to the reasonable inference that the defendant had operated the automobile.

In contrast, in Hiegel and Corl the defendants were asleep in their cars with the engines running, but parked in parking lots. In Mordacq, the defendant was parked off of the travelled portion of a roadway. In these cases, the location of the vehicle did not give rise to the reasonable inference that the defendant had operated the vehicle.

As I noted earlier, the evidence in this case is close. In his brief, Clark contends that the position of the automobile--half in a parking slip and half in the travelled portion of a roadway--cannot support beyond a reasonable doubt the inference that he operated the automobile. This is an extension of his argument at trial, where he suggested that the position of the car merely raised the inference that the car had been poorly parked before he became intoxicated and had not been operated after he became intoxicated. The trial court as trier of fact obviously rejected the argument at trial. It was within the court's prerogative to do so. When the trier of fact chooses among competing inferences, it is not the province of this court to second guess its choice. Stallings v. State (1970), 255 Ind. 365, 368, 264 N.E.2d 618, 620, cert. denied, 402 U.S. 997, 91 S.Ct. 2183, 29 L.Ed.2d 163; Eldridge v. State (1980), Ind.App., 406 N.E.2d 1264, 1266. If the inference chosen is reasonable and supported by the evidence, this court should not disturb the verdict or judgment of the finder of fact. Eldridge, 406 N.E.2d at 1266.

I find the position of the vehicle does give rise to a reasonable inference that Clark operated it after becoming intoxicated. One of the cases upon which Judge Hoffman relied in the Hiegel decision was Wells v. Commonwealth (1986), Ky.App., 709 S.W.2d 847. Judge Hoffman wrote that in Wells, which had facts closely resembling the Hiegel facts, the court:

"[F]ound no evidence that defendant had driven or otherwise operated the vehicle, while intoxicated, to its location. The defendant was asleep and it was not shown that defendant planned to operate the vehicle. The fact that defendant merely started the engine was not held to be an exercise of actual physical control. The court observed that in similar cases where the defendant was found guilty of operating a vehicle while intoxicated, there was an inference that the defendant had driven the vehicle."

538 N.E.2d at 267, 268.

In discussing those cases, the court in the Wells case said,

"In most other jurisdictions where a sleeping person behind the steering wheel of a motionless car was held to be operating the motor vehicle, additional circumstances have been present that would show the person had in fact operated the vehicle. For example, in Jacobson v. State, 551 P.2d 935 (Alaska, 1976), the defendant was intoxicated and was found asleep in his parked vehicle with the motor and heater running, but two wheels of the vehicle were situated on the highway and the other two were off the pavement. In State v. Lariviere, 2 Conn.Cir. 221, 197 A.2d 529 (1963), the defendant's car was found in a parking lot with its engine running and was obstructing traffic. The vehicle was not in a parking slot and the defendant was asleep in the driver's seat. The vehicle had apparently rolled or was driven from a parking space."

709 S.W.2d 847 at 850 (emphasis added).

In this case the facts most favorable to the trial court's finding of guilt are to be drawn from the following testimony:

Q: [by the prosecutor] Can you tell us what drew your attention to Kevin E. Clark on that day?

A: Yes, a security officer who worked Port-O-Call, which is the apartment complex, came upon a vehicle partially in the roadway of the...