Winters v. State
| Decision Date | 05 September 2019 |
| Docket Number | Court of Appeals Case No. 19A-CR-431 |
| Parties | Corey Lamar WINTERS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Attorney for Appellant: Darren Bedwell, Indianapolis, Indiana
Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Caroline G. Templeton, Deputy Attorney General, Indianapolis, Indiana
[1] Corey Winters appeals his conviction for operating a vehicle with an alcohol concentration equivalent ("ACE") of .08 or more, a Class C misdemeanor, after police discovered Winters sitting in his running vehicle, which was parked halfway in a residential driveway and halfway in the roadway. We affirm.
[2] The sole issue before us is whether the evidence is sufficient to support Winters' conviction.
[3] At 5:15 a.m. on May 26, 2018, Officer Vincent Marshall with the Indianapolis Metropolitan Police Department ("IMPD") responded to a request for a welfare check on a person parked in a running vehicle in Marion County. Officer Marshall observed a black Chevy suburban in the "two north bound lanes of Lynhurst Drive." Tr. Vol. II p. 6. According to Officer Marshall, Id. The vehicle was running, and it appeared that Winters was sleeping in the driver's seat of the vehicle.
[4] Officer Marshall woke Winters and smelled alcohol on Winters' breath, observed that Winters' eyes were red and watery, and noticed that Winters' speech was slurred. Officer Marshall conducted a horizontal gaze nystagmus test, which Winters failed. Officer Marshall then called Lieutenant Michael DeHart, a member of the DUI task force, to the scene.
[5] Lieutenant DeHart arrived on the scene, put Winters in the back of his police vehicle, and read Winters his Miranda rights. Winters admitted to Lieutenant DeHart that Winters had been out drinking that night. Lieutenant DeHart also smelled alcohol on Winters' breath, observed that Winters' eyes were "blood shot and glassy," and noticed that Winters' speech was slurred. Id. at 14. An inventory search of Winters' vehicle yielded empty alcohol containers. Lieutenant DeHart transported Winters to Eskenazi Hospital and performed three field sobriety tests—the horizontal gaze nystagmus
test, the walk and turn test, and the one-legged stand test—inside a holding area of the hospital. Winters failed all three tests.
[6] Winters submitted to a chemical blood test at the hospital at 7:11 a.m. on May 26, 2018. Winters' lab report indicated that Winters' "plasma-serum ethyl alcohol concentration" was .136%, which corresponds "to a whole blood ethyl alcohol concentration" in the range of .107% to .128%. State's Ex. 1.
[7] The State charged Winters on June 11, 2018, with Count I, operating a vehicle while intoxicated endangering a person, a Class A misdemeanor; and Count II, operating a vehicle with an ACE of .08 or more, a Class C misdemeanor.
[8] A bench trial occurred on January 29, 2019, where witnesses testified to the foregoing facts. At the end of the presentation of the State's evidence, Winters' counsel moved for dismissal under Indiana Trial Rule 41(B). The trial court denied Winters' motion.
[9] Winters took the stand in his defense and testified that he left a bar at 1:30 a.m. on May 26, 2018, and drove for about thirty seconds before he pulled over and parked because he "felt uncomfortable driving," "partially" because he had been drinking; he indicated that his discomfort "was more fatigue [ ] than alcohol." Tr. Vol. II pp. 23, 26. Winters disagreed that his vehicle was obstructing traffic, but instead, alleged that officers may have incorrectly perceived that his vehicle was partially in the roadway based on the position in which he parked his vehicle.
[10] The trial court found Winters not guilty of Count I and guilty of Count II. Winters now appeals.
[11] Winters argues the evidence is insufficient to support his conviction. When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State , 51 N.E.3d 204, 210 (Ind. 2016) (citing Bieghler v. State , 481 N.E.2d 78, 84 (Ind. 1985), cert. denied ), cert. denied . Instead, "we ‘consider only that evidence most favorable to the judgment together with all reasonable inferences drawn therefrom.’ " Id. (quoting Bieghler , 481 N.E.2d at 84 ). "We will affirm the judgment if it is supported by ‘substantial evidence of probative value even if there is some conflict in that evidence.’ " Id. (quoting Bieghler , 481 N.E.2d at 84 ); see also McCallister v. State , 91 N.E.3d 554, 558 (Ind. 2018) (). Further, "[w]e will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State , 73 N.E.3d 693, 696 (Ind. 2017) (citing Drane v. State , 867 N.E.2d 144, 146 (Ind. 2007) ).
[12] The offense of operating a vehicle with an ACE of .08 or more, a Class C misdemeanor, is governed by Indiana Code Section 9-30-5-1(a), which provides: "A person who operates a vehicle with an alcohol concentration equivalent to at least eight-hundredths (0.08) gram of alcohol but less than fifteen-hundredths (0.15) gram of alcohol per: (1) one hundred (100) millimeters of the person's blood ... commits a Class C misdemeanor." Winters argues that the evidence is insufficient because he testified that he left the bar at approximately 1:30 a.m. and pulled over and parked shortly thereafter. The officers did not find Winters until 5:15 a.m., and Winters did not receive a chemical test until 7:11 a.m.
[13] According to Winters, the State was not able to rely on the statutory presumption in Indiana Code Section 9-30-6-15, which states:
"Section 2" as referenced in the statute above, states that the chemical test must be administered "within three (3) hours after the law enforcement officer had probable cause to believe the person committed an offense under IC 9-30-5...." Ind. Code § 9-30-6-2(c).
[14] To rely on this presumption, according to Winters, the State was required to prove that Winters operated the vehicle at some point after 4:11 a.m.—three hours before his chemical test—which he contends the State failed to do. See Allman v. State , 728 N.E.2d 230, 230 (Ind. Ct. App. 2000) ().
[15] The State argues that, when officers found Winters at 5:15 a.m., he was "operating" his vehicle as defined by law. "The operator of a motor vehicle is, in pertinent part, a person who drives or is in actual physical control of a motor vehicle upon a highway." Mordacq v. State , 585 N.E.2d 22, 23 (Ind. Ct. App. 1992) (quotations and citations omitted). "Thus, to operate a vehicle is to drive it or be in actual physical control of it upon a highway." Id. "This court has written ‘the State does not have to prove movement of the car.’ " Id. at 24 (quoting Johnson v. State , 518 N.E.2d 1127, 1128 (Ind. Ct. App. 1988) ). "However, the Johnson court also opined that the word "operate" requires effort, the doing of something, by the operator." Id.
[16] In other words, the parties' main disagreement is whether Winters' was "operating" the vehicle at 5:15 a.m., when police discovered him. If Winters was "operating" the vehicle, then the State could rely on the three-hour presumption in the statute; if Winters was not operating the vehicle, then the State could not rely on the presumption in the statute because the operation did not occur within three hours of the blood test. Our Court in Mordacq , 585 N.E.2d at 24, summarized the law well, stating:
In a case where a vehicle is discovered motionless with the engine running, whether a person sitting in the driver's seat "operated" the vehicle is a question of fact, answered by examining the surrounding circumstances. Thus, it has been held that the evidence was insufficient in such a case, involving .14% BAC, where the evidence showed that the defendant left a tavern, walked to a car parked in a nearby parking lot, started the engine, then fell asleep. Hiegel v. State (1989), Ind. App., 538 N.E.2d 265, trans. denied; accord Corl v. State (1989), Ind. App., 544 N.E.2d 211. The Hiegel court explained that to show...
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