Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
Apr 02 2014, 8:18 am
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOEL M. SCHUMM GREGORY F. ZOELLER
MATTHEW P. HAYES Attorney General of Indiana
Certified Legal Intern
Appellate Clinic RICHARD C. WEBSTER
Indiana University Robert H. McKinney Deputy Attorney General
School of Law Indianapolis, Indiana
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DARVELLE WHITE, )
)
Appellant-Defendant, )
)
vs. ) No. 49A02-1307-CR-623
)
STATE OF INDIANA, )
)
Appellee-Plaintiff. )
APPEAL FROM THE MARION SUPERIOR COURT
The Honorable Amy Barbar, Magistrate
Cause No. 49F19-1208-CM-53777
April 2, 2014
MEMORANDUM DECISION - NOT FOR PUBLICATION
CRONE, Judge
Darvelle White challenges the sufficiency of the evidence supporting his conviction
for class A misdemeanor operating a vehicle while intoxicated (“OWI”). We affirm.
The facts most favorable to the jury’s verdict are that at approximately 1:50 a.m. on
August 5, 2012, Beech Grove Police Officer David Parker was driving westbound in a
residential neighborhood when he saw a two-door car traveling eastbound at approximately
twice the legal speed limit. As Officer Parker turned his vehicle around to stop the car for
speeding, he saw the car pull to the side of the street and park. Within three seconds after the
car stopped, White exited the driver’s-side door with keys1 in his hand, staggered, and
“hurried to the other side of the street[.]” Tr. at 39. Officer Parker ordered him to stop.
White, who lived on that street, asked the officer why he was “bothering him” and said, “I’m
not driving any more, why are you stopping me[?]” Id. White’s breath smelled of alcoholic
beverage, his speech was “thick and slurred[,]” and his eyes were “watery.” Id. at 40. White
was uncooperative, so Officer Parker handcuffed him and called for assistance. Officer
Parker noticed a female sitting in the car’s front passenger seat. When Major Tom Hurrle
arrived, Officer Parker administered three sobriety tests to White, which he failed. Major
Hurrle administered a portable breath test, which detected alcohol. Officer Parker arrested
White for OWI.
1
The State says that “Officer Parker observed that [White] was holding his car keys.” Appellee’s Br.
at 3 (citing Tr. at 40). In fact, Officer Parker testified that he “didn’t confirm” that the keys were White’s car
keys, Tr. at 78, and White claimed that they were his house keys, which were not attached to his car keys. Id.
at 163. Although the jury was entitled to disbelieve White’s testimony and draw the reasonable inference that
he was holding his car keys, we caution the State to avoid misrepresenting the record.
2
White refused to take a chemical breath test, so Officer Parker obtained a warrant for a
blood draw, which was performed at a hospital. As Officer Parker was transporting White
from the hospital to the arrestee processing center, White said that he “just could not
understand why [the officer] was wasting [his] time on him, when there [were] other
robberies and other more serious crimes. [White] was already parked and he wasn’t driving
any more.” Id. at 59. According to Officer Parker, White “never said that he wasn’t driving.
He said that now he was done driving [the officer] shouldn’t be wasting [his] time on him.”
Id. at 77. At the processing center, White became unruly and had to be subdued by several
officers. The blood draw revealed a blood alcohol content of 0.16 percent. The State
charged White with class A misdemeanor OWI and class A misdemeanor resisting law
enforcement. At trial, White claimed that his passenger had driven the car and that he had
exited the car from the back seat. The jury found him guilty as charged.
On appeal, White challenges the sufficiency of evidence supporting his OWI
conviction, claiming that the State failed to prove that he was the driver of the car. Our
standard of review is well settled.
When considering a challenge to the sufficiency of the evidence, we neither
reweigh the evidence nor judge the credibility of witnesses. Instead, we will
consider only the probative evidence and the reasonable inferences that may be
drawn therefrom in support of the verdict. If the probative evidence and
reasonable inferences could have allowed a reasonable trier of fact to find the
defendant guilty beyond a reasonable doubt, the conviction must be affirmed.
A conviction may be based entirely on circumstantial evidence. The
circumstantial evidence need not overcome every reasonable hypothesis of
innocence; rather, the evidence is sufficient if an inference may reasonably be
drawn from it to support the verdict.
3
Mendoza v. State, 869 N.E.2d 546, 554 (Ind. Ct. App. 2007) (citations omitted), trans.
denied.
Although it is true, as White observes, that Officer Parker never actually saw him
driving the car, the foregoing circumstantial evidence favorable to the verdict was more than
sufficient for a reasonable factfinder to determine beyond a reasonable doubt that he did.
White’s argument is merely an invitation to reweigh evidence and judge witness credibility,
which we will not do. Therefore, we affirm his OWI conviction.
Affirmed.
BAKER, J., and BARNES, J., concur.
4