MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
FILED
regarded as precedent or cited before any Feb 25 2020, 10:36 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kevin McShane Curtis T. Hill, Jr.
Indianapolis, Indiana Attorney General of Indiana
Tiffany A. McCoy
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Stephen Hahn, February 25, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-1749
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy Jones, Judge
Appellee-Plaintiff. The Honorable David Hooper,
Magistrate
Trial Court Cause No.
49G08-1706-CM-24224
Sharpnack, Senior Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-1749 | February 25, 2020 Page 1 of 8
Statement of the Case
[1] Stephen Hahn appeals his conviction by jury of operating a vehicle while
1
intoxicated in a manner endangering a person, a Class A misdemeanor. We
affirm.
Issue
[2] Hahn raises one issue, which we restate as: whether there is sufficient evidence
to sustain his conviction.
Facts and Procedural History
[3] On June 30, 2017, at 2:53 a.m., an unidentified person called 911 to report an
unconscious person sitting in a car in a restaurant parking lot. The caller told
the dispatcher that the person was sitting in the driver’s seat, with the engine
running.
[4] Officer (later Detective) Jeremy Mackey of the Indianapolis Metropolitan
Police Department (“IMPD”) was dispatched with another officer to the
restaurant. He saw a car sitting in the parking lot; it was not in a space but
rather sat near an exit to a street. If the car had rolled forward, it would have
exited the lot and entered the street. Other vehicles entering or exiting the lot at
that spot would have had to drive around the car.
1
Ind. Code § 9-30-5-2 (2001).
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[5] Mackey noted that the car was running, with the brake lights on and the
windows down. When he looked into the car, Mackey saw a person, later
identified as Hahn, unconscious in the driver’s seat. Hahn’s foot was on the
brake. He had food and vomit on his shirt, and Mackey smelled alcohol on his
person.
[6] Another officer turned off the car while Mackey awakened Hahn. Hahn exited
the car upon Mackey’s order. Hahn’s balance was unsteady, and he grabbed
the car’s frame as he pulled himself upright.
[7] Meanwhile, IMPD Officer Adam Jones arrived. After conferring with the
other officers, he approached Hahn, who was leaning on his car. Jones saw
food on the front of Hahn’s shirt and smelled the odor of alcohol on his person.
As he talked with Hahn, Jones noted that Hahn had “glassy blood shot eyes”
and slurred speech. Tr. p. 62.
[8] Jones administered the horizontal gaze nystagmus test to Hahn. During the
test, Hahn displayed several indicators consistent with intoxication. Jones
decided not to perform other tests on Hahn’s balance because Hahn stated that
he had bad knees.
[9] Next, Jones asked Hahn to submit to a blood draw, and Hahn agreed. As
Jones drove Hahn to a hospital for the blood draw, Jones informed Hahn of his
Miranda rights. During their subsequent conversation, Hahn admitted that he
had been drinking that evening, that he “felt intoxicated,” and he “probably
shouldn’t have been driving a car . . . .” Id. at 68.
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[10] Hahn submitted to a blood draw. Subsequent laboratory testing revealed that
Hahn’s blood sample had an ethyl alcohol concentration of 0.124 to 0.149
percent.
[11] On June 30, 2017, the State charged Hahn with operating a vehicle while
intoxicated in a manner endangering a person, a Class A misdemeanor; and
operating a vehicle with an ACE of .15 or more, a Class A misdemeanor. The
State later amended the second charge to operating a vehicle with an ACE of
.08 or more, a Class C misdemeanor.
[12] On October 17, 2017, Hahn filed a request for a jury trial. The trial court
presided over a jury trial on April 22, 2019. The jury determined Hahn was
guilty as charged. During the May 20, 2019 sentencing hearing, the trial court
vacated the guilty verdict of operating a vehicle with an ACE of .08 or more, a
Class C misdemeanor, determining that it merged with the conviction of
operating a vehicle while intoxicated in a manner endangering a person. Next,
the Court imposed a sentence.
[13] Hahn filed a motion to correct error, and the State filed a response. The trial
court denied the motion, and this appeal followed.
Discussion and Decision
[14] Hahn argues the State failed to present sufficient evidence to sustain his
conviction for operating a vehicle while intoxicated in a manner endangering a
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2
person. He claims the evidence shows only that he was parked in a lot when
the officers arrived.
[15] The standard of review for assessing the sufficiency of the evidence is well
established:
In reviewing a sufficiency of the evidence claim, the Court
neither reweighs the evidence nor assesses the credibility of the
witnesses. We look to the evidence most favorable to the verdict
and reasonable inferences drawn therefrom. We will affirm the
conviction if there is probative evidence from which a reasonable
jury could have found the defendant guilty beyond a reasonable
doubt.
Love v. State, 761 N.E.2d 806, 810 (Ind. 2002) (citations omitted).
[16] To obtain a conviction as charged, the State was required to prove beyond a
reasonable doubt that: (1) Hahn; (2) operated a vehicle; (3) while intoxicated;
(4) in a manner that endangered a person. Ind. Code § 9-30-5-2. The parties’
dispute focuses on whether the State demonstrated that Hahn had “operated”
the vehicle in which he was found. The Indiana General Assembly has defined
“operate” as “to navigate or otherwise be in actual physical control of a vehicle,
motorboat, off-road vehicle, or snowmobile.” Ind. Code § 9-13-2-117.5 (2016).
2
Hahn also challenges the sufficiency of the evidence supporting the charge of operating a vehicle with an
ACE of .08 or more. The trial court vacated the jury’s verdict as to that charge, so Hahn’s claim is moot.
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[17] In determining whether a defendant was in “actual physical control” of a
vehicle, a panel of this Court has noted the following factors are relevant: “(1)
the location of the vehicle when discovered; (2) whether the vehicle was in
motion when discovered; and (3) additional evidence that defendant was
observed operating the vehicle before he or she was discovered.” West v. State,
22 N.E.3d 872, 876 (Ind. Ct. App. 2014), trans. denied. “Any evidence that
leads to a reasonable inference should be considered.” Hampton v. State, 681
N.E.2d 250, 251-52 (Ind. Ct. App. 1997).
[18] In Hampton, officers found Hampton asleep in the driver’s seat of his vehicle,
which was sitting partially on a road and partially in a yard. The engine was
running, the vehicle’s lights were on, and it was in gear. The Court concluded
the evidence was sufficient to establish beyond a reasonable doubt that
Hampton had operated the vehicle.
[19] Next, in Custer v. State, 637 N.E.2d 187, 189 (Ind. Ct. App. 1994), an officer
found Custer asleep in the driver’s seat in his car, which was parked along the
side of the road. The engine was running. In addition, the officer had received
a report that the vehicle had been seen traveling on the road near the location of
the encounter. This evidence was deemed sufficient to establish that Custer had
operated the car while intoxicated.
[20] Finally, in Bowlin v. State, 164 Ind. App. 693, 695, 330 N.E.2d 353, 355 (1975),
an officer found Bowlin asleep in the driver’s seat of his car, which was sitting
in the median strip of a four-lane highway. The engine was running. The
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Court determined there was sufficient evidence that Bowlin had operated the
vehicle.
[21] By contrast, in Clark v. State, 611 N.E.2d 181, 181 (Ind. Ct. App. 1993), trans.
denied, officers found Clark asleep in the driver’s seat of his car, which was
partially parked in a parking spot at an apartment complex. The engine was
running and the lights were on. A panel of this Court determined the evidence
was insufficient to demonstrate that Clark had operated the car.
[22] Similarly, in Hiegel v. State, 538 N.E.2d 265, 266 (Ind. Ct. App. 1989), trans.
denied, officers found Hiegel asleep in the driver’s seat of his car, which was
parked in a tavern’s parking lot. The engine was running, but the car was in
park and the driver’s side door was open. A panel of this Court concluded the
State had failed to sufficiently demonstrate that Hiegel had driven the car.
[23] Finally, in Corl v. State, 544 N.E.2d 211, 212 (Ind. Ct. App. 1989), officers
found Corl asleep in the driver’s seat of his vehicle, which was parked in a
parking lot next to a tavern. The engine and lights were on. A panel of this
Court determined the evidence was insufficient to demonstrate Corl had
operated the car prior to falling asleep.
[24] The facts of Hahn’s case are more similar to the circumstances in Hampton,
Custer, and Bowlin than the circumstances in Clark, Hiegel and Corl. Hahn
agreed with Jones that he was intoxicated and “probably shouldn’t have been
driving a car,” Tr. p. 68, which is direct proof that he had operated the car
before the officers arrived.
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[25] In addition, although Hahn’s car was in a parking lot, it was located near an
exit, pointing toward the street and partially obstructing other vehicles. The car
was not in a parking spot. Finally, the engine was running and Hahn’s foot was
on the brake. The car’s location gives rise to a reasonable inference that Hahn
had driven it to that spot, similar to the vehicles in Hampton (found partially in a
road, partially in a yard) and Bowlin (found parked in a median). By contrast,
in Clark, Hiegel, and Corl, the evidence could have indicated that the defendants
had become intoxicated while in nearby buildings, entered their vehicles, and
fallen asleep instead of driving away, thus failing to establish operation of the
vehicles while intoxicated. In Hahn’s case, the State presented sufficient
evidence from which the finder of fact could conclude beyond a reasonable
doubt that Hahn had operated his car before the police arrived.
Conclusion
[26] For the reasons stated above, we affirm the judgment of the trial court.
[27] Affirmed.
May, J., and Crone, J., concur.
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