MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any May 12 2020, 9:03 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Sean P. Hilgendorf Curtis T. Hill, Jr.
South Bend, Indiana Attorney General of Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Cynthia Miller, May 12, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2911
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Julie P. Verheye,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
71D04-1903-CM-884
Brown, Judge.
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[1] Cynthia Miller appeals and claims the evidence is insufficient to sustain her
conviction for operating a vehicle while intoxicated endangering a person as a
class A misdemeanor. We affirm.
Facts and Procedural History
[2] On March 1, 2019, Indiana State Trooper Kyle Glaze heard the South Bend
Police Department advise of a hit-and-run and responded to the scene. When
he arrived, he noticed other units at the scene in a cul-de-sac and another officer
speaking with Miller. Trooper Glaze observed from a distance of twenty to
thirty feet that Miller was visibly swaying. He approached Miller and asked her
“questions as to if she had been driving, the crash, and drinking.” Transcript
Volume II at 5. Miller stated that she had been driving the vehicle and had
accidentally struck the other vehicle. Trooper Glaze asked about her drinking,
and she admitted to drinking two beers. He noticed her speech was slurred and
at times it was difficult to understand her. Trooper Glaze asked Miller which
vehicle she had been driving, and she pointed to a vehicle behind her in a
driveway. He did not see damage to her vehicle. He noticed minor damage to
a Honda Pilot and spoke with the victims. Trooper Glaze then attempted to
administer the horizontal gaze nystagmus test several times. However, Miller
“seemed either belligerent or incoherent to be able to successfully follow
directions in order to complete the test.” Id. at 8. He observed her eyes were
bloodshot and glossy. According to Trooper Glaze, prior to transporting her to
the jail and “while observing her clothing, it appeared that her groin area was
saturated wet.” Id. at 10. Another officer transported Miller to the jail. At the
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jail, Trooper Glaze administered the walk-and-turn test, and Miller exhibited
seven indicators of intoxication which was considered failure.
[3] The State charged Miller with: Count I, operating a vehicle while intoxicated
endangering a person as class A misdemeanor; Count II, operating a vehicle
while intoxicated as a class C misdemeanor; and Count III, leaving the scene of
an accident as a class B misdemeanor. At a bench trial, the State presented the
testimony of Trooper Glaze. On cross-examination, when asked if he knew
how much time elapsed between the neighbors reporting an accident and for the
police to respond, Trooper Glaze responded he believed the approximation
given by the victims was five to ten minutes. Miller’s defense counsel moved
for a directed verdict and argued there was “no proof that she was driving,
except for what an officer had heard and provided to the Court.” Id. at 17. The
court found the State did not meet its burden with respect to Count III and
granted Miller’s motion for a directed verdict as to that count. The court found
her guilty on Counts I and II, stated Miller admitted to drinking a couple of
beers, had been driving, and hit a car, and said “[c]ertainly, that’s conduct that
could have endangered a person.” Id. at 24. The court entered judgment of
conviction for operating a vehicle while intoxicated endangering a person as a
class A misdemeanor under Count I, sentenced Miller to sixty days with fifty-
five days suspended, and placed her on probation for one year.
Discussion
[4] When reviewing the sufficiency of the evidence to support a conviction, we
must consider only the probative evidence and reasonable inferences supporting
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the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess
witness credibility or reweigh the evidence. Id. We consider conflicting
evidence most favorably to the trial court’s ruling. Id. We affirm the conviction
unless no reasonable fact-finder could find the elements of the crime proven
beyond a reasonable doubt. Id. It is not necessary that the evidence overcome
every reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient
if an inference may reasonably be drawn from it to support the verdict. Id.
[5] Miller argues that, even if she was intoxicated at the time Trooper Glaze
observed her, the conclusion that she had been driving while intoxicated was
based solely on speculation and not inference. She argues Trooper Glaze did
not see her operate a vehicle. She argues there was no evidence to link any
intoxication to the time of any operation of a motor vehicle.
[6] Ind. Code § 9-30-5-2 provides “a person who operates a vehicle while
intoxicated commits a Class C misdemeanor” and the offense “is a Class A
misdemeanor if the person operates a vehicle in a manner that endangers a
person.” “Intoxicated” means “under the influence of: (1) alcohol . . . so that
there is an impaired condition of thought and action and the loss of normal
control of a person’s faculties.” Ind. Code § 9-13-2-86. To operate a vehicle is
to drive it or be in actual control of it upon a highway. Jellison v. State, 656
N.E.2d 532, 535 (Ind. Ct. App. 1995). Circumstantial evidence is sufficient to
prove that the defendant operated the vehicle while intoxicated. Id.
Intoxication may be established through evidence of consumption of significant
amounts of alcohol, impaired attention and reflexes, watery or bloodshot eyes,
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an odor of alcohol on the breath, unsteady balance, failed field sobriety tests,
and slurred speech. Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009),
opinion adopted, 929 N.E.2d 196 (Ind. 2010). The element of endangerment can
be established by evidence showing the defendant’s condition or operating
manner could have endangered any person, including the public, the police, or
the defendant. Id. Endangerment does not require that a person other than the
defendant be in the path of the defendant’s vehicle or in the same area to obtain
a conviction. Id.
[7] The record reveals that Trooper Glaze testified that Miller admitted she had
consumed two beers and that he observed that she was visibly swaying, her
speech was slurred, her eyes were bloodshot and glossy, and she failed the walk-
and-turn test. Further, when he asked her about the crash and if she had been
driving and drinking, Miller stated that she had been driving and had
accidentally struck the other vehicle. Trooper Glaze testified that he asked
Miller which vehicle she had been driving, and she pointed to a vehicle in the
driveway behind her. He also testified that he spoke with the victims and
noticed minor damage to a Honda Pilot. Based upon the record, we cannot say
the inferences made by the trier of fact were unreasonable. We conclude that
evidence of probative value exists from which the court as the trier of fact could
have found Miller guilty beyond a reasonable doubt of operating a vehicle while
intoxicated endangering a person as a class A misdemeanor.
[8] Affirmed.
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[9] Najam, J., and Kirsch, J., concur.
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