dissenting.
I respectfully dissent. The majority makes light of the fact that no eye witness ever placed Crawley in the driver's seat of the car. Appellate cases dealing with the sufficiency of the evidence to prove operation of a vehicle usually include fact patterns where a witness has found the defendant in the driver's seat of the vehicle alleged to have been operated. See, e.g., Parks v. State, 752 N.E.2d 63 (Ind.Ct.App.2001); Clark v. State, 611 N.E.2d 181 (Ind.Ct.App.1993), trans. denied; Hiegel v. State, 588 N.E.2d 265 (Ind.Ct.App.1989). Indeed, "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" Clark, 611 N.E.2d at 181.
More recently, we have considered the sufficiency of the evidence to prove operation where the defendant was found outside of the vehicle alleged to have been operated; however, that was in the context of an interlocutory appeal disputing whether there was probable cause for the purpose of a search. Copas v. State, 891 N.E.2d 663 (Ind.Ct.App.2008). The defendant had been found unresponsive lying outside of a vehicle that had been in a serious collision, on the driver's side of that vehicle. Id. at 665. No other person was found at the scene that could have been a driver or passenger of the vehicle, and we concluded that this was sufficient to establish a "fair probability" that she had operated the vehicle, but carefully distinguished the lower threshold required to establish probable cause compared to guilt beyond a reasonable doubt. Id. at 668.
I believe that the evidence, taken together, creates a probability that Crawley operated the vehicle, but this probability is less than beyond a reasonable doubt. Although we often state that it is not our function to reweigh the evidence, when we compare the evidence presented by the State here to the evidence in Parks, Clark, and Hiegel it is a break from our precedent to affirm Crawley's conviction.