MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Dec 21 2016, 8:41 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Philip R. Skodinski Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana
Ellen H. Meilaender
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darren A. Mallett, December 21, 2016
Appellant-Defendant, Court of Appeals Case No.
71A03-1606-CR-1314
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable John M.
Appellee-Plaintiff Marnocha, Judge
Trial Court Cause No.
71D02-1507-F6-448
Crone, Judge.
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Case Summary
[1] Darren A. Mallett challenges the sufficiency of the evidence to support his
convictions for level 6 felony operating as a habitual traffic violator (“HTV”)
and level 6 felony operating while intoxicated (“OWI”) with a prior OWI
conviction. Finding the evidence sufficient to support his convictions, we
affirm.
Facts and Procedural History
[2] The facts most favorable to the verdicts are as follows: Just after midnight on
July 6, 2015, Indiana State Police Sergeant Jeffery Dolson observed a disabled
vehicle parked in the roadway on the Indiana Toll Road exit in St. Joseph
County. He stopped to offer assistance and found Mallett standing outside the
driver’s door, talking on a cell phone. Another man, Kenneth Hilton, was
seated in the front passenger’s seat. Mallett told the sergeant that his wife was
bringing him transmission fluid. During the exchange, Sergeant Dolson
noticed that Mallett showed signs of intoxication, including slurred speech,
bloodshot eyes, and the odor of an alcoholic beverage. When asked for his
driver’s license, Mallett produced an identification card. The sergeant entered
Mallett’s information into the computer and discovered that his license was
suspended based on his status as a habitual traffic violator. Mallett asked the
sergeant to just let him go home and explained that “the only reason [he] was
driving was because [he] was better off than [Hilton] was.” Tr. at 61. The
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vehicle was found to be registered to Mallett’s longtime girlfriend, whom he
had referred to as his “wife.” Id. at 60, 117.
[3] Sergeant Dolson arrested Mallett on the basis of driving while suspended, and
when he explained the situation to Hilton, he noticed that Hilton also exhibited
signs of intoxication. Hilton did not dispute the sergeant’s assertions that
Mallett had been driving. A search of the vehicle produced a plastic cup
containing alcohol, unopened beers, and several empty beer cans. Mallett
refused field sobriety tests and a chemical breath test. He was arrested and
taken to jail, where his blood alcohol concentration was 0.208.
[4] The State charged Mallett with Count I – class C misdemeanor OWI and
Count II – level 6 felony operating as an HTV. The State subsequently added
Count III – level 6 felony OWI, based on Mallett’s 2011 OWI conviction. A
jury found Mallett guilty of Counts I and II, and he waived jury trial on Count
III. The trial court found him guilty on Count III and entered judgment on
Counts II and III. Mallett now appeals.
Discussion and Decision
[5] Mallett maintains that the evidence is insufficient to support his convictions.
When reviewing a challenge to the sufficiency of evidence, we neither reweigh
evidence nor judge witness credibility. Drane v. State, 867 N.E.2d 144, 146 (Ind.
2007). Rather, we consider only the evidence and reasonable inferences most
favorable to the verdict and will affirm the conviction “unless ‘no rational fact-
finder’ could find the defendant guilty beyond a reasonable doubt.” Tuggle v.
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State, 9 N.E.3d 726, 736 (Ind. Ct. App. 2014), trans. denied. It is therefore not
necessary that the evidence “overcome every reasonable hypothesis of
innocence.” Drane, 867 N.E.2d at 147 (citation omitted).
[6] Mallett was convicted of operating as an HTV and OWI, both as level 6
felonies. 1 He asserts that the State failed to establish beyond a reasonable doubt
that he, not Hilton, was the driver of the vehicle. In addition to his self-serving
assertions to this effect, he cites as support Hilton’s trial testimony that Hilton
was the driver and that the reason Sergeant Dolson found Hilton in the
passenger’s seat was that he had been outside the vehicle before the officer’s
arrival and had merely re-entered the vehicle to stretch out in the passenger’s
seat. Mallett characterizes this testimony as uncontroverted yet disregards
Sergeant Dolson’s trial testimony that Mallett had admitted to him at the scene,
“[T]he only reason I was driving was because I was better off than [Hilton]
was.” Tr. at 61. He also disregards evidence that the vehicle was registered to
his “wife” and that when Sergeant Dolson explained the situation to Hilton at
the scene, Hilton did not dispute the sergeant’s assertion that Mallett was the
driver. Id. at 57, 60. We remind Mallett that we may neither reweigh evidence
nor judge witness credibility, and we must decline his invitation to do so. The
1
See Ind. Code § 9-30-10-16(a)(1) (person who unlawfully operates motor vehicle after having his Indiana
driving privileges validly suspended as habitual traffic violator by the bureau of motor vehicles and operated
motor vehicle when he knew he was suspended as HTV commits level 6 felony operating as HTV); see also,
Ind. Code § 9-30-5-3(a)(1) (person who unlawfully operates motor vehicle while intoxicated after having been
convicted within immediately preceding five years of OWI commits level 6 felony OWI).
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probative evidence most favorable to the verdicts is sufficient to establish that
Mallett was the driver of the vehicle. Accordingly, we affirm his convictions.
[7] Affirmed.
Riley, J., and Altice, J., concur.
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