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, 10:12 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Alexander L. Hoover Curtis T. Hill, Jr.
Law Office of Christopher G. Walter, Attorney General of Indiana
P.C. Steven J. Hosler
Nappanee, Indiana Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jennifer Melissa Milburn, February 25, 2020
Appellant-Defendant, Court of Appeals Case No.
19A-CR-2038
v. Appeal from the St. Joseph
Superior Court
State of Indiana, The Honorable Paul E. Singleton,
Appellee-Plaintiff. Magistrate
Trial Court Cause No.
71D06-1805-CM-1863
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 1 of 6
[1] Jennifer Melissa Milburn 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 May 11, 2018, the bartender at Rum Village Inn saw Milburn seated at a
table with a couple of other people, asked if anyone at the table needed
anything else, and Milburn declined. Later, others at Milburn’s table got up
and ordered drinks, and when the bartender went to check on Milburn, she had
one of the mixed drinks in front of her. 1 Jennifer Burks was in the patio area at
Rum Village Inn, which had a white privacy fence around it, when she heard a
crash into the fence. Burks walked around the fence and saw a vehicle with
front-end damage and Milburn in the driver’s seat. According to Burks, “by the
looks of her, [Milburn] seemed intoxicated. Maybe a little nervous, too,
because she hit the fence.” Transcript Volume II at 19. Burks told Milburn she
did not need to be driving. Milburn pulled out into a street “driving very fast,
and there was a car coming down [the street], and she about ran into that
vehicle” and “that vehicle had slammed on its brakes or something.” Id. at 21.
[3] South Bend Police Officer Joel Paschen responded to the scene at Rum Village
Inn at approximately 8:10 p.m., spoke with witnesses, obtained a license plate
number from one of the witnesses, noticed the fence was cracked and broken,
1
The bartender testified her shift ended at 6:00 p.m.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2038 | February 25, 2020 Page 2 of 6
and discovered a piece of plastic trim from a vehicle. After he determined
Milburn was the owner of the vehicle, Officer Paschen went to Milburn’s
address and spoke with her at approximately 8:50 p.m. He matched the piece
of plastic trim to Milburn’s vehicle and noticed a white paint transfer on the
front bumper. Officer Dominic Hall performed field sobriety tests at about 9:00
p.m., and Milburn exhibited all six clues of impairment during the horizontal
gaze nystagmus test, all eight clues of impairment during the walk-and-turn test,
and three of the four clues of impairment during the one-leg-stand test.
[4] The State charged Milburn with: Count I, operating a vehicle while intoxicated
endangering a person as a class A misdemeanor; Count II operating a vehicle
with an ACE of .15 or more as a class A misdemeanor; and Count III, leaving
the scene of an accident as a class B misdemeanor. Following a bench trial, the
court found Milburn guilty on Counts I and III and not guilty on Count II. The
court sentenced Milburn to 365 days with 360 days suspended on Count I and
60 days with 55 days suspended on Count III to be served concurrently, and it
ordered that Milburn serve her time on weekends.
Discussion
[5] When reviewing the sufficiency of the evidence to support a conviction, we
must consider only the probative evidence and reasonable inferences supporting
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
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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.
[6] Milburn argues there is no evidence establishing she was intoxicated while she
was operating her motor vehicle from Rum Village Inn to her residence, the
bartender never served her an alcoholic beverage, and there were no
observations by police of her operating her motor vehicle. As to Burks’s
testimony that she “seemed intoxicated. Maybe a little nervous, too, because
she hit the fence,” Transcript Volume II at 19, Milburn argues “Burks’s ability
to distinguish between nervousness and intoxication without any training
should call this single statement into question.” Appellant’s Brief at 8-9.
[7] 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. Intoxication may be
established through evidence of consumption of significant amounts of alcohol,
impaired attention and reflexes, watery or bloodshot eyes, 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
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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.
[8] The trial court heard evidence that the bartender at Rum Village Inn observed
Milburn with a mixed drink in front of her and that Burks heard a crash into the
privacy fence around the patio area, went around the fence, saw Milburn in a
vehicle with front-end damage, believed that Milburn seemed intoxicated, and
told her that she did not need to be driving. The court heard Burks’s testimony
that Milburn pulled out into a street “driving very fast” and nearly struck
another moving vehicle. Transcript Volume II at 21. Burks testified she was
three or four feet from the privacy fence when the crash occurred. The court
also heard testimony that Milburn exhibited numerous clues of impairment
when administered field sobriety tests. The court found that the officers’
testimony was “quite credible.” Id. at 81. Milburn’s arguments are merely a
request that we reweigh the evidence and judge the credibility of the witnesses,
which we cannot do. Drane, 867 N.E.2d at 146.
[9] Based upon the record, we cannot say the inferences made by the trier of fact
here were unreasonable. We conclude that evidence of probative value exists
from which the court as the trier of fact could have found Milburn guilty
beyond a reasonable doubt of operating a vehicle while intoxicated endangering
a person as a class A misdemeanor.
[10] Affirmed.
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[11] Baker, J., and Riley, J., concur.
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