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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Aug 12 2011, 9:18 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DORI NEWMAN Newman & Newman, PC Noblesville, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana ANDREW FALK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
STEVEN EVERETT, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 29A02-1012-CR-1396

APPEAL FROM THE HAMILTON SUPERIOR COURT The Honorable Gail Z. Bardach, Judge Cause No. 29D06-0906-FD-3649

August 12, 2011

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Steven Everett appeals his convictions for operating a motor vehicle while privileges are suspended, a Class D felony, and operating a motor vehicle with an alcohol concentration equivalent of at least .08, a Class C misdemeanor, following a jury trial. Everett presents a single issue for review, namely, whether the State presented sufficient evidence that he operated a motor vehicle. Specifically, Everett contends that his

confessions to police are the only evidence that he operated a motor vehicle which, under the corpus delicti rule, is insufficient to sustain his convictions. We conclude that there is independent evidence the crimes were committed. We affirm. FACTS AND PROCEDURAL HISTORY On August 22, 2008, Everett, who was an habitual traffic offender and who had forfeited his driving privileges until 2013, was intoxicated when he drove to a gas station in Hamilton County. A cashier at the gas station, Judy Allen, watched Everett exit the driver's side door of his vehicle and enter the gas station convenience store. After Allen observed Everett and suspected that he was intoxicated, she contacted police. Before police arrived, Allen watched Everett get back into his vehicle through the driver's side door and drive toward the exit of the parking lot, where he stopped the vehicle. Noblesville Police Department Officers Bradley Kline and James Aloisio arrived at the scene and found Everett's vehicle stopped in a lane of travel near the exit of the parking lot. Everett was sitting in the driver's seat, and the engine was running. Officer Kline observed that Everett smelled of alcohol, and had red eyes and slurred speech.
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When Officer Kline asked Everett to produce his driver's license, Everett could only produce an identification card. Officer Kline then learned that Everett was an habitual traffic offender and that his driving privileges were currently suspended. Everett then admitted to Officer Kline that he had been drinking and driving that day. The State charged Everett with operating a vehicle as an habitual traffic violator, operating a vehicle while intoxicated, and operating a vehicle with an ACE of .08 or more.1 A jury found Everett guilty as charged, and the trial court entered convictions on Count I, operating a vehicle as an habitual traffic violator, and Count III, operating a vehicle with an alcohol concentration equivalent to at least 0.08, with the sentences to be served concurrently. This appeal ensued. DISCUSSION AND DECISION When the sufficiency of the evidence to support a conviction is challenged, we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm if there is substantial evidence of probative value supporting each element of the crime from which a reasonable trier of fact could have found the defendant guilty beyond a reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of the fact-finder to determine whether the evidence in a particular case sufficiently proves each element of an offense, and we consider conflicting evidence most favorably to the trial court's ruling. Id. at 906. To prove operating a motor vehicle while privileges are suspended, a Class D felony, the State was required to show that Everett operated a motor vehicle while his
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The charging information lists a fourth charge, but neither party makes reference to it, so we assume it was dismissed.

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driving privileges were validly suspended under Indiana Code Section 9-30-10 and that Everett knew that his driving privileges were suspended. And to prove operating a vehicle with an ACE of at least .08, a Class C misdemeanor, the State was required to show that Everett operated a vehicle with an alcohol concentration equivalent to at least .08 gram of alcohol but less than .15 gram of alcohol per 100 milliliters of his blood. Everett's sole contention on appeal is that the State did not present sufficient evidence to prove that he operated a motor vehicle, which is an element of each of his convictions. As this court recently stated in Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied, according to Indiana Code Section 9-13-2-118(a)(1), the "operator" of a motor vehicle is "a person . . . who . . . drives or is in actual physical control of a motor vehicle upon a highway . . . ." Thus, to operate a vehicle is to drive it or be in actual physical control of it upon a highway. Id. A public highway is a "street, an alley, a road, a highway, or a thoroughfare . . . that is used . . . or open to use by the public." Ind. Code

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