Leon D. Rushin, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

Case Summary

Leon Rushin appeals his conviction for Level 6 felony operating a vehicle with an alcohol concentration equivalent (“ACE”) of .08 or more,¹ arguing the State failed to present sufficient evidence he operated the vehicle. We affirm.

Facts and Procedural History

[1] On the evening of March 3, 2023, Officer Brennan Fesler of the Attica Police Department drove past a black sedan traveling in the opposite direction. He was unable to see the driver. As he passed the vehicle, the driver “immediately slammed on [the] brakes, turned into a parking lot of a closed business and then cut the lights off.” Tr. Vol. 2 at 147. Officer Fesler found the behavior odd, so he turned around and drove past the parking lot twice before parking in a church parking lot about 100 yards away to observe the vehicle. Officer Fesler testified he never lost sight of the vehicle for longer than a minute.

[2] After a few minutes, the driver turned the lights on and started to back up onto the roadway. But when the driver appeared to have a direct line of sight with Officer Fesler's car, the driver once again shut off the lights and pulled back into the parking lot.

[3] Officer Fesler drove over to the vehicle. He ended up “nose to nose” with it and observed Leon Rushin “going butt first over the center console.” Id. at 151-52. By the time Officer Fesler walked up to the car, Rushin was sitting in the passenger seat. Rushin, the middle console, and the driver's seat were covered with mud. While speaking to Rushin, Officer Fesler noticed his eyes were bloodshot and glassy, his speech was slurred, and there was a “strong odor of an alcoholic beverage” emanating from the vehicle. Id. at 153.

[4] Rushin was the only person in the car, but he repeatedly claimed his daughter, Lexus, was driving and left the vehicle to go into his mother's home, located near the parking lot. Officers went to Lexus’ home to ask her questions, but she was not there. Lexus later appeared in the parking lot in her own vehicle and stated she did not drive Rushin.

[5] Rushin failed a field sobriety test. Officer Fesler went through Rushin's pockets before transporting him to the police station and located the key to the vehicle. Rushin's ACE was 0.129 when he was tested at the police station.

[6] The State charged Rushin with one count of operating a vehicle with an ACE of 0.08 or more and one count of operating a vehicle while intoxicated. Both counts were charged as Level 6 felonies because Rushin had a prior operating offense committed within seven years of the instant offenses. The State also alleged Rushin was a habitual vehicular substance offender (“HVSO”). Before his jury trial, Rushin stipulated to the admission of all body camera footage and the results of his certified chemical test in exchange for a capped sentence if the jury found him guilty. He also admitted to his prior operating conviction and status as a HVSO if he were to be found guilty. At trial, Lexus testified Rushin's sister, Andrea, was supposed to drive him. See Tr. Vol. 2 at 207. Andrea did not appear at any point during the investigation or at trial.

[7] The jury found Rushin guilty of both charges. The trial court merged the two, entered judgment of conviction for operating a vehicle with an ACE of 0.08 or more, and sentenced Rushin to 545 days in the Indiana Department of Correction enhanced by 1,460 days for being a HVSO. The trial court suspended 545 days to probation and ordered the remaining 1,460 days to be served in community corrections.

Sufficient evidence supports Rushin's convictions.

[8] Rushin challenges the sufficiency of the evidence to support his conviction.² A sufficiency-of-the-evidence claim warrants a “deferential standard of review in which we ‘neither reweigh the evidence nor judge witness credibility[.]’ ” Hancz-Barron v. State, 235 N.E.3d 1237, 1244 (Ind. 2024) (quoting Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert. denied). Instead, we respect the fact-finder's exclusive province to weigh conflicting evidence, Phipps v. State, 90 N.E.3d 1190, 1195 (Ind. 2018), and consider only the probative evidence and reasonable inferences that support the judgment of the trier of fact, Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). We will affirm the conviction unless no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Teising v. State, 226 N.E.3d 780, 783 (Ind. 2024). It is “not necessary that the evidence ‘overcome every reasonable hypothesis of innocence.’ ” Sallee v. State, 51 N.E.3d 130, 133 (Ind. 2016) (quoting Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995)).

[9] To convict Rushin of operating a vehicle with an ACE of 0.08 or more, the State had to prove Rushin operated a vehicle with an alcohol concentration equivalent to at least 0.08 grams of alcohol per 210 liters of his breath. See I.C. § 9-30-5-1(a).

[10] Rushin argues the State failed to prove beyond a reasonable doubt he operated the vehicle.³ Operating a vehicle “means to navigate or otherwise be in actual physical control of a vehicle[.]” I.C. § 9-13-2-117.5 (2021). To determine whether a person operated a vehicle, we consider any relevant evidence, including “(1) the location of the vehicle when it is discovered; (2) whether the car was moving when discovered; (3) any additional evidence indicating that the defendant was observed operating the vehicle before he or she was discovered; and (4) the position of the automatic transmission.” Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010), trans. denied.

[11] Officer Fesler first discovered the vehicle when it passed him and made an abrupt turn into a parking lot. He continued to observe the vehicle's movement until he decided to pull up next to it, which took “[l]ess than 30 seconds.” Tr. Vol. 2 at 151. As he pulled up, he discovered Rushin going “butt first over the console” from the driver's seat into the passenger seat. Id. at 152. Rushin, the middle console, and the driver's seat were streaked with mud. Rushin was the only person seen in or around the vehicle and was in possession of the car keys.

[12] Rushin argues the vehicle was not moving when Officer Fesler pulled up to his car and the actual driver had gone into his mother's house in the time it took Officer Fesler to appear. Rushin likens his case to Johnson v. State, in which the State failed to prove Johnson operated a vehicle because “the car would not start” when police discovered him parked on the side of the road in the driver's seat. 518 N.E.2d 1127, 1127 (Ind. Ct. App. 1988). Plus, two witnesses corroborated Johnson's explanation he was waiting for the driver to find a tow.

[13] Unlike the car in Johnson, Officer Fesler observed Rushin's car moving shortly before initiating contact with him. And Lexus did not corroborate Rushin's story that she was the driver. Instead, at trial she stated she was out of town that evening and asked Andrea to drive him. Andrea was never seen in or around the car, and no other evidence indicated she was the driver. Rushin's arguments are requests to reweigh the evidence, which we cannot do. See Hancz-Barron, 235 N.E.3d at 1244.

[14] Based on the movements of the car, Rushin's actions after the car was stopped, the lack of other occupants, and the location of the car keys, there is sufficient evidence to support Rushin's conviction of operating the vehicle.⁴

[15] Affirmed.

FOOTNOTES

1.   Ind. Code §§ 9-30-5-1(a) (2021); 9-30-5-3(a)(1) (2020).

2.   Rushin admitted to his status as a HVSO and does not challenge its sufficiency on appeal.

3.   Rushin does not claim the evidence of his intoxication was insufficient.

4.   Rushin's second argument claims the trial court committed fundamental error because there is insufficient evidence to support his convictions, therefore “violat[ing] his constitutional Due Process right to be proven guilty beyond a reasonable doubt.” Appellant's Br. at 7. This argument essentially repeats the sufficiency of evidence challenge, and we need not reiterate our decision.Rushin also seems to argue Officer Fesler did not have any reasonable suspicion to make a traffic stop but does not develop the argument or cite relevant law. Any such argument is waived. See Ind. Appellate Rule 46(A)(8).

Kenworthy, Judge.

Judges Bradford and Pyle concur. Bradford, J., and Pyle, J., concur.