RIVERA v. STATE (2025)

MEMORANDUM DECISION

[1] Roberto Carlos Cruz Rivera (“Rivera”) was convicted after a bench trial of operating a vehicle while intoxicated endangering a person as a Class A misdemeanor ¹ and was sentenced to 180 days executed in the Hancock County Jail and a ninety-day license suspension. Rivera appeals his conviction, arguing that the State failed to present sufficient evidence to support his conviction. We affirm.

Facts and Procedural History

[2] On October 22, 2023, Fortville Police Department (“FPD”) Officer Derek Archer (“Officer Archer”) was dispatched to State Road 67 in Hancock County due to a stopped vehicle facing eastbound in the westbound lane with a driver potentially asleep behind the wheel. Upon arrival at the scene, Officer Archer found a man, later identified as Rivera, asleep behind the wheel of the vehicle. Officer Archer observed two to three cars traveling westbound move into the eastbound lane to avoid a collision with a vehicle, which was stationary but in the westbound traffic lane. As Officer Archer approached Rivera's vehicle, he observed that the driver's side window was slightly open, music was blaring, the vehicle was stationary but still in gear and running, and Rivera was the sole occupant and asleep in the driver's seat. Officer Archer was able to awaken Rivera only after unsuccessfully yelling into the vehicle several times and then beating on the window. While speaking with Rivera, Officer Archer detected an odor of alcohol coming from the vehicle, observed two alcohol containers inside the vehicle, and described Rivera's speech was somewhat slurred.

[3] Rivera informed Officer Archer that he was coming from Lucas Oil Stadium where he worked as a cook and had consumed two alcoholic drinks prior to driving. When asked where he was heading, Rivera said he was on his way home, which was about ten miles west of the vehicle's location. Suspecting Rivera was intoxicated, Officer Archer then asked him to step out of the vehicle.

[4] FPD Officer Benford Kessinger (“Officer Kessinger”) arrived at the scene to assist Officer Archer with his investigation after getting the dispatch call. Upon arrival, Officer Kessinger spoke with Officer Archer and Rivera. After speaking with Rivera, Officer Kessinger proceeded to conduct a field sobriety test. Officer Kessinger first conducted the Horizontal Gaze Nystagmus test (“HGN”), which indicated that Rivera had a “lack of smooth pursuit ․ distinct nystagmus at maximum deviation and nystagmus onset prior to forty-five [ ] degrees” in both of his eyes, exhibiting six out of six intoxication indicators. Tr. Vol. II p. 32. Additionally, Officer Kessinger observed that during the test, Rivera was swaying a small amount and kept moving his head and had to be reminded to focus on the stimulus used in the test. These observations led Officer Kessinger to believe that Rivera was intoxicated. Next, a portable breath test was conducted indicating that there was a presence of alcohol. Rivera then consented to a chemical test and was transported to Hancock Regional Hospital by Officer Kessinger. At the hospital, a blood draw was conducted, and the subsequent Indiana State Toxicology lab report indicated that Rivera's blood contained an ethanol concentration of 0.070 g/100 ml.

[5] On October 23, 2023, the State charged Rivera with operating while intoxicated endangering a person, as a Class A misdemeanor. On November 4, 2024, a bench trial was held. After the State presented its case-in-chief, Rivera moved for a directed verdict on the basis that the State had not presented sufficient evidence to prove he was intoxicated. The State responded that, although Rivera's blood alcohol level was below the presumptive level of intoxication, there was additional evidence of Rivera's intoxication, including Rivera's slurred speech, leaving the car running, in gear and facing the wrong way on a roadway, being asleep behind the wheel, and failure of the HGN test. The trial court denied the motion. At the conclusion of the trial, the court found Rivera guilty as charged. Rivera was sentenced to 180 days executed in the Hancock County Jail, and a ninety-day suspension of his driver's license. Rivera now appeals.

Discussion and Decision

[6] Rivera argues that the State presented insufficient evidence to support his conviction for operating while intoxicated endangering a person, a Class A misdemeanor. When there is a challenge to the sufficiency of the evidence, “[w]e neither reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. We consider only the probative evidence and reasonable inferences most favorable to that judgment. Hall v. State, 177 N.E.3d 1183, 1191 (Ind. 2021). Further, “[w]e will affirm the conviction unless no reasonable factfinder could find the elements of the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).

[7] To convict Rivera of operating a vehicle while intoxicated endangering a person as a Class A misdemeanor, the State was required to prove beyond a reasonable doubt that Rivera operated a vehicle while intoxicated in a manner that endangered a person. Ind. Code § 9-30-5-2(a), (b). Rivera challenges the sufficiency of evidence to prove that Rivera was intoxicated, that he was intoxicated while operating the vehicle, and that a person was endangered.

[8] Rivera first asserts that the State failed to prove that he was intoxicated. Under the Indiana Code, “intoxicated” means being under the influence of alcohol, a controlled substance, a drug other than alcohol or a controlled substance, or combination of substances, “so that there is an impaired condition of thought and action and the loss of normal control of a person's faculties.” I.C. § 9-13-2-86. The statute does not require proof of a specific blood alcohol content to establish intoxication. Instead, the State may prove intoxication by demonstrating impairment. Pickens v. State, 751 N.E.2d 331, 335 (Ind. Ct. App. 2001). Impairment may be established by evidence showing “(1) the consumption of a significant amount of [an intoxicant]; (2) impaired attention and reflexes; (3) watery or bloodshot eyes; (4) the odor of [an intoxicant] on the breath; (5) unsteady balance; and (6) slurred speech.” Awbrey v. State, 191 N.E.3d 925, 929 (Ind. Ct. App. 2022).

[9] Here the evidence most favorable to the judgment demonstrated that, when the police encountered Rivera, he was asleep behind the wheel of his car, while the car was running, in gear, and facing oncoming traffic. Rivera's speech was slurred, there was an odor of alcohol coming from the vehicle, and alcohol containers were found in the vehicle. Further, a portable breath test indicated a positive result for alcohol, and Rivera also failed the only field sobriety test he was given. Additionally, Rivera admitted to having two alcoholic drinks before driving. Despite Rivera's breath test result being below the legal limit, a reasonable factfinder could infer that Rivera was intoxicated. Thus, the State presented sufficient evidence that Rivera was intoxicated.

[10] Second, Rivera argues that the State failed to provide sufficient evidence to establish that he was operating the vehicle while intoxicated. To operate is defined in the Indiana Code as “to navigate or otherwise be in actual physical control of a vehicle ․” I.C. § 9-13-2-117.5. Whether a person operated a stationary or parked vehicle can be answered by circumstantial evidence, thus the State does not have to prove movement of the vehicle. Mordacq v. State, 585 N.E.2d 22, 24 (Ind. Ct. App. 1992). To determine whether a person operated a vehicle, the following factors are considered: (1) whether the person in the vehicle was asleep or awake; (2) whether the motor was running; (3) the location of the vehicle and how the vehicle arrived at that location; and (4) the intent of the person behind the wheel. Collins v. State, 835 N.E.2d 1010, 1017 (Ind. Ct. App. 2005).

[11] In support of his argument, Rivera relies on Flanagan v. State, 832 N.E.2d 1139 (Ind. Ct. App. 2005) where the conviction was reversed as there was no evidence indicating how long a vehicle sat before the officer encountered it with the defendant standing outside. Rivera also relies upon Gatewood v. State¸ 921 N.E.2d 45 (Ind. Ct. App. 2010) where intoxication at the time of operating the vehicle could not be inferred, due to the driver being unobserved for nearly an hour prior to the officer's arrival.

[12] However, unlike Flanagan and Gatewood, here the State provided ample circumstantial evidence from which a reasonable fact finder could conclude Rivera operated the vehicle while he was intoxicated. Indeed, Rivera was asleep behind the wheel while the vehicle was running, in gear, and sitting stationary, in the westbound lane of traffic while facing eastbound. The present case is more similar to Ramirez-Vera v. State, 144 N.E.3d 735, 740 (Ind. Ct. App. 2020), where this court found that a defendant asleep in her vehicle with its engine running while stopped on the travel portion of the road was sufficient evidence to conclude that the defendant was operating the vehicle, and Winters v. State, 132 N.E.3d 46 (Ind. Ct. App. 2019), where a defendant found asleep in a running vehicle on the travel portion of the roadway was sufficient evidence to find that a defendant was operating the vehicle.

[13] In addition, Rivera admitted he had been driving the vehicle, testifying that he was driving home from work, despite being found about ten miles east from where he stated he was heading. Finally, Rivera admitted to drinking some alcoholic beverages prior to driving and claimed he does not remember falling asleep or how he got to the location where the Officers found him. The State presented sufficient evidence for a reasonable factfinder to infer that Rivera was operating the vehicle while intoxicated.

[14] Finally, Rivera contends that the State failed to present sufficient evidence that his operation of the vehicle endangered a person. Endangerment of a person can be established by “evidence showing that the defendant's condition or operating manner could have endangered any person, including the public, the police, or the defendant.” Outlaw v. State, 918 N.E.2d 379, 381 (Ind. Ct. App. 2009), opinion adopted, 929 N.E.2d 196 (Ind. 2010). Additionally, more than mere intoxication is required to satisfy the endangerment element of the statute. A.V. v. State, 918 N.E.2d 642, 645–46 (Ind. Ct. App. 2009).

[15] Here, Rivera's vehicle was stopped facing the opposite lane of traffic, which required at least three vehicles to move over into the oncoming lane of traffic to avoid colliding with Rivera's vehicle. In addition, Rivera was found asleep behind the wheel with the vehicle in gear and running. Both the location of Rivera's vehicle and leaving the car in gear while asleep presented a substantial risk of harm or injury to either Rivera or other motorists. Thus, the evidence was sufficient to prove that Rivera's condition and operation of the vehicle endangered either Rivera or the public.

[16] Considering the evidence most favorable to the trial court's judgment, we, therefore, conclude that sufficient evidence was presented to support Rivera's conviction for operating while intoxicated endangering a person, as a Class A misdemeanor.

[17] Affirmed.

FOOTNOTES

1.   Ind. Code § 9-30-5-2(a), (b).

Foley, Judge.

Kenworthy, J. and Scheele, J., concur.