Corl v. StateCorl v. State
- Reporters:
- , ,
- Before:
- Miller
Dеfendant-appellant Timothy L. Corl was convicted in the Marshall Superior Court of operating a motor vehicle while intoxicated, as a Class D felony, in violation of IND. CODE § 9-11-2-8. He appeals his conviction claiming the evidence is insufficient to sustain his conviction. 1
FACTS .
When reviewing a claim of insufficient evidence this court will not reweigh the evidence or judge the credibility of witnesses, and will consider only that evidence most favorаble to the State to determine whether the crime was proven beyond a reasonable doubt. Taylor v. State (1987), Ind., 514 N.E.2d 290, 291; Lilly v. State (1987), Ind., 506 N.E.2d 23, 24; Hiegel v. State (1989), Ind.App., 538 N.E.2d 265. If there is substantial evidence of probative value to support the trial court‘s judgment we will not disturb it. Id.
The facts established at trial are as follows: In the early morning hours of December 11, 1986 Officer Mark Beam of thе Bremen Police Department received a radio dispatch that a subject was sleeping in a mоtor vehicle parked in a municipal parking lot adjacent to a tavern. At approximately 1:80 A.M. Officer Beam found Corl asleep in his motor vehicle with the bottom half of his body behind the steering wheel and the uрper portion of his torso lying across the front seat. The lights of the vehicle were on and the engine wаs running. The car was parked in a city parking lot adjacent to a tavern in the town of Bremen, Indiana. At trial, Cоrl testified that after consuming alcoholic beverages at the tavern, he got into his car, started the engine and fell asleep while waiting for the vehicle to warm up. The owner of the tavern testified that Corl was in his establishment until around midnight. The results of a. breathalyzer test revealed a blood alcohol content (BAC) of .16%.
DECISION
On appeal Corl claims the evidence is insufficient to prove he “operated” his motor vehiсle. As the facts of the present case are almost identical to this court‘s recent opinion in Eegel, supra, we agree with Corl and reverse his conviction.
In Heigel, a defendant was found asleep behind the steering wheel of his car with the driver‘s seat reclined to an almost supine position. The car was рarked in the parking lot of a tavern with the lights on and the engine running. A breathalyzer test indicated Hiegel‘s BAC was .14%. Hiegel was convicted of operating a motor vehicle while intoxicated and he appealed.
Showing thаt the defendant merely started the engine of the vehicle is not sufficient evidence to sustain a conviction for operating a vehicle while intoxicated. There must be some direct or cireumstan-tial evidence to show that defendant had operated the vehicle. Id. at 268.
In reaching this decision the Hege! court distinguished similar cases where defendants’ convictions for operating a motor vehicle while intoxicated have been upheld on appeal, noting that in these cases, additional cireumstances were present indicating the drivers had, in fact, driven their vehicles while intoxicated. See Huey v. State (1987), Ind.Apр., 503 N.E.2d 623; Garland v. State (1983), Ind.App., 452 N.E.2d 1021; Rose v. State (1976), 168 Ind.App. 674, 345 N.E.2d 257; Bowlin v. State (1975), 164 Ind.App. 693, 330 N.E.2d 353. See also, Traxler v. State (1989), Ind.App., 538 N.E.2d 268 (cireumstantial evidence that defendant had driven his vehicle while intoxicated in arriving at the locatiоn where he was found by police).
Recapping the facts of the case before us, we note Corl was found asleep in his motor vehicle with the bottom half of his body behind the steering wheel and the upper рortion of his torso lying across the front seat. The car was parked in a city parking lot adjacent tо a tavern with the lights on and the engine running. Corl admitted that he had consumed alcoholic beverages while in the tavern and stated that he had fallen asleep while waiting for his vehicle to warm up. Here, there is no infеrence nor other cireumstance indicating that Corl operated his vehicle. Under Hie-gel, supra, thе fact that Corl started the engine is insufficient evidence to sustain his conviction for operating a vehicle while intoxicated. Accordingly, we reverse Corl‘s conviction.
CHEZEM, P.J., concurs in result. Conover, J., concurs.
Notes
. As a perfunctory matter we note Corl and the Marshall County prosecuting attorney attempted to present this cause on appeal by an “Agreed Statement of the Case” pursuant to our rule of procedure, Appellate Rule 7.3. Howеver, the “Agreed Statement” was not properly certified by the clerk of the trial court as required by the rulе. The State suggested in its brief that this court could not review the issue of sufficiency as Corl had failed to properly present the record on appeal. However, upon order and writ of certiorari, the сlerk of the Marshall Superior Court has properly certified and transmitted the “Agreed Statement” to this court. Therefore, we will address Corl‘s appeal on the merits.