Pursuan t 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 est ablishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE :

JOEL M. SCHUMM GREGORY F. ZOELLER MATTHEW P. HAYES Attorney General of Indiana Certified Legal Intern Appellate Clinic RICHARD C. WEBSTER Indiana University Robert H. McKinney Deputy Attorney Genera l School of Law Indianapolis, Indiana Indianapolis, Indiana



## IN THE

COURT OF APPEALS OF INDIANA

DARVELLE WHITE, ) ) Appellant

- Defendant, ) )

vs. ) No. 49A02

- 1307

- CR

- 623 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff. )

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Amy Barbar
, Magistrate Cause No. 49F19

- 1208

- CM

- 53777

April 2, 2014

MEMORANDUM DECISION

- NOT FOR PUBLICATION

CRONE, Judge2



### Darvelle White challenges the sufficiency of the evidence supporting his convict ion

for class A misdemeanor operating a vehicle while intoxicated (“OWI”). We affirm.

The facts most favorable to the jury’s verdict are that at approximately 1:50 a.m. on

August 5, 2012, Beech Grove Police Officer David Parker was driving westbound in a

residential neighborhood when he saw a two

- door car traveling eastbound at approximately

twice the legal speed limit

. As Officer Parker turned his vehicle around to stop the car for

speeding , he saw the car pul l to the side of the street and park. Withi n three seconds after the

car stopped , White exited the driver’s

- side door with keys 1 

### in his hand, staggered, and

“hurried to the other side of the street[.]” Tr. at 39. Officer Parker ordered him to stop.

White , who lived on that street, asked the offi cer why he was “bothering him ” and said , “ I’m

not driving any more, why are you stopping me[?]” Id

. White’s breath smelled of alcoholic

beverage, his speech was “thick and slurred[,]” and his eyes were “watery.” Id . at 40. White

was uncooperative, so O fficer Parker handcuffed him and called for assistance. Officer

Parker noticed a female sitting in the car’s front passenger seat. When Major Tom Hurrle

arrived, Officer Parker administered three sobriety tests to White, which he failed. Major

Hurrle ad ministered a portable breath test, which detected alcohol. Officer Parker arrested

White for OWI.

1 The State says that “Officer Parker observed that [White] was holding his car keys.” Appellee’s Br. at 3 (citing Tr. at 40). In fact, Officer Parker testified that he “didn’t confirm” that the k eys were White’s car keys, Tr. at 78, and White claimed that they were his house keys, which were not attached to his car keys. Id

. at 163. Although the jury was entitled to disbelieve White’s testimony and draw the reasonable inference that he was holdi ng his car keys, we caution the State to avoid misrepresenting the record.3



### White refused to take a chemical breath test, so Officer Parker obtained a warrant for a

blood draw, which was performed at a hospital. As Officer Parker was transporting White

from the hospital to the arrestee processing center, White said that he “just could not

understand why [the officer] was wasting [his] time on him, when there [were] other

robberies and other more serious crimes. [White] was already parked and he wasn’t driving

any more.” Id . at 59. According to Officer Parker, White “never said that he wasn’t driving.

He said that now he was done driving [the officer] shouldn’t be wasting [his] time on him.”

Id . at 77. At the processing center, White became unruly and had to be subdued by several

officers. The blood draw revealed a blood alcohol content of 0.16 percent. The State

charged White with class A misdemeanor OWI and class A misdemeanor resisting law

enforcement. At trial, White claim ed that his passenger had driven the car and that he had

exited the car from the back seat. The jury found him guilty as charged.

On appeal, White challenges the sufficiency of evidence supporting his OWI

conviction, claiming that the State failed to pro ve that he was the driver of the car . Our

standard of review is well settled.

When considering a challenge to the sufficiency of the evidence, we neither reweigh the evidence nor judge the credibility of witnesses. Instead, we will consider only the prob ative evidence and the reasonable inferences that may be drawn therefrom in support of the verdict. If the probative evidence and reasonable inferences could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt, t he conviction must be affirmed. A conviction may be based entirely on circumstantial evidence. The circumstantial evidence need not overcome every reasonable hypothesis of innocence; rather, the evidence is sufficient if an inference may reasonably be dr awn from it to support the verdict.4



### Mendoza v. State , 869 N.E.2d 546, 554 (Ind. Ct. App. 2007) (citations omitted), trans.

denied

. Although it is true, as White observes, that Officer Parker never actually saw him

driving the car, the foregoing circumsta ntial evidence favorable to the verdict was more than

sufficient for a reasonable factfinder to determine beyond a reasonable doubt that he did.

White’s argument is merely an invitation to reweigh evidence and judge witness credibility,

which we will not do. Therefore, we affirm his OWI conviction.

Affirmed.

BAKER, J., and BARNES, J., concur.