Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020 Page 1 of 10

MEMORANDUM DECISION

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.

ATTORNEY FOR APPELLANT

Paula M. Sauer

Danville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Steven J. Hosler

Deputy Attorney General

Indianapolis, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Tywun Johnson,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

March 13, 2020

Court of Appeals Case No.

19A-CR-2476

Appeal from the Hendricks 

Superior Court

The Honorable Mark A. Smith, 

Judge

Trial Court Cause No.

32D04-1807-CM-987

Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2476 | March 13, 2020 Page 2 of 10

Case Summary

[1] Tywun Johnson (“Johnson”) appeals his convictions for operating a vehicle 

while impaired, endangering a person, as a Class A misdemeanor,1 and driving 

while suspended, a Class A misdemeanor.2 Johson raises three issues on 

appeal, which we restate as the following dispositive issue: whether the State 

presented sufficient evidence to support his convictions.

[2] We affirm.

Facts and Procedural History

[3] On July 19, 2018, the State charged Johnson with Count I, operating a vehicle 

while intoxicated endangering a person, as a Class A misdemeanor, and Count 

II, driving while suspended, a Class A misdemeanor. On October 8, 2018, the 

court granted the State’s motion to add Count III, operating a vehicle with an 

ACE of .15 or more, as a Class A misdemeanor.3Johnson waived his right to 

trial by jury, and the court conducted a bench trial on August 27, 2019. At trial, 

the parties stipulated to the admission of certified test results establishing that, 

on July 19, 2018, Johnson had an alcohol concentration equivalent (“ACE”) of 

.267, and Johnson’s driving record, which established that his license was 

1

 Ind. Code § 9-30-5-2(a) & (b).

2

 I.C. § 9-24-19-2.

3

 I.C. § 9-30-5-1(b).
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suspended on the night of July 18, 2018. The parties stipulated that all elements 

of Count I and II other than the “operating” element were met. Tr. at 6.

[4] At the bench trial, the following testimony and other evidence was presented: 

Late at night on July 18, 2018, Wyatt Kintner (“Kintner”) was driving his truck 

down the eastbound right lane on Interstate 74 (“I-74”) near the Brownsburg 

exit for Indiana State Road 267 when he saw dust being kicked up and a car’s 

headlights flashing in different directions on the westbound lanes of I-74. 

Kintner then saw a car in the westbound lanes of I-74 drive into the median and 

crash into the guardrail. He slammed on his brakes and saw the crashing 

vehicle come to a rest with part of it on the median and part of it in the lefthand lane of westbound I-74.

[5] Kintner parked his vehicle at the side of I-74 eastbound, exited, and crossed the 

median to reach the crash location. At some point during that time, he called 9-

1-1. It took Kintner about thirty seconds from the time he parked his vehicle to 

the time he reached the crash location, and he did not “have [his] eyes on the 

[crashed] car that entire time. Tr. at 21-22. As he approached the crashed car, 

he noticed Jairus Baird (“Baird”), who “appeared to be in a stupor,” walking 

around in a circular pattern near the center, dotted line dividing the two

westbound lanes. Id. at 10. Traffic was still passing on the outer westbound 

lane. Kintner, fearing for Baird’s safety, tried to help Baird away from traffic.

Kintner then heard the crashed car’s engine begin to rev, and he looked over at 

the car and “realized there was someone still sitting there behind the wheel” of 
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the car. Id. at 11. The person sitting in the driver’s seat was later identified as 

Johnson.

[6] Kintner then went to the driver’s side of the crashed car. At some point, the 

driver’s side door was opened, but Kintner did not recall if he opened it or if 

someone else opened it. It appeared to Kintner that Johnson was “trying to 

drive” but the damage to the car was preventing him from doing so. Id. at 12. 

Kintner did not know whether the car was in gear while Johnson was revving 

the engine or whether Johnson was wearing a seat belt. He did not see any 

airbags deployed. The car had damage to the front window, but there was no 

evidence that either Baird or Johnson had any kind of head injury.

[7] Kintner leaned into the driver’s side of the car and told Johnson to turn off the 

engine. Johnson did not respond to Kintner, and Kintner smelled alcohol on 

Johnson. At that point, Kintner noticed that Baird had followed him to the car. 

Kintner became concerned that he might upset Johnson and Baird, so he

backed away from the crashed car and began to help direct traffic around it to 

prevent another crash. After he backed away from the car, Kintner became 

aware of a third individual walking on the shoulder of the median, westbound, 

away from the crashed car.

[8] While Kintner was attempting to direct traffic, Officer Michael Gillman 

(“Officer Gillman”) of the Brownsburg Police Department (“BPD”) arrived. 

Kintner informed Officer Gillman that the car had crashed and the occupants of 

the car had “[taken] off running westbound.” Id. at 37. Officer Gillman then 
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noticed one individual running westbound, and Officer Gillman pursued in his 

vehicle. Officer Gillman caught up with Baird and was questioning him when 

he heard someone rustling in the trees along the embankment. Officer Gillman 

yelled for the person to come out of the trees, and Johnson eventually did so. 

Johnson and Baird informed Officer Gillman that a woman had also been in 

the car with them. Both individuals appeared to Officer Gillman to be 

intoxicated. Johnson’s speech was slurred, he was “incomprehensible for the 

most part,” and Officer Gillman “could not understand what [Johnson] was 

telling [him].” Id. at 42. Johnson and Baird began to argue about who had 

been driving the car when it crashed, but Officer Gillman could not determine 

from that conversation which of them had actually been driving.

[9] Meanwhile, Officer Christopher Nelson (“Officer Nelson”) of the BPD had 

arrived at the scene and was questioning Kintner. By that time, no suspects 

were at the scene and it appeared to Officer Nelson that “everyone had fled the 

vehicle.” Id. at 30. Officer Nelson wore a body camera while at the scene

which recorded his interactions there. The DVD from that body camera was 

admitted into evidence, without objection, as State’s Exhibit 3 and was played 

for the trial court. The DVD recorded Officer Nelson’s interview of Kintner at 

the scene. In the DVD, Kintner confirmed that he was “one hundred percent 

positive” that Johnson was “the driver” and stated that Johnson “couldn’t 

communicate properly” when Kintner had asked him to turn off the car engine. 

State’s Ex. 3 at 6:29. Officer Gillman brought Johnson and Baird back to the 

scene of the crash, where Kintner identified Johnson as the driver. The BPD 
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did not investigate further into the identity of the woman who had allegedly 

also been in the car when it crashed. The State did not present evidence of who 

owned the crashed car or to whom it was registered.

[10] Following the bench trial, the trial court found Johnson guilty of Counts I and 

II. In reaching that determination, the trial court specifically found that 

Johnson operated the vehicle at the time “it left the roadway.” Tr. at 55. The 

court stated: “based upon that level of intoxication I don’t find it reasonable 

that he would have had enough judgment, control over his faculties to be able 

to decide in that moment I need [leave the passenger seat] to move this vehicle 

because it’s a necessity, it’s an emergency and that just doesn’t make logical 

common sense to me.” Id. The court also found Johnson guilty of Count III 

but vacated that conviction on double jeopardy grounds. The court sentenced 

Johnson to identical sentences of 365 days incarceration with 363 days 

suspended for each count and ordered the sentences to run concurrently. This 

appeal ensued.

Discussion and Decision

[11] Johnson challenges the sufficiency of the evidence to support his convictions. 

Specifically, he contends that the evidence did not prove that he was driving the 

vehicle when it crashed; rather, he contends the evidence showed that he could 

have moved out of one of the passenger seats and into the driver’s seat in order 

to move the car when he realized it was in the way of on-coming traffic after it 

crashed. 
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[12] Our standard of review of the sufficiency of the evidence is well-settled.

When an appellate court reviews the sufficiency of the evidence 

needed to support a criminal conviction, it neither reweighs 

evidence nor judges the credibility of witnesses. Bailey v. State, 

907 N.E.2d 1003, 1005 (Ind. 2009). The appellate court only 

considers “the evidence supporting the judgment and any 

reasonable inferences that can be drawn from such evidence.” Id.

(quoting Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)). A 

conviction will be affirmed if there is substantial evidence of 

probative value supporting each element of the offense such that 

a reasonable trier of fact could have found the defendant guilty 

beyond a reasonable doubt. Bailey, 907 N.E.2d at 1005. A 

[determination] of guilt may be based upon an inference if 

reasonably drawn from the evidence. See Drane v. State, 867 

N.E.2d 144, 147 (Ind. 2007).

Tin Thang v. State, 10 N.E.3d 1256, 1258 (Ind. 2014). 

[13] Thus, it is not necessary that the evidence 

overcome every reasonable hypothesis of innocence; ... Drane v. 

State, 867 N.E.2d 144 (Ind. 2007). Accordingly, the question on 

appeal is whether the inferences supporting the [judgment] were 

reasonable, not whether other, “more reasonable” inferences 

could have been drawn. Thompson v. State, 804 N.E.2d 1146, 

1150 (Ind. 2004). Because reaching alternative inferences is the 

function of the trier of fact, we may not reverse a conviction 

merely because a different inference might plausibly be drawn 

from the evidence. [Id.].

Jones v. State, 22 N.E.3d 877, 879 (Ind. Ct. App. 2014).
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[14] To support Johnson’s convictions of operating a vehicle while impaired, 

endangering a person, as a Class A misdemeanor, and driving while suspended, 

the State was required to prove, among other things, that Johnson operated a 

vehicle. Johnson challenges only the sufficiency of the evidence to prove that 

he “operated” the vehicle that day. To prove that one “operated” a vehicle, 

“there must be some direct or circumstantial evidence” to show that the person 

expended effort to “perform a function ... or produce an effect.” Henderson v. 

State, 108 N.E.3d 407, 414 (Ind. Ct. App. 2018) (quotation and citation 

omitted). When determining whether a defendant operated a vehicle, we 

consider several factors, 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 .... In addition to these four factors, any 

evidence that leads to a reasonable inference should be 

considered. 

Crawley v. State, 920 N.E.2d 808, 812 (Ind. Ct. App. 2010) (quotation and 

citations omitted), trans. denied. However, “the State does not have to prove 

movement of the car” in order to show the defendant operated it. Henderson, 

108 N.E.3d at 414. Thus, in Crawley, we found that it was “of no moment that 

nobody observed Crawley operate the motor vehicle” where the State presented 

sufficient circumstantial evidence from which a reasonable trier of fact could 

infer beyond a reasonable doubt that Crawley did so. Id.; see also, e.g., Wilkinson 

v. State, 70 N.E.3d 392, 401-02 (Ind. Ct. App. 2017) (holding circumstantial 
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evidence was sufficient to prove operation of car even when no one witnessed 

the defendant driving the car). 

[15] Here, there was no testimony from anyone who saw Johnson driving the car. 

However, Johnson was the only one the witness saw sitting in the driver’s seat 

following the crash. The State presented evidence that Johnson was extremely 

intoxicated, with an ACE of .267—over three times the legal limit for operation 

of a vehicle.

4

 And both Kintner and Officer Gillman testified that Johnson 

appeared to be intoxicated and was unable to communicate at the scene of the 

crash. Given that evidence of Johnson’s extreme intoxication, the trial court 

found it implausible that Johnson would have had the judgment or control over 

his faculties to decide to move from a passenger’s seat to the driver’s seat for the 

purpose of moving the car out of the lane of traffic. That is, the court 

reasonably inferred from the circumstantial evidence of Johnson’s extreme 

intoxication and his location in the driver’s seat following the crash that 

Johnson was the driver when the vehicle crashed into the median and he simply 

remained in the driver’s seat until Kintner found him there. Johnson’s 

contention that one could also reasonably reach a different inference is a request 

that we reweigh the evidence, which we cannot do. Jones, 22 N.E.3d at 879.

5

4

 I.C. § 9-30-5-1.

5

 Because we conclude that the evidence was sufficient to show that Johnson operated the car at the time it 

crashed, we need not address whether he operated the car when he attempted to move it out of the lane in 

which it had stopped or whether he did so out of necessity.
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[16] The State presented sufficient evidence to show that Johnson “operated” the 

vehicle at the time it crashed and therefore committed one count each of the 

crimes of operating a vehicle while intoxicated endangering a person and 

driving while suspended, both as Class A misdemeanors.

[17] Affirmed.

Kirsch, J., and Mathias, J., concur.