Kerry L. Bush v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Feb 18 2020, 8:37 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Chad A. Montgomery Curtis T. Hill, Jr. Montgomery Law Office Attorney General of Indiana Lafayette, Indiana Robert L. Yates Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Kerry L. Bush, February 18, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-1639 v. Appeal from the Warren Circuit Court State of Indiana, The Honorable Hunter Reece, Appellee-Plaintiff, Judge Trial Court Cause No. 86C01-1804-F6-37

Robb, Judge. Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020 Page 1 of 13

Case Summary and Issues [1] A jury found Kerry Bush guilty of operating a vehicle while intoxicated

(“OWI”) and operating a vehicle with an alcohol concentration equivalent

(“ACE”) to .08 or more, both Class C misdemeanors, and operating a vehicle

with suspended driving privileges and a prior conviction (“operating while

suspended”), a Class A misdemeanor.1 The trial court subsequently found that

Bush had a prior conviction for OWI within the past five years so as to elevate

the Class C misdemeanors to Level 6 felonies and further found Bush to be an

habitual vehicular substance offender. The trial court sentenced Bush to two

years for the OWI conviction enhanced by seven years due to his habitual

vehicular substance offender status, to be served in the Indiana Department of

Correction, with four years suspended to probation.2 Bush appeals and raises

two issues for our review, which we restate as: 1) whether there is sufficient

evidence to show that he “operated” a vehicle, and 2) whether his nine-year

sentence is inappropriate in light of the nature of his offenses and his character.

Concluding that there is sufficient evidence to support his convictions and his

sentence is not inappropriate, we affirm.

1 Operating a motor vehicle on a highway with suspended driving privileges is a Class A infraction. Ind. Code § 9-24-19-1. If a person knows their driving privileges are suspended and operates a motor vehicle on a highway less than ten years “after the date on which judgment was entered against the [person] for a prior unrelated violation of section 1,” the offense is a Class A misdemeanor. Ind. Code § 9-24-19-2. 2 The trial court vacated the operating with an ACE of .08 or more conviction over double jeopardy concerns and did not sentence Bush to any time for the operating while suspended conviction. See Appealed Order at 3.

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Facts and Procedural History [2] Around midnight on April 20, 2019, Deputies Brennan Hutchison and Brant

Needler of the Warren County Sheriff’s Office responded to a report of a

rollover crash on State Road 55. Upon arrival, the deputies noticed “debris all

over the roadway” and a vehicle in a ditch that had its windows broken, top

crushed, and windshield shattered. Transcript, Volume 2 at 57. No one was in

the vehicle when deputies arrived, but they were eventually notified that the

vehicle belonged to Bush. Bush’s identification card and his checkbook were

also located at the scene. Because the accident “appeared to be very serious”

and “[p]otentially life threatening[,]” the deputies and other emergency

personnel began searching the area for injured individuals. Id. at 70, 72. [3] Deputy Needler located Bush three-quarters of a mile from the car lying face

down and motionless in a ditch. Deputy Needler “thought it was bad[,]” but to

his surprise, Bush immediately got up and began speaking with him. Id. at 74.

Deputy Needler observed that Bush was bleeding and had “glass shar[d]s in his

forehead[,]” and found it odd that if Bush was conscious, he had not flagged

down any of the “multiple emergency vehicles [that had gone] by with sirens[.]”

Id. Bush denied having been involved in an accident despite his physical

condition and said he did not want to be treated by emergency personnel.

Nonetheless, Deputy Needler drove Bush back to the crash site for treatment.

During the ride there, Bush told Needler that he was returning from Lafayette

and headed home. Deputy Needler identified signs of intoxication, including

that Bush smelled of alcohol and had glassy eyes and unsteady balance. Bush

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indicated that he had consumed alcohol that evening and informed Deputy

Needler that “he believe[d] he would be above the legal limit.” Id. at 90. [4] While Bush was being attended to by emergency personnel, Bush told Deputy

Needler that “Lisa,” a woman whom he had met earlier in the day, had been

driving his vehicle, not him. However, Bush could not provide any additional

information about Lisa, nor did he show any concern for her. Nevertheless,

officers searched the area for fifteen or twenty minutes looking for Lisa but

could not locate her, nor did they find any indication that someone else had

been in the vehicle. Deputies even called the local hospital, but no one had

checked in as a result of a car accident. Deputy Needler transported Bush to the

Warren County Jail for field sobriety and chemical tests. Bush failed the field

sobriety tests, and the results of his chemical test showed he had an ACE of

.13%. [5] The State charged Bush with OWI and operating a vehicle with an ACE of .08

or more, alleging on a separate page of the information that he had a prior OWI

conviction within five years of these offenses which would elevate both to Level

6 felonies. He was also charged with operating while suspended, a Class A

misdemeanor. The State later amended the charging information to add an

habitual vehicular substance offender enhancement, alleging that Bush had

accumulated two or more prior unrelated vehicular substance abuse offense

convictions. A jury found Bush guilty of OWI, operating with an ACE of .08 or

more, and operating while suspended. Bush waived his right to a jury for the

enhancement phase of the trial, and the trial court found that Bush had a

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previous OWI conviction within the past five years. The trial court also found

Bush to be an habitual vehicular substance offender. [6] At his sentencing hearing, Bush testified that he has support from his family

and has worked for nearly forty years. In determining Bush’s sentence, the trial

court considered Bush’s criminal history an aggravating circumstance and did

not find any mitigating circumstances. The trial court entered judgment of

conviction for OWI as a Level 6 felony and operating while suspended. The

trial court sentenced Bush to nine years: two years for OWI, enhanced by seven

years due to his habitual vehicular substance offender status, with four years

suspended to probation. Bush now appeals.

Discussion and Decision I. Sufficiency of the Evidence A. Standard of Review [7] Bush challenges the sufficiency of the evidence to support his convictions of

Level 6 felony OWI and Class A misdemeanor operating while suspended. Our

standard of review in this area is well-settled: when reviewing the sufficiency of

the evidence to support a conviction, we do not reweigh the evidence or judge

the credibility of the witnesses. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.

2009). Rather, we consider only the evidence supporting the verdict and any

reasonable inferences drawn therefrom. Id. Thus, we consider conflicting

evidence “most favorably to the [verdict].” Drane v. State, 867 N.E.2d 144, 146

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(Ind. 2007) (internal quotations omitted). “We will affirm if there is substantial

evidence of probative value such that a reasonable trier of fact could have

concluded the defendant was guilty beyond a reasonable doubt.” Bailey, 907

N.E.2d at 1005.

B. “Operating” a Vehicle [8] To convict Bush of OWI as a Level 6 felony, the State had to prove beyond a

reasonable doubt that Bush: 1) operated a vehicle; 2) while intoxicated; and 3)

while having a prior conviction of operating while intoxicated that occurred

within the last five years. See Ind. Code §§ 9-30-5-2(a), 9-30-5-3(a)(1) (2014).

Similarly, to convict Bush of operating a vehicle with suspended driving

privileges as a Class A misdemeanor, the State had to prove that Bush 1) knew

his driving privileges were suspended; and 2) operated a motor vehicle upon a

highway; 3) with a prior unrelated conviction for operating while suspended

within the last ten years. Ind. Code § 9-24-19-2. Bush claims only that the State

failed to prove beyond a reasonable doubt that he “operated” his vehicle. See

Tr., Vol. 2 at 123; Appellant’s Brief at 12. [9] The Indiana Code defines “operate” as “to navigate or otherwise be in actual

physical control of a vehicle[.]” Ind. Code § 9-13-2-117.5. Whether a defendant

has “operated” a vehicle is a question of fact to be determined by examining the

surrounding circumstances. Custer v. State, 637 N.E.2d 187, 188 (Ind. Ct. App.

1994). We have considered the following factors in assessing whether a person

has operated a vehicle: 1) the location of the vehicle when discovered; 2)

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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. This is not an

exclusive list and therefore, “[a]ny evidence that leads to a reasonable inference

should be considered.” Id. [10] In support of his argument that the State offered insufficient evidence that he

“operated” the vehicle, Bush relies on Mordacq v. State, 585 N.E.2d 22 (Ind. Ct.

App. 1992). There, an officer observed a vehicle parked alongside the road with

its engine running. An hour later, the officer returned to find that the vehicle

was still there, and that the defendant was asleep in the driver’s seat with the

engine still running. After the defendant was awakened, the officer noticed the

odor of alcohol on the defendant’s breath. The defendant told the officer that

she had driven to that area at least two hours earlier, but there was no other

evidence as to how or when the vehicle arrived at that location. The defendant

was convicted of operating a vehicle with a blood alcohol content over the legal

limit. A panel of this court reversed the conviction, holding that there was

insufficient evidence that the defendant had operated her vehicle, in part,

because there was “no evidence that [her] car was stopped in the travel portion

of the roadway[; the officer] consistently used the word ‘parked.’” Id. at 24

(comparing cases finding “operation” where defendant was found behind the

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wheel of a running vehicle in the median of a highway, at an intersection, and

stopped in a lane of traffic).3 [11] Mordacq is clearly distinguishable. Deputies Needler and Hutchinson located

Bush’s severely damaged rolled vehicle in a ditch, not simply parked alongside

the roadway like in Mordacq. Although Bush was not in the vehicle when it was

discovered, Bush was found nearby. He insisted that he had not been in an

accident, but he was injured, the vehicle was registered to him, and his personal

effects were found in and around the vehicle. He told Deputy Needler that he

was returning home from Lafayette and only after several minutes had passed

did he mention that someone else had been driving the vehicle. However, no

evidence was found to support his assertion that there was another person in the

car. From the location of Bush’s vehicle, his physical condition, and the lack of

evidence of a second person, it can be inferred that Bush was in actual physical

control of his vehicle when it left the highway and rolled into the ditch and that

he met the statutory definition of “operate.” Bush’s argument that we should

conclude otherwise is merely a request for us to reweigh the evidence, which we

will not do. See Bailey, 907 N.E.2d at 1005. Therefore, the State proved beyond

a reasonable doubt that Bush “operated” a vehicle.

3 Mordacq was decided before the definition of “operating” was added to the Indiana Code, and the court therefore deduced the meaning of “operating” from the statutory definition of “operator.” 585 N.E.2d at 23 (citing Ind. Code § 9-13-2-118(a)(1) (1991)).

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II. Inappropriate Sentence A. Standard of Review [12] We may review and revise criminal sentences pursuant to the authority derived

from Article 7, section 6 of the Indiana Constitution. Indiana Appellate Rule

7(B) empowers us to revise a sentence “if, after due consideration of the trial

court’s decision, [we] find[] that the sentence is inappropriate in light of the

nature of the offense and the character of the offender.” Therefore, when

reviewing a sentence, we give deference to the trial court’s sentencing decision

because Rule 7(B) requires us to give “due consideration” to the decision and

we recognize the unique perspective of the trial court in making sentencing

decisions. Stewart v. State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). “Such

deference should prevail unless overcome by compelling evidence portraying in

a positive light the nature of the offense . . . and the defendant’s character[.]”

Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Our principal role in Rule

7(B) review is to “leaven the outliers[.]” Cardwell v. State, 895 N.E.2d 1219,

1225 (Ind. 2008). [13] The defendant carries the burden to persuade us that the sentence imposed by

the trial court is inappropriate, Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006), and we may look to any factors appearing in the record in making such a

determination, Reis v. State, 88 N.E.3d 1099, 1102 (Ind. Ct. App. 2017). The

question under Rule 7(B) is “not whether another sentence is more appropriate;

rather, the question is whether the sentence imposed is inappropriate.” King v.

State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Court of Appeals of Indiana | Memorandum Decision 19A-CR-1639 | February 18, 2020 Page 9 of 13

B. Nature of the Offense [14] We begin our analysis of the nature of the offense with the advisory sentence,

which is the starting point selected by the legislature as an appropriate sentence.

Reis, 88 N.E.3d at 1104. Bush was convicted of OWI as a Level 6 felony,

operating while suspended as a Class A misdemeanor, and was found to be an

habitual vehicular substance offender. The advisory sentence for a Level 6

felony is one year, with a minimum sentence of six months and a maximum

sentence of two and one-half years. Ind. Code § 35-50-2-7(b). The maximum

sentence for a Class A misdemeanor is one year. Ind. Code § 35-50-3-2. The

minimum sentence enhancement for a person found to be an habitual vehicular

substance offender is one year and the maximum enhancement is eight years.

Ind. Code § 9-30-15.5-2(d). Bush was sentenced to two years for his Level 6

felony conviction and no years for his Class A misdemeanor; his sentence was

enhanced by seven years due to his habitual vehicular substance offender status.

Although Bush’s sentence for the Level 6 felony conviction and the

enhancement for the habitual offender status were above the minimum, they

still fell short of the maximum sentence allowed. [15] The nature of the offense is found in the details and circumstances surrounding

the offense and the defendant’s participation therein. Perry v. State, 78 N.E.3d 1,

13 (Ind. Ct. App. 2017). Bush has not offered an argument regarding the nature

of his offenses; however, they are serious. Bush drove his vehicle with an ACE

of .13%, which is well above the legal limit of .08% in Indiana. Not only did

Bush drive while intoxicated, he drove in a manner that caused his vehicle to

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roll into a ditch, causing substantial damage to his vehicle and injury to himself.

Bush did not wait for emergency assistance; rather, he tried to escape

responsibility by leaving the scene of a serious accident and seemed to be hiding

from emergency personnel. Bush’s irresponsible actions could have endangered

other individuals driving on the road or even killed them. Bush’s actions show a

disregard for others and nothing about the nature of his offenses leads us to

believe that his sentence is inappropriate.

C. Character of the Offender [16] A defendant’s life and conduct are illustrative of his character. Washington v.

State, 940 N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. One relevant

factor in assessing character is a defendant’s criminal history. Rutherford v. State,

866 N.E.2d 867, 874 (Ind. Ct. App. 2007). The significance of criminal history

varies based on the gravity, nature, and number of prior offenses in relation to

the current offense. Id. Bush has a criminal record dating back to 1997. Bush’s

criminal history consists of two prior convictions for operating a vehicle while

intoxicated as Class A misdemeanors; two prior convictions for operating while

intoxicated with a prior conviction, both felonies; public intoxication, a Class B

misdemeanor; possession of marijuana, domestic battery, resisting law

enforcement, and three driving while suspended convictions, all Class A

misdemeanors; and one prior habitual vehicular substance offender

determination in 2015. Bush has been placed on and violated probation

multiple times and was on probation at the time he committed the instant

offense. The nature of many of Bush’s prior offenses are similar to the instant

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offenses, and despite his numerous contacts with the justice system, he was not

deterred from committing the current offenses. [17] Further, Bush attempted to cover up his crime by evading law enforcement and

fabricating a story. When officers located Bush, he was face down in a ditch

three-quarters of a mile away from the accident. He made no attempt to flag

down passing emergency vehicles, even in light of his physical condition. This

indicates that Bush likely fled the scene with the intention of escaping

punishment. Even after being discovered, Bush repeatedly told Deputy Needler

that he was not involved in an accident despite clearly being injured. Although

Bush initially told Deputy Needler that he was returning home from Lafayette,

several minutes later, Bush claimed that a woman whom he had met that day

drove his vehicle. However, Bush could not provide Deputy Needler with any

details about this woman, nor did he show any concern for her well-being.

Despite searching the area and calling local hospitals, deputies did not locate

the woman or find anything belonging to her that would indicate she had been

with Bush. [18] In an attempt to portray his character in a positive light, Bush emphasizes that

he has support from his family and has held a job for nearly forty years;

however, we are unpersuaded that family support and steady employment

overcome his significant criminal history and the serious nature of his current

offenses. Accordingly, Bush has failed to establish that his character renders his

sentence inappropriate.

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Conclusion [19] The State presented sufficient evidence to support Bush’s convictions for OWI

and operating while suspended, and Bush’s sentence is not inappropriate in

light of the nature of his offenses and his character. Accordingly, we affirm. [20] Affirmed.

Bradford, C.J., and Altice, J., concur.

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