FOR PUBLICATION
                                                          FILED
                                                        Oct 23 2012, 8:30 am


                                                               CLERK
                                                             of the supreme court,
                                                             court of appeals and
                                                                    tax court



ATTORNEY FOR APPELLANT:                      ATTORNEYS FOR APPELLEE:

VICTORIA L. BAILEY                           GREGORY F. ZOELLER
Beech Grove, Indiana                         Attorney General of Indiana

                                             KARL M. SCHARNBERG
                                             Deputy Attorney General
                                             Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

DAVID MATHEWS,                               )
                                             )
     Appellant-Defendant,                    )
                                             )
            vs.                              )       No. 01A02-1203-CR-207
                                             )
STATE OF INDIANA,                            )
                                             )
     Appellee-Plaintiff.                     )


                    APPEAL FROM THE ADAMS CIRCUIT COURT
                      The Honorable Frederick A. Schurger, Judge
                            Cause No. 01C01-1202-FD-1



                                  October 23, 2012


                            OPINION - FOR PUBLICATION


BROWN, Judge
      David Mathews appeals his convictions for public intoxication as a class B

misdemeanor and intimidation as a class D felony and being an habitual offender.

Mathews raises two issues which we revise and restate as:

      I.     Whether the trial court abused its discretion by denying Mathews’s
             request for a mistrial; and

      II.    Whether the evidence is sufficient to sustain his conviction for
             public intoxication as a class B misdemeanor.

We affirm.

      The relevant facts follow. On May 12, 2011, Mathews worked all day for a

construction company, did not eat that day, purchased “a thirty pack of Natty Ice and a

half pint of Admiral Nelson,” and drank all of his purchases. Transcript at 189. At

around 10:00 p.m., the Adams County Sheriff’s Department dispatched Decatur Police

Officers to a disturbance in the street on Piedmont Lane in Decatur, Adams County,

Indiana, in reference to a fight or domestic issue involving Mathews. The Decatur Police

Department informed Adams County Sheriff’s Deputy Trevor Callahan, who was on his

way to the address given by dispatch, that Mathews had left the area and that Callahan

should proceed one street west of the area. Deputy Callahan went to Evergreen Lane,

which was one street west of Piedmont Lane.

      Deputy Callahan looked between “the residences on Evergreen Lane and towards

the back where Flemings Apartments would be, a few houses North,” and located

Mathews. Id. at 129. Deputy Callahan turned on his spotlight, and Mathews turned

around. Deputy Callahan yelled at Mathews, and Mathews stopped immediately and

walked toward him. Deputy Callahan handcuffed Mathews, smelled the odor of an

                                           2
alcoholic beverage when Mathews spoke, and observed that Mathews’s speech was

slurred. Based upon his experience as a jailer and a deputy, Deputy Callahan thought that

Mathews was intoxicated.

      Deputy Callahan performed an initial patdown and other officers arrived on the

scene. Initially, Mathews was cooperative, but when Deputy Callahan moved Mathews’s

backpack from the hood of his squad car so that it would not scratch the car, Mathews

became belligerent, irate, and “flew off the handle.” Id. at 131. Mathews was being

loud, cursing, “being very very vulgar,” and said that Deputy Callahan was looking

through his bag and trying to steal from him. Id. Deputy Callahan walked over to

Decatur Police Officer Jonathan Wenzel’s vehicle to place Mathews inside, and Mathews

pulled away from him so much that at one point Deputy Callahan had to restrain him

against the back of the vehicle so that officers could open the door. Deputy Callahan told

Mathews to enter the vehicle, and Mathews began taunting him and told him to put him

in the vehicle. Another officer calmed Mathews down enough so that the officers did not

have to physically place Mathews in the car.

      Officer Wenzel transported Mathews to the Adams County Jail. At some point

during the drive, Mathews became combative, kicked the cage in the squad car, began

cursing, and threatened to go to Officer Wenzel’s house and take his wife and children.

At the book-in counter, there was “some bets going on about the level of intoxication

[Mathews] would have” to keep some sort of a sense of humor so that no one would

become too upset, and Mathews “thought he [could] do better than what he did before.”

Id. at 171. At one point Mathews told Officer Wenzel that he wanted to kill him.

                                            3
       On May 16, 2011, the State charged Mathews with intimidation as a class D

felony and public intoxication as a class B misdemeanor. The charging information

alleged that Mathews was found at 211 Evergreen Lane in Adams County in a state of

intoxication. In June 2011, the State filed a notice of intent to seek habitual substance

offender status. The State filed an amended information in September 2011.

       After a jury trial before Judge Patrick Miller, Mathews was found guilty of both

counts as charged. Prior to the beginning of the habitual offender phase of the jury trial,

Mathews informed Judge Miller that he had acted as his attorney for one of the

underlying charges for the habitual offender status and requested a mistrial.        After

recessing for the evening and hearing arguments the following morning, Judge Miller

denied Mathews’s motion for mistrial.            Specifically, Judge Miller stated: “My

representation of you on an underlying offense that has never been presented to the jury

as of yet has no impact on the first phase of this trial so I will deny the request for

mistrial.” Id. at 262. Judge Miller recused himself and reassigned the case to Judge

Frederick Schurger. The jury found Mathews to be an habitual offender. The court

sentenced Mathews to two and one-half years for intimidation as a class D felony

enhanced by four years for Mathews’s status as an habitual offender, and to 180 days for

his conviction for public intoxication and ordered that it be served concurrent with his

sentence for intimidation for an aggregate sentence of six and one-half years.

                                            I.

       The first issue is whether the trial court abused its discretion by denying

Mathews’s request for a mistrial. Generally, the decision to grant or deny a motion for

                                            4
mistrial lies within the discretion of the trial court. Francis v. State, 758 N.E.2d 528, 532

(Ind. 2001). “The grant of a motion for mistrial is an extreme remedy that is warranted

only when less severe remedies will not satisfactorily correct the error.” Id. “On appeal,

the trial judge’s discretion in determining whether to grant a mistrial is afforded great

deference because the judge is in the best position to gauge the surrounding

circumstances of an event and its impact on the jury.” McManus v. State, 814 N.E.2d

253, 260 (Ind. 2004), reh’g denied, cert. denied, 546 U.S. 831, 126 S. Ct. 53 (2005).

“[T]o succeed on appeal from the denial of a mistrial, a defendant must demonstrate that

the conduct complained of was both error and had a probable persuasive effect on the

jury’s decision.” Booher v. State, 773 N.E.2d 814, 820 (Ind. 2002).

       Mathews argues that Judge Miller should have granted a mistrial because he was

required to recuse under Rule 2.11(A)(6) of the Indiana Code of Judicial Conduct and the

habitual offender enhancement is part and parcel of the underlying conviction. The State

argues that an underlying conviction phase of a trial and the habitual offender phase are

separate and distinct, there is no per se violation when a judge does not make a disclosure

of former representation, and Mathews has failed to make a showing of prejudice.

       Rule 2.11(A) of the Indiana Code of Judicial Conduct provides:

       A judge shall disqualify himself or herself in any proceeding in which the
       judge’s impartiality[] might reasonably be questioned, including but not
       limited to the following circumstances:

                                         *****

              (6)    The judge:

                     (a)    served as a lawyer in the matter in controversy,
                            or was associated with a lawyer who
                                            5
                                participated substantially as a lawyer in the
                                matter during such association;

        Under the circumstances, we cannot say that the portion of the trial addressing

Mathews’s charges for public intoxication and intimidation are the same “matter in

controversy” for purposes of disqualification or that reversal is required. See Denton v.

State, 496 N.E.2d 576, 581 (Ind. 1986) (“While in the usual habitual offender

determination the same jury hears both the felony charge and the recidivist charge in a

bifurcated proceeding, we have previously held that it is permissible for a different jury

than the one who heard the case on the underlying felony charge to determine a

defendant’s habitual offender status.”), reh’g denied; Gunter v. State, 605 N.E.2d 1209,

1210-1211 (Ind. Ct. App. 1993) (holding that while it was error for the regular judge to

disqualify himself for only the habitual phase of the trial, the error was harmless), trans.

denied. Given that Judge Miller did not serve as a lawyer in the matter in controversy,

i.e., the matter involving the public intoxication or intimidation charges, we cannot say

that Rule 2.11(A)(6) required recusal prior to the habitual offender phase of the trial or

that the trial court abused its discretion by denying Mathews’s request for a mistrial. 1

                                                   II.

        The next issue is whether the evidence is sufficient to sustain Mathews’s

conviction for public intoxication.           When reviewing claims of insufficiency of the

        1
          Mathews cites Calvert v. State, 498 N.E.2d 105 (Ind. Ct. App. 1986). In Calvert, the trial judge
appeared on two occasions for the prosecution when the case involving forgery was originally filed and
had, as the prosecutor, obtained a court order for a sample of the defendant’s handwriting which was
admitted into evidence. 498 N.E.2d at 106. On appeal, the court held that a trial judge must disqualify
himself from a proceeding in which he has actively served as an attorney for one of the parties regardless
of whether actual bias or prejudice exists. Id. at 107. Unlike Calvert, Judge Miller did not serve as an
attorney in the case involving the pending charges of public intoxication or intimidation. Thus, we do not
find Calvert instructive.
                                                    6
evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v.

State, 656 N.E.2d 816, 817 (Ind. 1995), reh’g denied. Rather, we look to the evidence

and the reasonable inferences therefrom that support the verdict. Id. We will affirm the

conviction if there exists evidence of probative value from which a reasonable trier of

fact could find the defendant guilty beyond a reasonable doubt. Id. The uncorroborated

testimony of one witness, even if it is the victim, is sufficient to sustain a conviction.

Ferrell v. State, 565 N.E.2d 1070, 1072-1073 (Ind. 1991).

       Mathews argues only that the evidence is insufficient to support his conviction for

public intoxication. The offense of public intoxication is governed by Ind. Code § 7.1-5-

1-3, which provides that “[i]t is a Class B misdemeanor for a person to be in a public

place or a place of public resort in a state of intoxication caused by the person’s use of

alcohol or a controlled substance (as defined in IC 35-48-1-9).”2               Thus, to convict

Mathews of public intoxication as a class B misdemeanor, the State needed to prove that

Mathews was in a public place or a place of public resort in a state of intoxication.

       We initially address Mathews’s argument that “there was no evidence that [he]

was in a state of intoxication” and that “the State offered no evidence regarding when the

incident giving rise to the dispatch occurred, when Mathews was drinking in relation to

that time, when Mathews left the Piedmont Lane area, or how long he had been near

Evergreen Lane when he was found.” Appellant’s Brief at 3, 9. The State argues that the

intoxication element was sufficiently proven on Mathews’s admission that he was highly

intoxicated.

       2
          Subsequently amended by Pub. L. No. 93-2012, § 2 (eff. July 1, 2012); and Pub. L. No. 117-
2012, § 1 (eff. July 1, 2012).
                                                 7
       On May 12, 2011, Mathews worked all day and then drank “a thirty pack of Natty

Ice and a half pint of Admiral Nelson.” Transcript at 189. The police were dispatched to

a disturbance involving Mathews around 10:00 p.m. Deputy Callahan testified that he

responded to the call around 10:00 p.m., but never made it to the address on Piedmont

Lane because he was directed to proceed one street west as Mathews had left the area.

Deputy Callahan proceeded one street west to Evergreen Lane and observed Mathews.

The envelope containing the video of what occurred at the jail lists the date as May 12,

2011, and the time as 22:20. Based upon a number of factors, including the odor of an

alcoholic beverage coming from Mathews, his demeanor, his slurred speech, and his

bloodshot, watery, and glassy eyes, multiple officers testified that based upon their

experience Mathews was intoxicated.      Also, Mathews testified that he was “highly

intoxicated” and “wasn’t in [his] right state of mind” when he threatened Officer Wenzel.

Id. at 190, 200, 202. During closing argument, Mathews’s counsel stated: “First of all

[Mathews] admits he was drunk. Inebriated, plastered, on a bender, he admits it. He said

he drank thirty beers. All right.” Id. at 226. We cannot say that the evidence is

insufficient on this basis.

       We next turn to Mathews’s argument that the evidence was insufficient because he

was not in a public place or place of public resort. Mathews argues that while the State

relied on evidence that the only way to reach Evergreen Lane from Piedmont Lane would

be to cross Bellmont Road, the charging information did not charge Mathews with being

intoxicated on Bellmont Road. The State argues that the sequence of events and the

layout of the streets in Decatur lead to the natural inference that Mathews was drunk

                                           8
when he was fighting in the street on Piedmont Lane and that, when the call went out that

someone had called the police, he then crossed Bellmont Road in an intoxicated state and

was ultimately found in a person’s yard on Evergreen Lane. Thus, the State argues that

“on at least two occasions, the jury could reasonably have concluded that [Mathews] was

intoxicated in a public place – once on Piedmont and once as he crossed Bellmont.”

Appellee’s Brief at 9. The State also argues that “[i]n charging Defendant with public

intoxication alleging a specific date, time and location, a defendant should be placed on

notice that the sequence of events that led to his arrest at that location at that time is the

allegation for which he must prepare a defense.” Id. at 11.

       The Indiana Supreme Court “stated many years ago, ‘The purpose of the law is to

protect the public from the annoyances and deleterious effects which may and do occur

because of the presence of persons who are in an intoxicated condition.’” State v.

Jenkins, 898 N.E.2d 484, 487 (Ind. Ct. App. 2008) (quoting State v. Sevier, 117 Ind. 338,

20 N.E. 245, 246-247 (1889)), trans. denied. “A ‘public place’ does not mean only a

place devoted to the use of the public.” Jones v. State, 881 N.E.2d 1095, 1097 (Ind. Ct.

App. 2008) (citing Wright v. State, 772 N.E.2d 449, 456 (Ind. Ct. App. 2002)). “It also

means a place that ‘is in point of fact public, as distinguished from private, – a place that

is visited by many persons, and usually accessible to the neighboring public.’” Id. “A

private residence, including the grounds surrounding it, is not a public place.” Moore v.

State, 634 N.E.2d 825, 827 (Ind. Ct. App. 1994).

       The facts most favorable to the conviction reveal that the police were dispatched

to a fight involving Mathews occurring in the street on Piedmont Lane. Deputy Callahan

                                              9
discovered Mathews “between the residences on Evergreen Lane and towards the back

where Flemings Apartments would be, a few houses North.” Transcript at 129. In order

to reach on foot the location where Mathews was observed by Deputy Callahan, Mathews

would have had to cross Bellmont Road, which is a public street. To the extent that the

charging information listed Evergreen Lane, the State does not point to evidence and our

review of the record does not reveal whether Mathews was ever on or crossed Evergreen

Lane or whether the exact location where Mathews was observed by Deputy Callahan

was a public place. Thus, the evidence and reasonable inferences therefrom indicate only

that Mathews was intoxicated in the public places of Piedmont Lane and Bellmont Road.

Accordingly, we must address Mathews’s argument that the evidence at trial materially

varied from the charging information.

       Mathews essentially argues that there is a material variance between the charging

information and the evidence produced at trial which resulted in insufficient evidence to

convict him as charged. See Rupert v. State, 717 N.E.2d 1209, 1211-1212 (Ind. Ct. App.

1999) (addressing the defendant’s argument of whether a variance between the

information and the evidence was fatal in the context of the issue of whether the evidence

was insufficient to support the defendant’s conviction).

       An information must be “a plain, concise, and definite written statement of the

essential facts constituting the offense charged,” Ind. Code § 35-34-1-2(d), and “must be

sufficiently specific to apprise the defendant of the crime for which he is charged and to

enable him to prepare a defense.” Bonner v. State, 789 N.E.2d 491, 493 (Ind. Ct. App.

2003) (quoting Jones v. State, 467 N.E.2d 1236, 1241 (Ind. Ct. App. 1984)). “A criminal

                                            10
defendant has the right to be advised of the nature and cause of the accusation against

him. There must be consistency between the allegations charged and the proof adduced .

. . .” Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992) (citation omitted).

A variance is an essential difference between proof and pleading. Allen v. State, 720

N.E.2d 707, 713 (Ind. 1999). Not all variances are material or fatal, however. Id. The

test to determine whether a variance between the proof at trial and a charging information

or indictment is fatal is as follows:

       (1) was the defendant misled by the variance in the evidence from the
       allegations and specifications in the charge in the preparation and
       maintenance of his defense, and was he harmed or prejudiced thereby;

       (2) will the defendant be protected in the future criminal proceeding
       covering the same event, facts, and evidence against double jeopardy?

Mitchem v. State, 685 N.E.2d 671, 677 (Ind. 1997) (quoting Harrison v. State, 507

N.E.2d 565, 566 (Ind. 1987)).3 In other words, to award relief on the basis of a variance

between allegations in the charge and the evidence at trial, the variance must be such as

to either have misled the defendant in the preparation and maintenance of his defense

with resulting harm or prejudice or leave the defendant vulnerable to double jeopardy in a



       3
           The Court in Mitchem noted:

       Applying this test is essential because it addresses two constitutional guaranties of the
       accused in criminal prosecutions. Part one of the test meets the requirements under Art.
       1, § 13 of the Indiana Constitution which entitles defendant “to demand the nature and
       cause of the accusation against him, and to have a copy thereof.” The second part of the
       test for variance meets the requirements of Art. 1, § 14 of the Indiana Constitution which
       provides that “no person shall be put in jeopardy twice for the same offense.” See
       Madison[ v. State, 234 Ind. 517, 545-546, 130 N.E.2d 35, 48 (1955),] (concurring
       opinion of Arterburn, J., in which three other justices concurred).

685 N.E.2d at 677 n.8.

                                                  11
future criminal proceeding covering the same event, facts, and evidence. Winn v. State,

748 N.E.2d 352, 356 (Ind. 2001).

      Mathews cites Moore v. State, 634 N.E.2d 825 (Ind. Ct. App. 1994). In that case,

James Moore parked his car in the driveway of the residence of his former wife and her

husband. 634 N.E.2d at 825-826. An altercation occurred between Moore and his former

wife’s husband. Id. at 826. Moore appealed his conviction for public intoxication and

argued that he was not in a public place at the time of his arrest. Id. The State argued

that Moore was not in a public place when arrested, but contended that the conviction

was supported because Moore must have driven on public roads to reach his former

wife’s residence. Id.

      The court held:

      The charging information states that Moore was in a state of intoxication at
      10421 Hills Dale Drive ([the former wife’s] residence), not on the public
      roads going to the residence. Further, it is uncontroverted that Moore was
      only observed in [the former wife’s] driveway or backyard. We reject the
      State’s suggestion that we broaden the charging information and infer
      evidence which was not actually presented at trial. Moore’s public
      intoxication conviction is reversed.

Id. at 827. Although we noted that the charging information in Moore listed only the

address for a private residence, our holding was also based on the fact that the arresting

officer had not seen the defendant in a public place. Here, while the record does not

reveal whether the officers saw Mathews in a public place, the officers were called to a

fight involving Mathews occurring in the street on Piedmont Lane and subsequently

located Mathews near Evergreen Lane, and Mathews must have crossed Bellmont Road

to reach that location. Thus, Moore is distinguishable.

                                            12
       In any event, Moore should not be read to hold that an intoxicated person first seen

on public property, eventually found on private property, and charged with intoxication at

that address is exempt from prosecution for public intoxication. Although not directly on

point, our decision in Vickers v. State, 653 N.E.2d 110 (Ind. Ct. App. 1995), is

instructive. In that case, an off-duty officer stopped Vickers after observing his vehicle

weaving across lanes. 653 N.E.2d at 112. Vickers fled from the traffic stop, and a high-

speed chase ensued. Id. Eventually the chase led to a “densely populated residential

area.” Id. Vickers pulled into Rockford Court, and an officer parked his car to block the

exit from that road. Id. Upon attempting to leave Rockford Court, Vickers struck the

officer’s vehicle and was arrested. Id.

       On appeal, Vickers challenged his convictions and sentences for three alcohol

related charges: driving while intoxicated, operating a vehicle with a BAC of .10% or

more, and public intoxication. Id. at 114. Specifically, he argued that the evidence did

not support a conviction for all three offenses. Id. We disagreed, holding in relevant part

that “Vickers was charged with public intoxication based on his intoxicated condition

after he ran into [the officer’s] vehicle. Vickers has failed to convince us that the conduct

underlying his convictions for driving while intoxicated and public intoxication was so

continuous and uninterrupted as to constitute a single transaction.” Id. at 115 (footnote

omitted). In a footnote, we noted that Vickers had been charged with public intoxication

as follows: “Ray W. Vickers, on or about October 23, 1993, was found at 10335

Rockford Ct., a public place in Marion County, Indiana, in a state of intoxication. . . .”

Id. at 115 n.1. Thus, we held that the evidence was sufficient, even though the charging

                                             13
information had listed only a street address, because the officer testified that he had

observed Vickers in the public roadway. Id. at 115.

       Similarly, here, the circumstantial evidence indicates that Mathews was on

Piedmont Lane and crossed Bellmont Road. Such evidence is sufficient to show that

Mathews was intoxicated in a public place. Mathews does not specifically contend that

the allegations misled him in his defense. Indeed, the probable cause affidavit mentions

that Officer Wenzel was dispatched to Piedmont Lane, that Mathews left an address on

Piedmont Lane, and was later discovered near Evergreen Lane. Mathews also does not

contend that he would be subject to future criminal proceedings covering the same event,

facts, and evidence. Under the circumstances, we cannot say that the variance was

material. See Parahams v. State, 908 N.E.2d 689, 693 (Ind. Ct. App. 2009) (addressing a

situation in which the charging information alleged one act of resisting law enforcement

against one officer while the evidence at trial revealed that it was another officer that the

defendant resisted, and concluding that the variance was not fatal to the State’s case).

We conclude that the State presented evidence of a probative nature from which a

reasonable trier of fact could have found that Mathews was guilty of public intoxication

as a class B misdemeanor.

       For the foregoing reasons, we affirm Mathews’s convictions for intimidation as a

class D felony and public intoxication as a class B misdemeanor and his status as an

habitual offender.

       Affirmed.

FRIEDLANDER, J., concurs.

                                             14
PYLE, J., concurs with separate opinion.




                                           15
                             IN THE
                   COURT OF APPEALS OF INDIANA

DAVID MATHEWS,                                  )
                                                )
      Appellant-Defendant,                      )
                                                )
             vs.                                )    No. 01A02-1203-CR-207
                                                )
STATE OF INDIANA,                               )
                                                )
      Appellee-Plaintiff.                       )


PYLE, Judge, concurring with opinion.



      I concur with my colleagues. However, I also think it is important to note that

Mathews’s argument regarding the trial court’s denial of his motion for mistrial fails

because he did not demonstrate how he was deprived of a fair trial. His argument is

solely based on Rule 2.11 of the Indiana Code of Judicial Conduct. This rule places an

affirmative duty upon a judge to disqualify when his or her impartiality might reasonably

be questioned. See Voss v. State, 856 N.E.2d 1211 (Ind. 2006). The language and

examples provided with the rule presuppose that a judge has knowledge of an event that

calls into question his or her ability to be fair and impartial. In this case, the record

reveals that neither the judge, prosecutor, defense counsel, nor Mathews himself was

aware of the judge’s prior representation of Mathews until after the completion of the
                                           16
first phase of the trial. At that point, the judge correctly disqualified himself from the

case. Therefore, because there was no knowledge during the trial, there was no duty to

disqualify.i




i
 If Mathews (1) had been aware that the presiding judge had previously represented him in an unrelated
criminal matter, and (2) failed to disclose that fact until after the first phase of the trial was completed,
then he would have consented to the perceived error. Hape v. State, 903 N.E.2d 977 (Ind. Ct. App. 2009);
Stein v. State, 166 Ind. App. 133, 334 N.E.2d 698 (1975) trans. denied.




                                                     17
