MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                    FILED
regarded as precedent or cited before any                           Feb 22 2017, 7:05 am
court except for the purpose of establishing
the defense of res judicata, collateral                                  CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
estoppel, or the law of the case.                                         and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark S. Lenyo                                            Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana
                                                         Ellen H. Meilaender
                                                         Supervising Deputy
                                                         Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Berry,                                           February 22, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1606-CR-1349
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Julie P. Verheye,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         71D07-1506-CM-2264



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017     Page 1 of 9
                                          Case Summary
[1]   The Appellant-Defendant Darrell Berry appeals his convictions for operating a

      motor vehicle while intoxicated (“OWI”) endangering a person, a Class A

      misdemeanor, and leaving the scene of an accident, a Class B misdemeanor,

      contending that the Appellee-Plaintiff the State of Indiana (“the State”) failed to

      produce sufficient evidence to sustain his convictions. Specifically, Berry

      claims that the State failed to prove that (1) Berry was the operator of the

      vehicle and was intoxicated or impaired at the time of the accident or (2) “the

      motor vehicle was involved in an accident and left the scene.” Appellant’s Br.

      p. 10. Because we disagree, we affirm.



                            Facts and Procedural History
[2]   On June 6, 2015, Berry picked up a woman, China Pinkney, for a date. When

      Berry got to Pinkney’s sister’s house in St. Joseph County to pick her up,

      Pinkney could tell that Berry had already been drinking due to the smell of his

      breath. They were both drinking a mixed vodka drink out of the same bottle as

      they drove around. They were “just riding around, feeling nice, buzz going

      on.” Tr. p. 14. Berry was speeding and weaving in and out of traffic when he

      hit a curb causing his vehicle to flip over and hit another vehicle. The driver of

      the vehicle that Berry hit was Lavonda Austin.


[3]   After the collision, Berry climbed out of the driver’s door window, walked

      around the front of the vehicle, and pulled Pinkney out of the passenger’s door


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 2 of 9
      window. Once Pinkney was out of the car, she and Berry ran from the scene of

      the accident, jumping over a fence and running into the woods. Berry and

      Pinkney continued to run through the woods until they reached an open street

      where police caught and arrested Berry. Prior to leaving the scene of the

      accident, Berry never provided his name, address, insurance, or any other

      information; moreover, he never returned to the scene of the accident.


[4]   Officer Christopher Butler was one of the officers dispatched to the scene of the

      accident. When Officer Butler first made contact with Berry he observed that

      Berry had bloodshot eyes, smelled of alcoholic beverage, and was unbalanced.

      These observations prompted Officer Butler to administer field sobriety tests

      (“FSTs”) including the horizontal-gaze-nystagmus, the walk-and-turn, and the

      one-leg stand tests. Officer Butler observed a lack of smooth pursuit in both

      eyes and Berry failed the distinct and sustained nystagmus at maximum

      deviation in the horizontal-gaze-nystagmus test. During the walk-and-turn test,

      Berry lost his balance, failed to walk heel to toe, made an improper turn, and

      stepped off the line. Finally, Berry put his foot down and raised his arm during

      the one-leg stand test. Berry offered to submit to a breath test, but failed to

      supply a sufficient breath sample six different times. Berry was also offered a

      blood draw at that time, but he was extremely uncooperative and tried to stick

      his fingers down his throat to make himself vomit; at that time, he was deemed

      to have refused a test.


[5]   On June 30, 2015, the State charged Berry with Class A misdemeanor OWI

      endangering a person and Class B misdemeanor leaving the scene of an

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 3 of 9
      accident. A bench trial was held on April 19, 2016 and the trial court found

      Berry guilty as charged. On May 13, 2016, the trial court sentenced Berry to an

      aggregate sentence of 365 days with 335 days suspended. This appeal follows.



                                 Discussion and Decision
[1]   On appeal, Berry argues that the evidence was insufficient to support his

      convictions for OWI endangering a person and leaving the scene of an

      accident.1 Our standard for reviewing sufficiency of the evidence claims is well-

      settled. Tobar v. State, 740 N.E.2d 109, 111 (Ind. 2000).


              In reviewing the sufficiency of the evidence, we examine only the
              probative evidence and reasonable inferences that support the
              verdict. We do not assess witness credibility, nor do we reweigh
              the evidence to determine if it was sufficient to support a
              conviction. Under our appellate system, those roles are reserved
              for the finder of fact. Instead, we consider only the evidence most
              favorable to the trial court ruling and affirm the conviction unless
              no reasonable fact-finder could find the elements of the crime
              proven beyond a reasonable doubt. This evidence need not
              overcome every reasonable hypothesis of innocence; it is
              sufficient so long as an inference may reasonably be drawn from
              it to support the verdict.


      Lock v. State, 971 N.E.2d 71, 74 (Ind. 2012) (internal citations and quotations

      omitted). The trier of fact is responsible for resolving conflicts of testimony,




      1
       Berry does not challenge the endangering a person enhancement to the operating while intoxicated
      conviction.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017       Page 4 of 9
      determining the weight of the evidence, and evaluating the credibility of the

      witnesses. Jones v. State, 701 N.E.2d 863, 867 (Ind. Ct. App. 1998).


                              I.     OWI Endangering a Person
[2]   Under Indiana Code section 9-30-5-2(a) and (b), in relevant part, the State had

      to prove that Berry: 1) operated a vehicle; 2) while intoxicated; and 3) he

      operated the vehicle in a manner that endangered another person. On appeal,

      Berry argues that there was insufficient evidence that Berry operated the vehicle

      that was involved in the collision or that Berry was intoxicated at the time.

      After reviewing the evidence presented by the State to prove the identity of the

      driver of the vehicle, we find that there was overwhelming evidence that Berry

      was the individual who operated the vehicle at issue.


[3]   The record shows that Pinkney testified that she was a passenger in Berry’s

      vehicle on the day of the accident and that Berry was driving at the time the

      accident occurred. Pinkney further testified that she does not even know how

      to drive. The evidence also shows that after the accident, Lavonda Austin

      observed Berry climbing out of the window on the driver’s side of the vehicle

      before he helped a female climb out of the window on the passenger’s side of

      the vehicle. Further, Jeff Austin testified that the male he saw climb out of the

      window on the driver’s side of the vehicle looked like Berry. The direct

      evidence from Pinkney that Berry was driving, along with the observations

      from other eyewitnesses, was more than sufficient to establish that Berry was

      driving the vehicle at the time of the accident.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 5 of 9
[4]   As discussed in the facts above, there was overwhelming evidence that Berry

      was intoxicated. Moreover, the lack of any blood alcohol content (“BAC”)

      evidence is due to Berry’s lack of cooperation, not any fault by the State. The

      record shows that Berry smelled of alcoholic beverage when he picked Pinkney

      up. There is also evidence that he drank vodka with Pinkney while he was

      driving. Furthermore, Officer Butler testified that Berry had bloodshot eyes,

      smelled like alcoholic beverage, and was unbalanced on his feet after the

      accident. The evidence also shows that Berry failed three FSTs. The fact that

      the State was unable to present evidence of Berry’s BAC does not outweigh the

      remainder of the evidence. We therefore conclude that the State presented

      sufficient evidence to support the finding that Berry was intoxicated at the time

      of the accident.


                       II. Leaving the Scene of an Accident
[5]   Berry also claims that there was insufficient evidence to support his conviction

      for leaving the scene of an accident. Specifically, Berry claims that the State

      was required to prove “whether the vehicle left the scene of the accident, and

      not whether the driver stayed at the scene of the accident.” Appellant’s Br. p.

      16. Berry further argues that the State elected to charge him in a manner that

      did not include an allegation of the driver leaving the scene of the accident.

      The information included, in part, the following language:

              On or about June 6, 2015 in St. Joseph County, State of Indiana,
              [Darrell Berry] being the driver of a vehicle that was involved in
              an accident with Lavonda Austin and Jeffery Austin, did


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 6 of 9
              knowingly fail to immediately stop the vehicle at the scene of
              said accident, or as close as possible thereto.

              All of which is contrary to the form of the statutes in such cases
              made and provided by I.C. 9-26-1-1.1(a)(1)(A) and I.C. 9-26-1-
              1.1(b), and against the peace and dignity of the State of Indiana.

      Appellant’s App. Vol. II, p. 20.

[6]   While Berry is correct that the language of the information does not specifically

      mention the driver leaving the scene of the accident, this omission alone is not

      grounds for a reversal of his conviction. Under Indiana Code section 35-24-1-2,


              The indictment or information shall be in writing and allege the
              commission of an offense by . . . citing the statutory provision
              alleged to have been violated, except that any failure to include
              such a citation or any error in such a citation does not constitute
              grounds for reversal of a conviction where the defendant was not
              otherwise misled as to the nature of the charge against the
              defendant.


      The information must be “sufficiently specific to apprise the defendant of the

      crime for which he is charged and enable him to prepare a defense.” Bonner v.

      State, 789 N.E.2d 491, 493 (Ind. Ct. App. 2003) (internal citation omitted).

      Moreover,

              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 future
              criminal proceeding covering the same event, facts, and evidence.


      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 7 of 9
      Birari v. State, 968 N.E.2d 827, 834 (Ind. Ct. App. 2012). However, as a general

      rule, “failure to make a specific objection at trial waives any material variance

      issue.” Neff v. State, 915 N.E.2d 1026, 1031 (Ind. Ct. App. 2009). Prior to this

      appeal, Berry did not raise an issue regarding the sufficiency of the information

      or the variance between the allegations in the charge and the evidence at trial;

      therefore, Berry is estopped from raising this issue for the first time on appeal.

      Nevertheless, we will address the issue on its merits.


[7]   Notwithstanding waiver, Berry’s variance challenge still fails. Berry was

      charged with violating Indiana Code section 9-26-1-1.1. (App. Vol. II, p. 20).

      However, in reading the statute in its entirety, it is clear that the operator of a

      vehicle must (1) immediately stop at the scene of the accident or as close to the

      accident as possible, and (2) remain at the scene until the operator provides his

      or her name, address, registration number for the vehicle and exhibit the

      operator’s driver’s license to anyone involved in the accident. Berry is

      essentially arguing that the State was constrained by the charging information

      to prove that his vehicle left the scene of the accident in order to obtain a

      conviction. “When a defendant claims there is a variance between the

      information and the evidence, we must determine whether the variance is

      material.” Rupert v. State, 717 N.E.2d 1209, 1211 (Ind. Ct. App. 1999). “A

      material variance requires the reversal of a conviction, because such a variance

      misleads the defendant in the preparation of his defense and presents the risk of

      double jeopardy.” Id.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 8 of 9
[8]   Based upon the record and the briefs, it does not appear that Berry was misled

      or prejudiced in the preparation and maintenance of his defense at trial.

      Discovery made it very clear that Berry’s vehicle was inoperable and could not

      have left the scene of the accident. The evidence also made it very clear that

      Berry and Pinkney ran away from the scene of the accident. Berry does not

      complain of a lack of notice, nor does he complain that the allegations misled

      him in his defense. Furthermore, Berry does not argue that he would be subject

      to future criminal prosecutions based upon this same incident. Based upon the

      present circumstances, we conclude that the variance between the charging

      information and the evidence presented at trial was not material, and there was

      sufficient evidence to sustain Berry’s conviction for leaving the scene of an

      accident.


[9]   The judgment of the trial court is affirmed.


      Vaidik, C.J., and Brown, J., concur.




      Court of Appeals of Indiana | Memorandum Decision 71A03-1606-CR-1349 | February 22, 2017   Page 9 of 9
