Darrell Berry v. State of Indiana (mem. dec.), 71A03-1606-CR-1349

On June 6, 2015, Darrell Berry picked up China Pinkney, drank alcohol with her while driving, and was speeding/weaving when his vehicle hit a curb, flipped, and struck another vehicle driven by Lavonda Austin.
Eyewitnesses observed a man climb out the driver-side window; Pinkney testified Berry was driving and does not know how to drive; others identified the driver as Berry.
Berry pulled Pinkney from the passenger window; both ran from the scene into woods; Berry was later apprehended on an open street and never provided identification or returned to the crash scene.
Officer Butler observed bloodshot eyes, alcohol odor, and unsteadiness; Berry failed standardized field sobriety tests and could not produce a satisfactory breath sample; he resisted a blood draw and was deemed to have refused testing.
The State charged Berry with Class A misdemeanor OWI endangering a person and Class B misdemeanor leaving the scene of an accident; at a bench trial Berry was found guilty and sentenced to an aggregate 365 days with 335 days suspended.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Sufficiency of evidence that Berry operated the vehicle and was intoxicated (OWI endangering)	State: Pinkney's testimony that Berry drove, eyewitness identifications, officer observations, failed FSTs, and attempts to refuse chemical testing establish operation and intoxication.	Berry: Insufficient proof he was the driver and insufficient proof of intoxication without BAC evidence.	Court: Affirmed; testimony and eyewitnesses sufficiently proved Berry was driver and intoxicated; lack of BAC due to Berry's noncooperation.
Sufficiency of evidence for leaving the scene of an accident; variance between charging information and evidence	State: Charged under statute requiring driver to stop and remain to provide information; evidence showed Berry fled on foot and never provided information.	Berry: Information did not allege the vehicle (rather than driver) left the scene; argues variance required reversal.	Court: Affirmed; any omission was not materially prejudicial, Berry was not misled, he waived specific variance claim at trial, and evidence sufficiently showed he left the scene by abandoning the scene on foot.

Tobar v. State, 740 N.E.2d 109 (Ind. 2000) (standard for sufficiency-of-the-evidence review)
Lock v. State, 971 N.E.2d 71 (Ind. 2012) (appellate review focuses on evidence favorable to verdict)
Jones v. State, 701 N.E.2d 863 (Ind. Ct. App. 1998) (trier of fact resolves credibility and weight of evidence)
Bonner v. State, 789 N.E.2d 491 (Ind. Ct. App. 2003) (information must apprise defendant of charges to prepare defense)
Birari v. State, 968 N.E.2d 827 (Ind. Ct. App. 2012) (variance relief requires defendant show prejudice or double jeopardy risk)
Neff v. State, 915 N.E.2d 1026 (Ind. Ct. App. 2009) (failure to object at trial waives variance claim)
Rupert v. State, 717 N.E.2d 1209 (Ind. Ct. App. 1999) (material variance requires reversal because of prejudice or double jeopardy risk)