Lead Opinion
OPINION
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 Sheriffs 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 Sheriffs Deputy Trevor Callahan, who was on his way to the аddress 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 yеlled at Mathews, and Mathews stopped immediately and walked toward him. Deputy Callahan handcuffed Mathews, smelled the odor of an 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.
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.
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 fоr 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 yеars.
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 mistrial lies within the discretion of the trial court. Francis v. State,
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:
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(6) The judge:
(a) served as a lawyer in the matter in controversy, or was associated with a lawyer who 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 Den-ton v. State,
II.
The next issue is whether the evidence is sufficient to sustain Mathews’s
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 35^18-1-9).”
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.” Apрellant’s Brief at 3, 9. The State argues that the intoxication element was sufficiently proven on Mathews’s admission that he was highly intoxicated.
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, multiрle 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
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,
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 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,
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
(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,
Mathews cites Moore v. State,
The court held:
The charging informatiоn 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.
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,
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, аnd 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 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 Bell-mont 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 neаr 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,
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.
Notes
. 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.
. Subsequently amended by Pub.L. No. 93-2012, § 2 (eff. July 1, 2012); and Pub.L. No. 117-2012, § 1 (eff. July 1,2012).
. 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 tо 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 Ar-terburn, J., in which three other justices concurred).
Concurrence Opinion
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 hоw 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,
. 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. Hope v. State,