FOR PUBLICATION

ATTORNEYS FOR APPELLANT :    ATTORNEYS FOR APPELLEE:

ALFRED E. MCCLURE    KAREN M. FREEMAN-WILSON
HEATHER MCCLURE O’FARRELL    Attorney General of Indiana
THOMAS B. O’FARRELL
McClure & O’Farrell     PRISCILLA J. FOSSUM
Westfield, Indiana    Deputy Attorney General
             Indianapolis, Indiana

MARY SUE BUNTING,       )

                             )
Appellant-Defendant,         )
                             )
vs.                          )    No. 29A05-9910-CR-462
                             )
STATE OF INDIANA,            )
                             )
Appellee-Plaintiff.          )

Dawson:    Suddenly I saw some lights and heard this big bang and this car hit him.

State:     When you say "suddenly" you saw lights, where did you see the lights?

Dawson:    From the south, which I had not seen before. It was like, there they were.

State:    Did you see them out of the corner of your eye or were you looking directly at them?

Dawson:    It just all came into my peripheral vision just like that. It was like whoa, there it is.

Record at 466-67. Based upon Dawson's testimony, the State argued at trial that the accident occurred because Bunting's minivan was "invisible." But the evidence does not support the State's theory. Dawson's testimony proves only that from her position behind Cauldwell's vehicle she did not see Bunting's lights, not that Bunting's lights were not working.
Bunting testified that the lights on her minivan activate automatically when she starts the ignition. The accident reconstructionist testifying for the State did not rebut or contradict Bunting's testimony, nor did he maintain that the automatic ambient light-sensing system was inactivated or malfunctioning at the time of the incident. To the contrary, all evidence supports the conclusion that the system and lights were working properly.
In performing our duty as an appellate tribunal, we are aware that causation is typically a question for the trier of fact. Rippy, 493 N.E.2d at 480. We are also cognizant that our standard of review requires us to view the evidence in a light most favorable to the State. See Holmes, 583 N.E.2d at 182. But, as our supreme court explained some time ago:
[I]f as a result of our probing and sifting the evidence most favorable to the state, we determine that the residue of facts is so devoid of evidence of probative value and reasonable inferences adduceable therefrom, as to preclude guilt beyond a reasonable doubt, we should so declare. A failure to do so is a rejection of our duty as an appellate tribunal and tantamount to the enunciation of a rule that any evidence no matter how infinitesimal or inferences drawn therefrom, whether based on speculation or conjecture, would be sufficient to establish guilt beyond a reasonable doubt. This we are not inclined to do for to assume such a judicial posture, neglecting our appellate responsibility, would reduce the appellate process to an exercise in impotent and meaningless futility.

Liston v. State, 252 Ind. 502, 511-12, 250 N.E.2d 739, 743-44 (1969).
    Bunting's conviction rests only on the State's theory that, because Dawson did not see Bunting's lights in her peripheral vision until just prior to the accident, they were inoperable until Bunting turned them on just moments before impact. This amounts to speculation. But the mere suspicion or possibility of guilt is not sufficient to sustain a conviction. Floyd v. State, 399 N.E.2d 449, 451 (Ind. Ct. App. 1980). The Due Process Clause of the Fourteenth Amendment requires that a defendant be convicted by proof of guilt beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364 (1970). While we seldom reverse for insufficient evidence, in every case where that issue is raised on appeal we have an affirmative duty to make certain that the proof at trial was, in fact, sufficient to support the verdict beyond a reasonable doubt. That doubt may arise from the evidence, the lack of evidence, or a conflict in the evidence. Brown v. State, 266 Ind. 82, 91, 360 N.E.2d 830, 836 (1977). On this record, we must conclude as a matter of law that there is insufficient evidence of probative value to establish that Bunting's lights were not operating until just before the accident.
Because the State's proof of causation was based entirely on speculation that Bunting's lights were off until just prior to impact, the State did not prove causation beyond a reasonable doubt. We therefore reverse Bunting's conviction for OWI causing serious bodily injury. On remand, the court is instructed to vacate its judgment of conviction and sentence for that offense.
The jury also found Bunting guilty of operating with a BAC of over 0.10 percent, a Class C misdemeanor, and of OWI, a Class A misdemeanor. Bunting does not challenge those convictions. Operating with a BAC of over 0.10 percent is a lesser-included offense of OWI. See Sering v. State, 488 N.E.2d 369, 376 (Ind. Ct. App. 1986). The State can charge a defendant with both the greater and the lesser-included offense, but convictions for both offenses cannot stand. Hornback v. State, 693 N.E.2d 81, 85 (Ind. Ct. App. 1998). Thus, we remand with instructions to enter judgment of conviction for OWI and to impose an appropriate sentence for that conviction.
Reversed and remanded with instructions.
BAKER, J., and BAILEY, J., concur.