ATTORNEYS FOR APPELLANT
: ATTORNEYS FOR APPELLEE:
ALFRED E. MCCLURE KAREN M. FREEMAN-WILSON
HEATHER MCCLURE OFARRELL Attorney General of Indiana
THOMAS B. OFARRELL
McClure & OFarrell PRISCILLA J. FOSSUM
Westfield, Indiana Deputy Attorney General
COURT OF APPEALS OF INDIANA
MARY SUE BUNTING, )
vs. ) No. 29A05-9910-CR-462
STATE OF INDIANA, )
APPEAL FROM THE HAMILTON SUPERIOR COURT
The Honorable Wayne A. Sturtevant, Judge
Cause No. 29D05-9807-DF-2585
June 29, 2000
OPINION FOR PUBLICATION
STATEMENT OF THE CASE
Mary Sue Bunting and Brandon Cauldwell were involved in an automobile collision in
which Cauldwell was seriously injured. A jury found Bunting guilty of operating
a vehicle with a breath alcohol content ("BAC") of more than 0.10 percent,
operating while intoxicated ("OWI") and OWI causing serious bodily injury. The trial
court "merged" the three offenses and entered judgment of conviction for OWI causing
serious bodily injury. In this appeal from that conviction, Bunting raises three
issues, one of which is dispositive: whether there is substantial evidence of
probative value that Bunting caused Cauldwell's injuries.
We reverse and remand with instructions.
On June 3, 1998, Bunting drank a number of beers on a flight
from Tennessee to Cincinnati and during a subsequent stopover at the Cincinnati airport.
Upon her arrival in Indianapolis, Bunting drove her late model Ford Aerostar
minivan from the airport toward her home in Carmel, traveling northbound on Interstate
465 to U.S. Highway 31, a four-lane divided highway. Meanwhile, Cauldwell left
work at around 11 p.m. and proceeded westbound on 111th Street in his
Honda Prelude. Co-worker Kathy Dawson followed Cauldwell in her vehicle.
Cauldwell pulled up to the stop sign at the corner of 111th Street
and U.S. Highway 31. Dawson stopped immediately behind him. Dawson looked
to the south to check for traffic and saw none. She observed
Cauldwell proceed into the intersection and then "[s]uddenly" saw lights and heard a
"big bang." Bunting had broadsided Cauldwell's car, propelling it across the median
into a ditch on the west side of the highway.
Carmel Police Officer Joseph Bickel arrived on the accident scene at 11:25 p.m.
When Bickel spoke to Bunting, he immediately detected the smell of alcohol
on her breath. Bunting told the officer that the other driver involved
in the collision had left the scene. Rescue workers eventually extracted Cauldwell
from his car and transported him by helicopter to the hospital, where he
remained for five weeks with a severe head injury and fractures of his
clavicle, scapula, and tibia. Cauldwell has no memory of the collision or
the events immediately preceding it.
After Cauldwell was removed from the scene, Officer Bickel turned his attention to
Bunting. He again noticed the odor of alcohol on her breath.
Bunting's speech was slurred, and her eyes were "bloodshot." The police found
two empty beer cans in Bunting's car. Bickel asked Bunting if she
had been drinking, and Bunting told him she had consumed one beer inside
her minivan. Bickel performed three field sobriety tests, which Bunting failed.
Her BAC was measured at .14 percent at 2:10 a.m.
Bunting was charged and convicted of operating with a BAC of greater than
0.10 percent, a Class C misdemeanor, OWI, a Class A misdemeanor, and OWI
causing serious bodily injury, a Class D felony. The trial court entered
conviction for OWI causing serious bodily injury and imposed the maximum three-year sentence,
with 180 days executed and the remainder suspended to probation. This appeal
DISCUSSION AND DECISION
Bunting contends that the State failed to present sufficient evidence to sustain her
conviction of OWI causing serious bodily injury. In resolving the question, we
neither reweigh the evidence nor assess the credibility of the witnesses. Thornton
v. State, 712 N.E.2d 960, 961 (Ind. 1999). Where the evidence is
in conflict, we are bound to view only that evidence which is most
favorable to the verdict and all reasonable inferences therefrom. Holmes v. State,
583 N.E.2d 180, 182 (Ind. Ct. App. 1991), trans. denied. We will
affirm a conviction if there is probative evidence from which a reasonable jury
could have found the defendant guilty beyond a reasonable doubt. Brown v.
State, 720 N.E.2d 1157, 1158 (Ind. 1999). We will reverse a conviction,
however, if the record does not reveal substantial evidence of probative value and
there is a reasonable doubt in the minds of reasonably prudent persons.
Clark v. State, 695 N.E.2d 999, 1002 (Ind. Ct. App. 1998), trans. denied.
Under Indiana Code Section 9-30-5-4(a), the State was required to prove (1) that
Bunting operated a motor vehicle with at least ten-hundredths percent (0.10%) of alcohol
by weight in grams in two hundred ten (210) liters of the person's
breath or while intoxicated, and (2) that her act of doing so resulted
in serious bodily injury to another person. See Micinski v. State, 487
N.E.2d 150, 154 (Ind. 1986) (discussing predecessor statute). Bunting concedes that the
State proved that she had the required breath alcohol content and that Cauldwell
suffered serious bodily injury. She insists, however, that the State did not
prove beyond a reasonable doubt that her conduct caused his injuries.
The State bears the burden of proving causation, but it need not establish
a causal link between a defendant's alcohol consumption and the fact that serious
bodily injury resulted from her driving. Id. The relevant analysis focuses
on the driver's acts rather than on speculation about whether she could have
stopped if she had been sober. Id. Thus, if the driver's
conduct caused the injury, she commits the crime; if someone else's conduct caused
the injury, she is not guilty. Id.; see Gokey v. State, 510
N.E.2d 703 (Ind. Ct. App. 1987) (affirming conviction where defendant spun on road,
crossed center line and struck approaching car); Rippy v. State, 493 N.E.2d 477
(Ind. Ct. App. 1986) (affirming conviction where evidence showed defendant was speeding), trans.
Here, it is uncontested that Bunting had the right-of-way and that Cauldwell pulled
in front of her on U.S. Highway 31. Nevertheless, the State argues
that it proved beyond a reasonable doubt that Bunting caused Cauldwell's injuries.
Specifically, the State maintains that Bunting was driving without her lights until moments
before the accident. The State relies solely upon Dawson's testimony that she
did not see Bunting's lights from her vehicle positioned behind Cauldwell's Honda.
Dawson explained when she first saw Bunting's lights in the following colloquy:
State: What do you remember next once [Cauldwell] started proceeding into the intersection of
111th and U.S. 31?
Dawson: Suddenly I saw some lights and heard this big bang and this car
State: When you say "suddenly" you saw lights, where did you see
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
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
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
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.
The presumptive sentence for a Class D felony is one and
one-half years, with no more than one and one-half years added for aggravating
circumstances and no more than one year subtracted for mitigating circumstances.
Code § 35-50-2-7.
We heard oral argument on May 19, 1999 at the Rush