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FILED
Nov 10 2010, 9:04 am

FOR PUBLICATION

of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: DONALD K. McCLELLAN McClellan & McClellan Muncie, Indiana

ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER Attorney General of Indiana J.T. WHITEHEAD Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
KEVIN BARTON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 18A04-0910-CR-609

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne L. Vorhees, Judge Cause No. 18C01-0610-FC-40

November 10, 2010

OPINION - FOR PUBLICATION

KIRSCH, Judge

Kevin Barton appeals his conviction for failure to return to the scene of an accident resulting in death1 as a Class C felony. Barton raises the following three restated issues: I. Whether the trial court erred when it denied Bartons motion to dismiss, which asserted that the State was barred under collateral estoppel principles from prosecuting him for failure to return to the scene of an accident resulting in death; Whether certain statements made by the State during rebuttal closing argument constituted Doyle2 violations; and Whether the trial court erred when it refused Bartons mistake-of-fact instruction.

II.

III.

We affirm. FACTS AND PROCEDURAL HISTORY Around 1:30 a.m. on October 8, 2006, Jamie Beaty ("Beaty"), a twenty-three-year-old female, and her boyfriend, David Pyles ("Pyles"), were at a party near Yorktown, Indiana, which is located between Anderson and Muncie. Pyles got mad at Beaty and left the party on foot, to walk back to Muncie to retrieve his car. Beaty followed him as he walked along State Road 32. Pyles was walking ahead of Beaty and told her to quit following him; the two continued to argue as they walked. At some point, Pyles looked back and saw Beaty in the road, with headlights fast approaching, and he attempted to reach her to get her out of the way. Pyles explained that the next thing he knew, he was knocked down and a car had hit Beaty. That car, later determined to be a Nissan driven by Steven Brinkley, did not stop.

1

See Ind. Code

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