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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT: STEVEN C. SMITH Anderson, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana GEORGE P. SHERMAN Deputy Attorney General Indianapolis, Indiana

FILED
of the supreme court, court of appeals and tax court

Jun 30 2008, 9:19 am

CLERK

IN THE COURT OF APPEALS OF INDIANA
STEVEN LOYD BRINKLEY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 18A02-0709-CR-826

APPEAL FROM THE DELAWARE CIRCUIT COURT The Honorable Marianne L. Vorhees, Judge Cause No. 18C01-0610-FC-39

June 30, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

CRONE, Judge

Case Summary Steven Loyd Brinkley appeals from his convictions for class C felony failure to return to the scene of an accident resulting in death and for class D felony obstruction of justice. We affirm. Issues Brinkley presents five issues, which we restate as follows: I. Whether the State presented sufficient evidence to support the conviction for failure to return to the scene of an accident involving death, a class C felony; Whether the State presented sufficient evidence to support the conviction for obstruction of justice, a class D felony; Whether the court committed fundamental error by not instructing on the lesser-included offense of failure to return to the scene of an accident involving serious bodily injury/bodily injury; Whether defense counsel's failure to object to the instruction that omitted any discussion of lesser-included offenses constituted ineffective assistance; and Whether the court properly sentenced Brinkley.

II.

III.

IV.

V.

Brinkley also requested oral argument, which we deny by separate order today. Facts and Procedural History The facts most favorable to the convictions reveal that on the evening of October 7, 2006, Brinkley and Benjamin Gibson decided to go to Muncie. Brinkley drove his mother's silver Nissan Altima. Along the way, they stopped, purchased a beer from a liquor store, and drank it. Next, they stopped at Joker's Wild strip club and shared two pitchers of beer. Thereafter, they arrived at the Ball State campus, found a house party, and consumed one

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beer each. They left the first party, found another party, and drank more beer. Later in the evening, Brinkley began to drive the Nissan back to Anderson. That same night, Jamie Beaty and her boyfriend, David Pyles, went to a party in Muncie, where they drank alcohol. Around 12:45 a.m., Pyles left the party on foot. Beaty began to walk after him down Kilgore Avenue. Pyles turned to look at Beaty just as she crossed the road in front of oncoming traffic. Pyles ran and attempted to push Beaty to safety. Meanwhile, Brinkley was driving down Kilgore when Gibson saw a female (later identified as Beaty) lying in the road and a man (later determined to be Pyles) kneeling beside her. Before there was time to react, the Nissan hit Beaty. According to Gibson, he felt two quick thumps and said to Brinkley, "I think we hit someone." Tr. at 358. Brinkley, who continued driving, "didn't see it and didn't think he did." Id. When Gibson reiterated that he thought Brinkley's car had hit someone, Brinkley stopped the Nissan, and the two men exited the car and began walking back toward the accident scene. By the time they arrived, Beaty had been hit by another vehicle, a black Ford F-150 pick-up truck. The truck had dragged her, parked briefly, and then left. A woman, who had stopped at the scene, followed the departing truck and recorded its license plate. Pyles was leaning over Beaty, "trying to get her to talk to [him]." Id. at 290. Additional civilian cars stopped, 9-1-1 was dialed, and police responded. Brinkley inquired if anyone had seen what had happened. Id. at 362, 211, 238-39. Yorktown Police Officer Jeff Whitesell, the first officer to arrive on the scene, saw Beaty and Pyles on the ground and various people standing around them. Bystanders told
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Officer Whitesell about the truck, and he relayed that information to another officer, who was instructed to look for the truck. Id. at 267. Officer Whitesell was also told that Beaty had no pulse, at which point he radioed dispatch to advise that there was a fatality. Beaty then gasped twice, and Officer Whitesell confirmed she had no pulse. Thereafter, a Muncie police officer arrived and likewise found no pulse. 1 One onlooker, who had noticed that Brinkley smelled "of very strong whiskey," inquired whether the police planned to search the cars to check if any had been involved in hitting the victim. Id. at 240. Brinkley twice asked an officer if he could leave and gave no indication that he had been involved in the accident. Id. at 241-43. Eventually, Brinkley was permitted to leave. As he dropped off Gibson, Brinkley noticed a crack on the right front bumper of the Nissan. During the next couple days, Brinkley called Gibson and told him that there was a piece missing from the Nissan, that there was blood on the Nissan, and that he did not want Gibson to "say anything to anyone." Id. at 364. Brinkley asked more than once if Gibson had said anything to anyone and explained that he was going to tell his mother that he had hit a dog. Id. at 365. Also during that timeframe, Brinkley drove the Nissan to an Anderson collision repair facility for an estimate. Id. at 480. Brinkley told the repair shop that he had hit a German Shepherd, that he would perform some of the repairs himself, that he did not wish to submit a claim to insurance, and that the shop should not touch a small bit of blood residue on the bumper cover. Id. at 483-84. Brinkley thoroughly washed the Nissan.
Autopsy results later revealed that Beaty died of multiple blunt force injuries. Id. at 394-95; see also id. at 399-402 (outlining the numerous injuries suffered as well as noting a tire imprint on the inside of
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Thereafter, Brinkley heard a news report that police were searching for a newer silver Nissan. On October 10, 2006, around 8:00 p.m., Brinkley called Madison County Sheriff's Deputy Samuel Hanna, a family friend, telling him that "he thought he was in trouble, that he had hit something on the road, that he had been drinking, and that he didn't know who to go talk to." Id. at 194. After making a quick inquiry, Deputy Hanna arranged for Muncie police officers to accompany him to meet with Brinkley. At Brinkley's house, Muncie Police Officer Garreth Vannatta observed damage to the right front bumper of the silver Nissan. Accordingly, the car was towed to a secure storage facility, and Brinkley agreed to go to the police department for questioning. After being advised of his rights by Muncie Police Detective John Leach, Brinkley indicted that he understood them and that he wished to speak to Detective Leach. Id. at 520. Brinkley's version of the relevant events was as follows. He was driving the Nissan alone on the night in question, observed debris on Kilgore, saw what looked like a person, swerved over, hit something, looked back, and saw a woman lying motionless on the street. He stopped the car, ran to the victim, checked for vital signs, saw other people arrive, hugged a bystander, and gathered in a prayer circle. An officer instructed the bystanders to leave. Brinkley told an officer that he thought he had hit something, and the officer responded that it was likely debris and that he should leave. See Supp. Tr. at 1-42. Police found the black Ford F-150 pick-up truck, which had Beaty's DNA on its undercarriage. The truck did not have any damage that would indicate it had struck an upright pedestrian, and no parts of the truck were found at the accident scene. In contrast,
her thigh).

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Nissan parts were found at the scene, and those parts had Beaty's DNA on them. In addition, the Nissan's muffler was damaged and had tissue on it, and its fuel tank tested positive for Beaty's DNA. On October 16, 2006, the State charged Brinkley with class C felony failure to return to the scene of an accident resulting in death, class D felony obstruction of justice, and class A misdemeanor operating a vehicle while intoxicated. A jury that heard the case in July 2007, found Brinkley guilty of the felonies but not guilty of the misdemeanor. On August 27, 2007, the court sentenced him to an aggregate term of eight years in the Department of Correction. Discussion and Decision I. Sufficient Evidence of Failure to Return Brinkley asserts that the State did not present sufficient evidence to support his conviction for failure to return to the scene of an accident involving death. Specifically, he contends that there were two separate accidents, that it is unclear whether Brinkley's Nissan or the truck that dragged Beaty caused her fatal injuries, and that therefore his conviction for failure to stop should be vacated or reduced to a class A misdemeanor (bodily injury) or a class D felony (serious bodily injury). When reviewing the sufficiency of evidence to establish the elements of a crime, we consider only the evidence and reasonable inferences drawn therefrom that support the conviction. Cherrone v. State, 726 N.E.2d 251, 255 (Ind. 2000). We do not reweigh evidence or judge the credibility of witnesses and will affirm if there is probative evidence from which a reasonable factfinder could have found the defendant guilty beyond a
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reasonable doubt. Id. "It is well-established that the trier of fact can infer the defendant's knowledge from circumstantial evidence." Germaine v. State, 718 N.E.2d 1125, 1132 (Ind. Ct. App. 1999), trans. denied. The statute at issue provides: The driver of a vehicle involved in an accident that results in the injury or death of a person shall do the following: (1) Immediately stop the vehicle at the scene of the accident or as close to the accident as possible in a manner that does not obstruct traffic more than is necessary. (2) Immediately return to and remain at the scene of the accident until the driver does the following: (A) Gives the driver's name and address and the registration number of the vehicle the driver was driving. (B) Upon request, exhibits the driver's license of the driver to the following: (i) The person struck. (ii) The driver or occupant of or person attending each vehicle involved in the accident. (C) Determines the need for and renders reasonable assistance to each person injured in the accident, including the removal or the making of arrangements for the removal of each injured person to a physician or hospital for medical treatment. (3) Immediately give notice of the accident by the quickest means of communication to one (1) of the following: (A) The local police department if the accident occurs within a municipality. (B) The office of the county sheriff or the nearest state police post if the accident occurs outside a municipality. (4) Within ten (10) days after the accident, forward a written report of the accident to the: (A) state police department, if the accident occurs before January 1, 2006; or (B) bureau, if the accident occurs after December 31, 2005. Ind. Code

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