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Injured man’s OWI for crash outside police station affirmed

August 17, 2018

A man who drove to a police station in Porter County after he was hurt in a fight at a party, then apparently unconsciously drove his truck into vehicles parked outside the station, lost his appeal of his drunken-driving conviction.

Denny Henderson was convicted in Porter Superior Court of Class A misdemeanor operating a vehicle while intoxicated endangering a person and was sentenced to one year in prison, all but four days of which was suspended. Henderson had driven, bleeding from his head, to the police station in Porter with his stepson, Charlie Fernandez, who went into the station seeking help for Henderson.

Porter Police Cpl. Jason Casbon observed Henderson’s truck bumper was resting against a Honda belonging to a dispatcher, next to a Kia belonging to another dispatcher. Casbon said Henderson was behind the wheel of the running truck, slumped toward the passenger seat and appeared to be injured with blood on his head. As Casbon retrieved a lockout tool to attempt to open the truck’s driver-side door, the truck’s engine began to rev, pushing the Honda into the Kia.

Officers were able to eventually turn off the truck and remove Henderson, who an officer said smelled of alcohol and appeared confused, hurt, agitated, covered with blood and expressing concern for Fernandez. He was taken to a hospital and treated for his injuries, Indiana Court of Appeals Judge Cale Bradford wrote. “Each of the medical personnel that encountered Henderson that night concluded that he was intoxicated.”

A few days later, a remorseful Henderson called the police station apologizing for his behavior and explaining why he wouldn’t let Fernandez drive. He offered to pay for the damages and thanked Casbon for “saving his life.”

The state, however, filed multiple charges against Henderson a couple of months after the crash, and he ultimately was convicted and sentenced on the Class A misdemeanor OWI count. In his appeal, Denny Henderson v. State of Indiana, 18A-CR-574, the court rejected Henderson’s arguments that testimony from Casbon about Fernandez’s statement indicating Henderson would not let him drive was hearsay, that the jury should have heard more evidence about how he was injured and that the jury was not properly instructed.

Bradford wrote that Casbon’s testimony was merely cumulative of other evidence, so any error in that regard was harmless. The COA wrote that the jury also heard evidence that Henderson had been battered and suffered injuries to his head, and those injuries left him unable to operate his truck. The trial court also did not err, as Henderson argued, in failing to instruct the jury that there must be “some evidence that a defendant expended effort to operate a vehicle” for an OWI conviction.

Henderson “has pointed to no authority indicating that a trial court is required to instruct the jury to this fact,” Bradford wrote. “Rather, our review of the relevant caselaw suggests that a defendant’s effort is commonly inferred from the facts and circumstances of each individual case. This seems appropriate given that effort merely amounts to ‘the doing of something’ by the defendant.

“Counsel highlighted testimony indicating that Henderson had been in and out of consciousness and was slumped over the passenger seat. He argued this testimony indicated that Henderson was unable to expend the effort necessary to operate the vehicle. The matter was squarely placed before the jury’s attention, and the jury found contrary to Henderson’s argument,” the panel concluded in affirming the conviction.

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