APPEAL FROM THE CLARK CIRCUIT COURT. The Honorable Joseph P. Weber, Judge. Cause No. 10C03-1305-IF-6659.
ATTORNEY FOR APPELLANT: BART M. BETTEAU, Betteau Law Office, LLC, New Albany, Indiana.
ATTORNEYS FOR APPELLEE: GREGORY F. ZOELLER, Attorney General of Indiana, MICHAEL GENE WORDEN, Deputy Attorney General, Indianapolis, Indiana.
BAILEY, Judge. KIRSCH, J., and MAY, J., concur.
Brian Byrd (" Byrd" ) appeals a judgment against him for the civil infraction of Speeding for driving 54 miles per hour in a 30 miles per hour zone. He alleges he was denied due process because of a variance between the allegations and the proof. Because we find there was a failure of proof, we reverse.
Facts and Procedural History
On May 9, 2013, Clark County Deputy Sheriff Donovan Harrod issued a traffic ticket to Byrd, who had been traveling on Brown Station Way. The citation alleged that Byrd had violated Indiana Code section 9-21-5-2 by driving his vehicle at 54 miles per hour on a road having a prima facie speed of 30 miles per hour.
At the trial, Deputy Harrod testified that the posted speed limits on Brown
Station Way progressed from 30 miles per hour up to 45 miles per hour and back down to 40 miles per hour, he had " paced" Byrd's speed for approximately half a mile and had " made a turn" to pursue Byrd at a boat marina, located in a 45 miles per hour zone. (Tr. 15, 19.) During Deputy Harrod's cross-examination, Byrd's counsel produced a photograph purportedly taken near the boat marina, depicting a 45 miles per hour speed sign. Deputy Harrod conceded that he " may have made a mistake" as to where [the speed limit] " turns into 45." (Tr. 30-31). He also suggested that the photograph " could be wrong" and clarified that he had " said approximately that area" in his preceding testimony. (Tr. 31.) On re-direct, Deputy Harrod agreed with the prosecutor's statement that " you may have said thirty on the ticket, but in fact it was in a forty five zone." (Tr. 35.) The prosecutor then described the State's allegation as Byrd having traveled nine miles over the speed limit by going 54 miles per hour.
Byrd testified that he was traveling 45 miles per hour, having set his cruise control upon entering Brown Station Way. The trial court took the matter under advisement, expressing his belief that " there's every chance, by the time Mr. Byrd entered Clark County, he was in a forty five mile an hour zone, rather than thirty mile an hour zone." (Tr. 53.) Ultimately, the trial court entered a judgment against Byrd with the notation: " Hearing Journal Entry. Court finds defendant ...