dissenting.
I respectfully dissent. As to the "knowledge" element
(a) whether Micinski knew he had been involved in an accident resulting in injury was a jury question,
(b) there was substantial evidence of probative value supporting the jury's verdict on this aspect, and
(c) the trial court's error, if any, in striking that element from Micinski's tendered instruction was at best harmless.
Further, there was substantial evidence of probative value supporting the jury verdicts as to both counts of driving under the influence resulting in serious bodily injury.
I. MICINSKTITS "KNOWLEDGE"
Runyon v. State (1941), 219 Ind. 352, 38 N.E.2d 235 is dispositive on the issue of knowledge. The Runyon court said
But appellant insists that the State did not show that she had knowledge that she had been involved in an accident.... Even if there were two possible inferences from the evidence, one consistent with her lack of knowledge, nevertheless the trial court could draw the inference of knowledge and we upon appeal can not say that he should have drawn the other inference. White v. State, 1941, [219] Ind. [290], 37 N.E.2d 937. (Emphasis supplied).
There is sufficient evidence in the record to establish every element of the offense, the appellant's car struck Russell, that she then knew thereof, that she did not stop nor aid nor offer to aid the victims, nor disclose to any one that night any of the information required by the statute. (Emphasis supplied).
Runyon, 38 N.E.2d at 238-239.
Without question in my view the cireum-stantial evidence is overwhelming in its support of the jury's determination Micin-ski knew an accident had occurred which resulted in serious personal injury.
Micinski's evidence does not even controvert the circumstantial evidence regarding knowledge. The only evidence remotely bearing on that subject was contained in his statement wherein he admitted he had been drinking and driving and driving in the vicinity of the hit and run accident but had no recollection of the collision. Thus, the circumstantial evidence he knew the accident had occurred stands uncontrovert-ed.
II. HARMLESS ERROR
The majority predicates reversal as to the leaving the seene count because the trial court erred by failing to include the knowledge element in Micinski's tendered instruction. In view of the overwhelming nature of the cireumstantial evidence on this subject the trial court's failure to include that element, if indeed it was error, was merely harmless.
III. SUFFICIENCY OF THE EVIDENCE
As to the sufficiency of the evidence on the two counts of intoxication and the two counts of operating a vehicle while intoxicated resulting in serious bodily injury, the evidence again is not only substantial, it is overwhelming. Micinski admitted to the police the following:
*638(a) he was driving that night in the vieinity of the scene of the accident;
(b) by his own admission he thought he had too much to drink because his memory was impaired;
(c) an expert testified in his opinion a person whose memory was impaired due to alcoholic blackout would have had a blood alcohol level of at least .10 percent; and
(d) the automobile debris at the scene perfectly matched the parts of Micinski's automobile which were missing when the police later inspected it, and paint serap-ings from the vehicle perfectly matched paint samples taken from the victims' clothing.
I believe it clear and unarguable, especially on appeal, the evidence is substantial and probative as to each of the three points of the Higginbotham v. State (1981), Ind.App., 427 N.E.2d 896 test. Thus, the evidence supports the jury's verdict. Runyon, 38 N.E.2d at 239.
For these reasons I would affirm the trial court.