Eric Dillon v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: August 27, 2015
• Docket: 49A05-1412-CR-596
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be Aug 27 2015, 8:53 am 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 ATTORNEYS FOR APPELLEE Suzy St. John Gregory F. Zoeller Indianapolis, Indiana Attorney General of Indiana James B. Martin Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Eric Dillon, August 27, 2015 Appellant-Defendant, Court of Appeals Case No. 49A05-1412-CR-596 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Stanley Kroh, Appellee-Plaintiff. Magistrate Trial Court Cause No. 49G16-1409-CM-42762

Pyle, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015 Page 1 of 5 [1] Eric Dillon (“Dillon”), appeals his conviction, after a bench trial, for Class B

misdemeanor criminal recklessness.1 On appeal, he argues that the evidence is

insufficient to support his conviction because the State did not prove he

committed an act that created a substantial risk of injury to the victim.

Concluding that sufficient evidence supports the trial court’s verdict, we affirm

Dillon’s conviction.

[2] Affirmed.

Issue [3] Whether sufficient evidence supports Dillon’s conviction.

Facts [4] Dillon and Rachel Riley (“Riley”) dated from December 2013 to June of 2014.

The two maintained contact after ending their relationship, and on August 13,

2014, Riley picked up Dillon from a family center on Illinois Street in Marion

County. While Riley was driving, the two began arguing. Dillon then called

an ex-girlfriend on his cellular phone. In response, Riley snatched away the

headphones Dillon used with the phone and threw them out of the window.

Dillon responded by taking Riley’s cell phone and throwing it out of the

window.

1 IND. CODE § 35-42-2-2(a).

Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015 Page 2 of 5 [5] Riley continued driving and arrived at the area of 16th and Rural Street. She

and Dillon were still arguing when Dillon grabbed the steering wheel, jerked it,

and caused the vehicle to swerve in and out of its lane of travel. At trial, Riley

testified that Dillon caused the vehicle to swerve in this manner at least three

times before she was able to stop the car at 10th and Rural Street. When Dillon

exited the vehicle, he struck Riley on the side of her head, causing pain.

[6] On September 16, 2014, the State charged Dillon with Class A misdemeanor

battery2 and Class B misdemeanor criminal recklessness. A bench trial was held

on November 25, 2014, and the trial court found Dillon guilty as charged. The

trial court sentenced him to three hundred sixty-five (365) days in Community

Corrections on the battery conviction and a concurrent sentence of one hundred

eighty (180) days on the criminal recklessness conviction. Dillon now appeals

his conviction for criminal recklessness.

Discussion [7] Dillon appeals his conviction for Class B misdemeanor criminal recklessness.

When reviewing the sufficiency of the evidence to support a conviction, appellate courts must consider only the probative evidence and reasonable inferences supporting the verdict. It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. To preserve this structure, when appellate courts are confronted with conflicting evidence,

2 I.C. § 35-42-2-1(b).

Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015 Page 3 of 5 they must consider it most favorably to the trial court’s ruling. Appellate courts affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt. It is therefore not necessary that the evidence overcome every reasonable hypothesis of innocence. The evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.

Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

and citations omitted) (emphasis in original).

[8] In order to convict Dillon of criminal recklessness as charged, the State had to

prove that he recklessly, knowingly, or intentionally performed an act that

created a substantial risk of bodily injury to Riley. I.C. § 35-42-2-2(a); (App.

16). A person engages in conduct “recklessly” if he engages in the conduct in

plain, conscious, and unjustifiable disregard of harm that might result and the

disregard involves a substantial deviation from acceptable standards of conduct.

I.C. § 35-41-2-2(c).

[9] Dillon argues that insufficient evidence supports his conviction because the

State failed to present evidence that his act created a substantial risk of injury.

He relies on our opinion in Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind. Ct.

App. 1995), reh’g denied. There, the defendant went to a vacant lot and fired

two or three shots from his .22 caliber rifle at some geese. Id. at 1176. The

defendant fired the shots in the direction of Shelbyville Road, which bordered

the vacant lot. Id. We concluded that the possibility of a motorist passing by

on Shelbyville Road at the time the defendant fired his gun presented “only a

Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015 Page 4 of 5 remote risk of bodily injury.” Id. at 1177. Because the record contained no

evidence that anyone was in or near the defendant’s line of fire, we held that the

State had failed to prove the actual existence of substantial risk of bodily injury

to another person. Id.

[10] Dillon contends, similar to the argument in Boushehry, that because the State

presented no evidence of other vehicles or pedestrians in the road, or that a

collision almost occurred, we should reverse his conviction. We disagree. The

evidence most favorable to the judgment shows that Dillon repeatedly jerked

the wheel of Riley’s vehicle while she was driving, causing the vehicle to leave

its lane of travel at least three times. This behavior is certainly a substantial

deviation from acceptable standards of conduct, and the trial court could

reasonably infer that Dillon’s actions created a substantial risk of Riley losing

control of the vehicle, crashing, and suffering bodily injury. The fact that no

pedestrians or other vehicles were present did not lessen the risk of Riley losing

control of her vehicle. Accordingly, sufficient evidence supports Dillon’s

conviction.

Affirmed.

Vaidik, C.J., and Robb, J., concur.

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