Gerardo Hurtado v. State of Indiana (mem. dec.)

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 06 2020, 9:11 am

court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Jane Ann Noblitt Curtis T. Hill, Jr. Columbus, Indiana Attorney General of Indiana

Myriam Serrano Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Gerardo Hurtado, May 6, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2345 v. Appeal from the Bartholomew Superior Court State of Indiana, The Honorable Kathleen Tighe Appellee-Plaintiff Coriden, Judge The Honorable Jack A. Tandy, Senior Judge Trial Court Cause No. 03D02-1703-F6-1536

Altice, Judge.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 1 of 9 Case Summary [1] Following a jury trial, Gerardo Hurtado was convicted of resisting law

enforcement as a Level 6 felony. On appeal, he argues that the State failed to

present sufficient evidence to rebut his defense of duress.

[2] We affirm.

Facts & Procedural History [3] The facts most favorable to Hurtado’s conviction follow. Around 7:00 a.m. on

March 11, 2017, Bartholomew County Sheriff’s Deputy Kevin Abner was on

routine patrol traveling southbound in the left lane of US 31, a four-lane divided

highway, at a speed of approximately 55 mph. Deputy Abner observed a grey-

colored vehicle approaching from behind in the right lane at a fast speed. As

the vehicle passed Deputy Abner, the driver, later identified as Hurtado, gave

Deputy Abner a “thumbs up.” Transcript Vol. 2 at 182. Deputy Abner pulled in

behind Hurtado and determined that Hurtado was driving approximately 70

mph in a 55-mph zone. Deputy Abner turned on his emergency lights to

initiate a traffic stop, but Hurtado continued driving. Deputy Abner then

turned on his siren. Hurtado did not pull over, but rather changed lanes to pass

slower traffic. Hurtado eventually came to a stop in the left lane at a red light.

Deputy Abner got out of his car and ordered Hurtado, whose window was

down, to shut off the car’s engine. Hurtado turned and looked at Deputy Abner

and said, “no I’m good” and gave him a “thumbs up” again. Id. at 183. When

the light turned green, Hurtado took off. Deputy Abner got back in his car and

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 2 of 9 continued to follow Hurtado through Columbus. When Hurtado came to a

stop at another red light, Deputy Abner got out of his vehicle and again ordered

Hurtado to shut off his car. Without responding, Hurtado took off when the

light turned green.

[4] By this time, Deputy Nick Martoccia had pulled in behind Deputy Abner, and

they both followed Hurtado with their lights and sirens activated. Four officers

with the Columbus Police Department had set up to help stop Hurtado by

placing tire deflation devices in Hurtado’s lane of travel. As Hurtado

approached this, he slowed down, made a U-turn, and headed north in the

southbound lanes of travel. After he passed a lane divider, Hurtado moved

over to the northbound lanes. Two sheriff’s deputies and four Columbus police

officers in six different vehicles pursued Hurtado with their lights and sirens

activated as he drove north on US 31. Columbus Police Officer Andrew Plank

was directly behind Hurtado and observed that Hurtado was driving erratically,

changing lanes without signaling, driving at speeds up to 93 mph, and driving

through red lights. When Hurtado turned onto the ramp for I-65, the police

pursuit was terminated for safety reasons.

[5] Approximately thirty minutes later, Hurtado was involved in a car accident in

Columbus. A witness to the accident described how Hurtado “flew past” her in

the left lane, ran the red light at which she was stopped, and “T-boned” a car

that was going through the intersection. Id. at 208. The witness estimated that

Hurtado was driving about 50 mph when he entered the intersection against the

red light.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 3 of 9 [6] Officer Plank testified that he came upon “a serious accident” involving a gold

vehicle and Hurtado’s vehicle. Id. at 228. Officer Plank first determined that

the driver of the gold vehicle was seriously injured and called for an ambulance.

Officer Plank then knocked on Hurtado’s window and asked if he was okay.

Hurtado did not respond, but instead sat “kind of emotionless, kind of rocking

back and forth.” Id. at 229. The car door was locked, so Officer Plank asked

Hurtado to open the door, but Hurtado did not comply.

[7] Columbus Police Officers John Velten and Chris Clapp were dispatched to the

accident scene. The officers approached Hurtado’s vehicle and ordered him to

get out of his car. When he did not comply, Officer Clapp used his baton to

break the front passenger window and unlock the doors. When the officers

opened the doors, Hurtado said, “come on Mother F*ckers.” Id. at 231.

Hurtado continued to ignore verbal commands to exit the vehicle. After an

officer removed Hurtado’s seat belt, Hurtado grabbed the steering wheel such

that the officers were unable to remove him from the car. Officer Clapp then

deployed his Taser, but it was ineffective. It took five officers to physically

remove Hurtado from the car. Once on the ground, Hurtado rolled onto his

stomach and placed his hands under his torso. The police “got into a tug of war

trying to get his hands out from underneath him.” Id. at 143. After Officer

Clapp delivered several baton strikes to Hurtado’s shoulder, the other officers

were able to free Hurtado’s hands and place him in handcuffs.

[8] On March 15, 2017, the State charged Hurtado with Count I, causing serious

bodily injury while operating a vehicle with a schedule I or II substance in the

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 4 of 9 body, a Level 6 felony; Count II, resisting law enforcement by a vehicle, a Level

6 felony; Count III, criminal recklessness, a Level 6 felony; and Count IV,

resisting law enforcement, a Class A misdemeanor. On September 25, 2017,

the State moved to dismiss Count III, which the trial court granted. On

January 29, 2019, the State moved to dismiss Count I due to unavailability of

an essential witness, which the trial court also granted. A jury trial on the two

resisting law enforcement charges was held August 15-16, 2019.

[9] As his defense, Hurtado claimed that he was acting under duress. He testified

that he lives in northwest Indiana and was in Columbus to handle an issue

related to his adult son, who was in a hospital there. Hurtado maintained that

he did not agree with the plan of care for his son and was looking to have his

son transferred. Hurtado testified that his mother had contacted the police,

which led him to believe that the police were going to help him. As to the

specific day in question, Hurtado testified that he had come to town to get his

son and had parked in a parking lot outside a radio station. Several police

officers arrived and instructed him to move to a different location. Hurtado

then went to a Village Pantry, where a store employee asked him to leave

because he was being too loud. Hurtado testified that in the parking lot outside

the Village Pantry, he “almost got shot and killed by three (3) gunman,” who he

described as law enforcement or military type individuals. Transcript Vol. 3 at

27. Hurtado maintained that a police officer arrived at the Village Pantry and

asked him to leave town. Hurtado headed north but stopped at a Flying J gas

station, where he claims he was approached by a police officer and a sheriff,

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 5 of 9 who offered to help him. Hurtado did not know where the officers were from

but maintained that they followed him back to Columbus. Hurtado testified

that the police did a “switcheroo” on him and, at some point, Deputy Abner

began following him rather than the officers with whom he had spoken at the

Flying J. Transcript Vol. 3 at 26. Hurtado explained that he did not stop when

Deputy Abner turned on his lights and sirens because he was in “fight or flight”

mode and “concerned for [his] life” given what had happened to him hours

earlier at the Village Pantry. Id. at 28. Hurtado also testified that he did not

stop because an eighty-year-old man had told him that he did not trust the

police in Columbus. Hurtado also explained that he refused to get out of the

car following the accident because, a police officer had a gun pointed at him

and he feared for his life.

[10] Upon Hurtado’s request, the trial court instructed the jury on the defense of

duress. The jury ultimately found Hurtado guilty of resisting law enforcement

by a vehicle, a Level 6 felony, and not guilty of resisting law enforcement as a

Class A misdemeanor. The trial court entered a judgment of conviction and

sentenced Hurtado to two years, all suspended except for 213 days for time

served. Hurtado now appeals. Additional facts will be provided below as

necessary.

Discussion & Decision [11] Hurtado argues that the State failed to present sufficient evidence to rebut his

defense of duress, and therefore, his conviction must be reversed. On review,

the same standard applies as with other challenges to the sufficiency of the Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 6 of 9 evidence. Gallagher v. State, 925 N.E.2d 350, 353 (Ind. 2010). We will affirm

the conviction if the probative evidence and reasonable inferences drawn from

that evidence could have allowed a reasonable trier of fact to find the defendant

guilty beyond a reasonable doubt. Id.

[12] Ind. Code § 35-41-3-8(a) provides in relevant part that it “is a defense that the

person who engaged in the prohibited conduct was compelled to do so by threat

of imminent serious bodily injury to himself or another person.” “The

compulsion that will excuse a criminal act must be clear and conclusive.”

Murrell v. State, 960 N.E.2d 854, 857 (Ind. Ct. App. 2012). Furthermore, that

compulsion must arise without the negligence or fault of the defendant claiming

such defense. Id. The alternative with which the defendant is faced must be

instant and imminent. Id. Additionally, per the language of the statute,

“[c]ompulsion under this section exists only if the force, threat, or

circumstances are such as would render a person of reasonable firmness

incapable of resisting the pressure.” I.C. § 35-41-3-8(a).

[13] Hurtado argues that his testimony demonstrates he was acting under duress

when he failed to stop for Deputy Abner and later led six police officers on a

high-speed chase. He also asserts that “[i]f his defense of duress was convincing

as to [the Class A misdemeanor resisting offense], then it should have been just

as convincing as to [the Level 6 felony resisting offense].” Appellant’s Brief at 21.

[14] Here, on cross-examination, the State repeatedly asked Hurtado if he had been

threatened by any police officers, but Hurtado was unresponsive to this line of

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 7 of 9 questioning. While repeatedly stating that his life had been threatened,

Hurtado never identified any of the officers involved in the police chase as

being the source of any of those threats. He testified only that “[t]he fight or

flight mechanism is part of how we are wired” and maintained that he did not

want to fight the police. Transcript Vol. 3. at 33. Moreover, even if he was

threatened by armed individuals at a Village Pantry and then later assisted by

officers, there is no evidence that hours later, Hurtado feared for his life when,

after Hurtado passed Deputy Abner, Deputy Abner attempted to pull him over

for speeding. In other words, the State presented evidence from which the jury

could have determined that a reasonable person would not have believed that

Deputy Abner’s attempt to pull Hurtado over for speeding presented a threat of

imminent serious bodily injury. The State presented sufficient evidence to rebut

Hurtado’s claim of duress as it pertained to his conduct giving rise to his Level 6

felony resisting law enforcement conviction.

[15] The verdict of not guilty for the Class A misdemeanor offense does not

necessarily mean that the jury accepted his defense of duress. Even if the jury

did accept his claim of duress as it related to his conduct following the accident,

such does not mean that the jury was obligated to have found that he acted

under duress when he failed to stop for Deputy Abner. See Beattie v. State, 924

N.E.2d 643 (Ind. 2010) (holding that where there is sufficient evidence to

support a jury’s verdicts, we will not review such verdicts for inconsistencies).

[16] Judgment affirmed.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 8 of 9 Bailey, J. and Crone, J., concur.

Court of Appeals of Indiana | Memorandum Decision 19A-CR-2345 | May 6, 2020 Page 9 of 9