Ricardo Bueso v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: February 19, 2019
• Docket: 18A-CR-1879
• Status: Published

Opinion

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Feb 19 2019, 10:55 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 Barbara J. Simmons Curtis T. Hill, Jr. Oldenburg, Indiana Attorney General of Indiana Marjorie Lawyer-Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Ricardo Bueso, February 19, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1879 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Amy M. Jones, Appellee-Plaintiff. Judge The Honorable Jason Reyome, Magistrate Trial Court Cause No. 49G08-1701-CM-3142

Riley, Judge.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1879 | February 19, 2019 Page 1 of 6 STATEMENT OF THE CASE [1] Appellant-Defendant, Richard Bueso (Bueso), appeals his conviction for

operating a motor vehicle while intoxicated endangering a person, a Class A

misdemeanor, Ind. Code § 9-30-5-2(a)&(b).

[2] We affirm.

ISSUE [3] Bueso presents this court with one issue on appeal, which we restate as:

Whether the State presented sufficient evidence beyond a reasonable doubt to

sustain his conviction for operating a vehicle while intoxicated endangering a

person.

FACTS AND PROCEDURAL HISTORY [4] At approximately 9:00 p.m. on January 23, 2017, Indianapolis Metropolitan

Police Department Officer Jason Rauch (Officer Rauch) stopped at a four-way

stop at the intersection at 42nd Street and Sheridan Avenue, in Indianapolis,

Indiana while patrolling the residential area. Before entering the intersection,

he heard an engine revving through his open window. He observed “a silver

GMC Terrain going fast and speeding up before the intersection[.]” (Transcript

p. 12). Concerned that the vehicle would not stop at the stop sign before

entering the intersection, Officer Rauch waited at the stop sign. “[S]ure

enough, the Terrain came through and slammed on the brakes . . . and then

came to a stop in the middle of the intersection and it jerked back and forth and

then just kept going.” (Tr. p. 12). “Had [Officer Rauch] kept going, [he] would Court of Appeals of Indiana | Memorandum Decision 18A-CR-1879 | February 19, 2019 Page 2 of 6 have been hit.” (Tr. p. 19). The vehicle proceeded through the intersection and

continued eastbound on 42nd Street.

[5] Officer Rauch activated his lights and siren to initiate a traffic stop. The vehicle

came to a stop at an angle on the side of the road. The driver of the vehicle,

Bueso, was identified by an identification card. Officer Rauch observed that

Bueso emanated an odor of alcohol, had watery eyes, and stumbled when he

exited the vehicle. Because Bueso could not communicate in English, Officer

Rauch called for another officer, applied for a search warrant, and transported

Bueso to the hospital for a blood draw. The blood test indicated that Bueso had

a .142% per volume of ethyl alcohol concentration.

[6] On March 14, 2017, the State filed an Information, charging Bueso with Count

I, operating a motor vehicle while intoxicated endangering a person, as a Class

A misdemeanor; Count II, operating a vehicle with an ACE of .15 or more as a

Class A misdemeanor; and Count III, disregarding a stop sign, a Class C

infraction. Following a bench trial on July 12, 2018, the trial court found Bueso

guilty as to Count I and III, but not guilty as to Count II. The trial court

sentenced Bueso to 180 days, with 176 days suspended and 176 days probation.

[7] Bueso now appeals. Additional facts will be provided as necessary.

DISCUSSION AND DECISION [8] Bueso contends that the State failed to present sufficient evidence beyond a

reasonable doubt to support his conviction for operating a vehicle while

intoxicated endangering a person. When reviewing the sufficiency of the Court of Appeals of Indiana | Memorandum Decision 18A-CR-1879 | February 19, 2019 Page 3 of 6 evidence to support a conviction, we must consider only the probative evidence

and reasonable inferences supporting the judgment. McGowan v. State, 89

N.E.3d 424, 427 (Ind. Ct. App. 2017). We do not assess witness credibility or

reweigh the evidence. Id. We consider conflicting evidence most favorably to

the trial court’s ruling. Id. We affirm the conviction unless no reasonable fact-

finder could find the elements of the crime proven beyond a reasonable doubt.

Id. It is not necessary that the evidence overcome every reasonable hypothesis

of innocence. Id. The evidence is sufficient if an inference may reasonably be

drawn from it to support the judgment. Id.

[9] In order to convict Bueso, the State was required to establish beyond a

reasonable doubt that Bueso was intoxicated and operated his vehicle in a

manner that endangered a person. See I.C. § 9-30-5-2(a)&(b). Bueso does not

challenge the evidence that he was intoxicated; rather, he disputes that although

he drove through the stop sign at the intersection, he did not endanger a person

as required by the statute.

[10] “The element of endangerment can be established by evidence showing that the

defendant’s condition or operating manner could have endangered any person,

including the public, the police, or the defendant.” Staley v. State, 895 N.E.2d

1245, 1249 (Ind. Ct. App. 2008). Endangerment does not require that a person

other than the defendant be in the path of defendant’s vehicle or in the same

area to obtain a conviction. Id. at 1251. “Thus, it is sufficient that the

defendant’s condition renders driving unsafe.” Id.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1879 | February 19, 2019 Page 4 of 6 [11] In support of his argument, Bueso refers to Outlaw v. State, 929 N.E.2d 196 (Ind.

2010), in which our supreme court held that the State is required to present

evidence of endangerment apart from simply relying on a defendant’s

intoxication. In Outlaw, defendant was stopped for a license plate that was not

illuminated rather than for any erratic or unlawful driving. Id. However, based

on the evidence before us, we conclude that Outlaw is inapposite to the case at

hand.

[12] The record supports that Bueso approached the stop sign at the intersection at a

high rate of speed. His vehicle blew past the stop sign and came abruptly to a

stop in the middle of the intersection, causing the car to rock back and forth.

Officer Rauch testified that Bueso would have collided with the patrol car if

Officer Rauch had not waited at the stop sign to make sure Bueso was going to

stop. Not only did Bueso’s driving pose a threat to his own safety but also to

Officer Rausch’s. See also Staten v. State, 946 N.E.2d 80 (Ind. Ct. App. 2011)

(finding endangerment where defendant drove his vehicle left of center line and

through a 3-way stop sign without stopping or slowing down), reh’g denied, trans.

denied. Accordingly, as Bueso’s high speed and erratic driving endangered

himself and Officer Rauch, we affirm the trial court’s conviction.

CONCLUSION [13] Based on the foregoing, we hold that the State presented sufficient evidence

beyond a reasonable doubt to support Bueso’s conviction for operating a vehicle

while intoxicated endangering a person.

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1879 | February 19, 2019 Page 5 of 6 [14] Affirmed.

[15] Kirsch, J. and Robb, J. concur

Court of Appeals of Indiana | Memorandum Decision 18A-CR-1879 | February 19, 2019 Page 6 of 6