MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                                   FILED
this Memorandum Decision shall not be                                                Nov 30 2017, 8:48 am
regarded as precedent or cited before any                                                CLERK
court except for the purpose of establishing                                         Indiana Supreme Court
                                                                                        Court of Appeals
the defense of res judicata, collateral                                                   and Tax Court


estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Ruth Johnson                                                Curtis T. Hill, Jr.
Valerie K. Boots                                            Attorney General of Indiana
Marion County Public Defender Agency
                                                            Henry A. Flores, Jr.
Appellate Division                                          Deputy Attorney General
Indianapolis, Indiana                                       Indianapolis, Indiana



                                             IN THE
     COURT OF APPEALS OF INDIANA

Eric Ramon Davilla-Castro, 1                                November 30, 2017
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            49A02-1706-CR-1292
         v.                                                 Appeal from the
                                                            Marion Superior Court
State of Indiana,                                           The Honorable
Appellee-Plaintiff.                                         Angela Dow Davis, Judge
                                                            The Honorable
                                                            Peggy R. Hart, Magistrate
                                                            Trial Court Cause No.
                                                            49G16-1609-F6-36976




1
 We note that, although defendant’s name is spelled Davilla-Castro throughout the record, at trial, the
defendant spelled his name as Davila-Castro, i.e., Davila was spelled with one “l.” Tr. Vol. II at 42.

Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1292 | November 30, 2017              Page 1 of 8
      Kirsch, Judge.


[1]   Eric Ramon Davilla-Castro (“Davilla-Castro”) appeals his conviction of Level 6

      felony criminal recklessness,2 claiming that his conviction was not supported by

      sufficient evidence.


[2]   We affirm.


                                      Facts and Procedural History
[3]   The facts most favorable to the judgment follow. On September 17, 2016,

      Diana Pizarro3 (“Pizarro”) and her fiancé, Ulises Grande (“Grande”), were

      caring for Grande’s three children from his previous relationship with Alejandra

      Tellez (“Tellez”). Around 3:00 a.m., the youngest child, still a baby, was

      crying. This prompted Pizzaro and Grande to ask Tellez, who was living with

      Davilla-Castro, if they could bring the baby to her. Tellez agreed.


[4]   When Pizarro and Grande arrived at Tellez’s apartment, they saw Tellez

      running into the street. Tellez was crying and said that she was hurt and that

      Davilla-Castro had been strangling her. Pizarro, Grande, and Tellez decided to

      go into the apartment. In the hallway, they found Davilla-Castro, who was

      “very mad” and screaming. Tr. Vol. II at 15. Davilla-Castro threatened to fight

      Grande, took off his belt, and approached Grande while wrapping the belt




      2
          See Ind. Code § 35-42-2-2(b).
      3
       In the record before us, Diana Pizarro is also referred to as Diana Ticarro; however, we will use only
      Pizarro. Tr. Vol. II at 4, 34, 40, 56, 57, 59.

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      around his right hand. Id. at 15, 25. Based on Davilla-Castro’s aggression,

      Grande told Pizarro and Tellez to leave. Tellez called the police.


[5]   Soon thereafter, Pizarro, who was concerned for Grande’s safety, went back

      into the apartment and found Davilla-Castro and Grande fighting. As she

      entered, Pizarro saw Davilla-Castro with a knife in his right hand, and Grande

      holding Davilla-Castro by the wrists. Grande told Pizarro to take the knife

      from Davilla-Castro, which she did, and in the process cut Davilla-Castro’s

      hand. Pizarro said that she “was very scared” at that moment because Davilla-

      Castro was trying to “stab” Grande. Id. at 17. Pizarro was concerned for

      Grande’s life. Id. To prevent Davilla-Castro from grabbing another knife,

      Pizarro put the knife she had taken from Davilla-Castro, as well as all the other

      household knives, into her vehicle.


[6]   Indianapolis Metropolitan Police Officer Mitchell Farnsley (“Officer Farnsley”)

      responded to the call of a domestic disturbance. There, he found four

      individuals in the apartment and separated them for later interview.

      Encountering Davilla-Castro, Officer Farnsley noted that he was agitated with

      Grande. Davilla-Castro appeared heavily intoxicated and had a bleeding cut on

      his hand. It was Officer Farnsley’s opinion that Davilla-Castro had sustained

      that injury “during the struggle with the knife being taken away from him.” Id.

      at 37. Talking with Grande, Officer Farnsley noted that Grande was “a little

      relieved,” “exhausted,” “sweaty,” and “a little nervous.” Id. at 31-32. Grande

      had “fresh cuts” on his face that were bleeding. Id. at 32. Officer Farnsley



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      testified that he arrested Davilla-Castro for criminal recklessness based on his

      conduct involving the knife. Id. at 38.


[7]   In September 2016, the State charged Davilla-Castro with Level 6 felony

      criminal recklessness.4 At the March 2017 bench trial, Pizarro and Officer

      Farnsley testified for the State, and Davilla-Castro testified in his defense,

      saying that he had not held the knife. Instead, he said that he had only touched

      the blade when he tried to remove the knife from Grande, and that is when he

      cut his hand. Tr. Vol. II at 53, 54. The trial court found Davilla-Castro guilty as

      charged and sentenced him to 365 days with ten days executed in jail and the

      rest suspended to probation. Davilla-Castro now appeals.


                                       Discussion and Decision
[8]   Indiana Code section 35-42-2-2 provides, “A person who recklessly, knowingly,

      or intentionally performs an act that creates a substantial risk of bodily injury to

      another person commits criminal recklessness,” a Class B misdemeanor.

      However, the offense is a Level 6 felony if “it is committed while armed with a

      deadly weapon.” Ind. Code § 35-42-2-2(b). Davilla-Castro’s sole claim on

      appeal is that the evidence was insufficient to support his conviction of Level 6

      felony criminal recklessness.




      4
        The State also charged Davilla-Castro with Level 6 felony criminal confinement, Level 6 felony
      strangulation, Class A misdemeanor battery resulting in bodily injury, and Class A misdemeanor domestic
      battery; however, those charges were dismissed at the commencement of the bench trial. Tr. Vol. II at 7-8,
      19-20.

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[9]    Sufficiency of evidence claims “face a steep standard of review.” Griffith v.

       State, 59 N.E.3d 947, 958 (Ind. 2016). When reviewing challenges to the

       sufficiency of the evidence, we do not reweigh the evidence or assess the

       credibility of witnesses. Bell v. State, 31 N.E.3d 495, 499 (Ind. 2015). Instead,

       “we look to the evidence and reasonable inferences drawn therefrom that

       support the [judgment] and will affirm the conviction if there is probative

       evidence from which a reasonable [fact-finder] could have found the defendant

       guilty beyond a reasonable doubt.” Id. A conviction may be sustained on

       appeal on the uncorroborated testimony of a single witness or victim. Lay v.

       State, 933 N.E.2d 38, 42 (Ind. Ct. App. 2010), trans. denied. Moreover, a

       conviction may be sustained on circumstantial evidence alone so long as the

       circumstantial evidence supports a reasonable inference of guilt. Gonzalez v.

       State, 908 N.E.2d 338, 340 (Ind. Ct. App. 2009).


[10]   Davilla-Castro’s charging information provided, in relevant part, as follows:


               On or about September 17, 2016, [Davilla-Castro] did recklessly,
               with a deadly weapon, to wit: a knife, perform[] an act, that is:
               walking at and toward the person of Ulises Grande and/or Diana
               [Pizarro] with a knife, that created a substantial risk of bodily
               injury to Ulises Grande and/or Diana [Pizarro].


       Appellant’s App. Vol. II at 19. Thus, to convict Davilla-Castro of Level 6 felony

       criminal recklessness, the State had to prove beyond a reasonable doubt that (1)

       he (2) recklessly, (3) with a knife, (4) walked at or toward the person of Grande

       or Pizarro, (5) thereby, creating a substantial risk of bodily injury to either


       Court of Appeals of Indiana | Memorandum Decision 49A02-1706-CR-1292 | November 30, 2017   Page 5 of 8
       Grande or Pizarro. Davilla-Castro focuses on the fourth element,5 contending

       that his conviction cannot stand because there was no direct evidence to

       support the element that he walked at or toward Grande or Pizarro with a knife,

       and the circumstantial evidence does not support a reasonable inference of

       such. Appellant’s Br. at 8-10 We disagree.


[11]   Here, the State presented evidence that Grande and Pizarro were at Davilla-

       Castro’s apartment to drop off Tellez’s baby and were met outside by Tellez

       crying and saying that Davilla-Castro had hurt her. Tr. Vol. II at 10, 11.

       Pizarro, Grande, and Tellez all entered the apartment and found Davilla-Castro

       very mad and screaming. Id. at 15. Davilla-Castro took off his belt and

       wrapped it around his wrist as he approached Grande and threatened to fight

       him. Id. Due to Davilla-Castro’s aggressive actions, Pizarro and Tellez left the

       apartment. Id. Pizarro, concerned for Grande’s safety, returned to the

       apartment and saw Davilla-Castro and Grande fighting. Id. at 16. Davilla-

       Castro had a knife in his right hand, and Grande was holding onto Davilla-

       Castro’s wrists. Id. at 16, 26. Pizarro said that she “was very scared” at that

       moment because Davilla-Castro was trying to “stab” Grande. Id. at 17.

       Pizarro was concerned for Grande’s life. Id. At Grande’s instruction, Pizarro

       took the knife out of Davilla-Castro’s hand, and in the struggle, Davilla-Castro




       5
         To the extent Davilla-Castro argues that he did not have a knife, we are unpersuaded. Pizarro testified at
       trial that Davilla-Castro held a knife. While Davilla-Castro testified at trial that he never held a knife, his
       possession of a knife was a question of fact, which the trial court decided in favor of the State. We cannot
       reweigh that evidence. Krueger v. State, 56 N.E.3d 1240, 1244 (Ind. Ct. App. 2016), trans. denied.

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       cut his hand. Id. at 17, 18. Responding to the 911 call, Officer Farnsley noted

       that Davilla-Castro was agitated with Grande. Id. at 32. It was Officer

       Farnsley’s opinion that Davilla-Castro sustained the cut on his hand “during

       the struggle with the knife being taken away from him.” Id. at 37. Grande

       appeared exhausted, sweaty, and a little nervous and relieved. Id. at 31-32.

       Officer Farnsley noted that Grande had fresh cuts on his face that were

       bleeding. Id. at 32. From this evidence, the finder of fact court could have

       made a reasonable inference that Davilla-Castro, agitated with Grande,

       approached him with a knife in order to engage him in a fight and to attempt to

       stab him, thereby creating a substantial risk of bodily injury.


[12]   Davilla-Castro contends that the trial court drew an unreasonable inference

       from the above facts. He argues that the evidence showed only that: Davilla-

       Castro and Grande were involved in “a mutual fight”; Pizarro did not see how

       Grande’s injuries occurred; “Grande’s minor injuries to his head were not stab

       wounds, but appear more characteristic of a fist fight”; and the laceration

       Davilla-Castro sustained to the webbing between his thumb and index finger is

       consistent with his attempting to grab the blade of the knife as it was being held

       by someone else. Appellant’s Br. at 11. Davilla-Castro’s alternative version of

       the facts is an invitation for us to reweigh the evidence and judge the credibility

       of the witnesses, which we cannot do. Krueger v. State, 56 N.E.3d 1240, 1244

       (Ind. Ct. App. 2016), trans. denied. Accordingly, we conclude that the State

       presented sufficient evidence to support Davilla-Castro’s conviction for Level 6

       felony criminal recklessness.

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[13]   Affirmed.


[14]   Najam, J., and Brown, J., concur.




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