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
