MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                   FILED
this Memorandum Decision shall not be                               Jul 22 2016, 8:29 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.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Megan Shipley                                            Gregory F. Zoeller
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         George P. Sherman
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Calvin Castillo,                                         July 22, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1511-CR-1783
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Amy J. Barbar,
Appellee-Plaintiff                                       Magistrate
                                                         Trial Court Cause No.
                                                         49G02-1501-F5-581



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016         Page 1 of 16
[1]   Calvin Castillo appeals his convictions for Leaving the Scene of an Accident

      Resulting in Death,1 a Level 5 felony, and Operating a Vehicle While

      Intoxicated,2 a Class A misdemeanor. Finding no error, we affirm.


                                                        Facts
[2]   In the early morning hours of January 3, 2015, Castillo decided to leave his

      Indianapolis home following an argument with his wife. He took two pills of

      the anti-anxiety drug clonazepam and drove to a liquor store, where he bought

      a sixteen-ounce beer and drank it in the parking lot. Castillo then tried to get in

      touch with a friend, but after failing to do so, he decided to drive back home.


[3]   At around 3 a.m., Castillo crashed his car into a telephone pole at the corner of

      Washington Street and Colorado Avenue. Judy Ollis heard the crash from

      inside her home and ran outside to help. She found Castillo in his car and a

      man, later identified as Joseph McKenney, lying face down in her yard.

      Castillo was injured, but conscious, and several people were trying to help him

      get out of his car.


[4]   Ollis retrieved her cell phone from inside her home, called 911, and returned to

      Castillo’s car. Ollis asked Castillo if he was okay and told him that the police

      were on their way. Castillo told Ollis that he was fine. McKenney, however,




      1
        Ind. Code § 9-26-1-1.1. This section was substantially amended effective July 1, 2015. Here, we refer to the
      statute as it existed on the date that Castillo committed the offense.
      2
          Ind. Code § 9-30-5-2.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016             Page 2 of 16
      was unresponsive. Ollis went inside her home to get McKenney a blanket.

      When she returned, Castillo was gone, and she could not see him on either

      Washington or Colorado. Police and paramedics arrived shortly thereafter and

      McKenney was transported to the hospital. He later died as a result of blunt

      force trauma injuries.


[5]   Officers later found Castillo walking in an alley a few blocks away from the

      scene of the crash. Castillo, who appeared intoxicated, told the officers that he

      had been in an accident. He was then transported to a hospital, where he tested

      positive for alcohol and clonazepam.


[6]   On January 6, 2015, the State charged Castillo with level 5 felony leaving the

      scene of an accident resulting in death and class A misdemeanor operating a

      vehicle while intoxicated. Trial was held on August 27, 2015. At the close of

      evidence, Castillo moved for a directed verdict on the operating while

      intoxicated charge and the trial court denied the motion. A jury then found

      Castillo guilty as charged. The trial court sentenced Castillo to five years, with

      three years executed on Community Corrections and two years suspended to

      probation, for leaving the scene of an accident resulting in death, and one year

      suspended to probation for operating a vehicle while intoxicated. The trial

      court ordered the sentences to run consecutively, resulting in a total sentence of

      three years in Community Corrections and three years suspended to probation.

      Castillo now appeals.




      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 3 of 16
                                   Discussion and Decision
[7]   Castillo makes two arguments on appeal. He first argues that the trial court

      committed fundamental error by erroneously instructing the jury on the crime

      of leaving the scene of an accident resulting in death, and he asks us to remand

      the case for a new trial on this charge. He also argues that the State presented

      insufficient evidence from which a reasonable jury could find him guilty of class

      A misdemeanor operating a vehicle while intoxicated, and he asks us to vacate

      his conviction for this count.


                                         I. Jury Instruction
[8]   Castillo first takes issue with an instruction given to the jury. The instruction

      defines the crime of leaving the scene of an accident resulting in death and

      provides, in part:


              The driver of a vehicle who should reasonably have anticipated
              that his operation of the vehicle resulted in injury to a person is
              under a duty imposed by law to do the following:


              Immediately stop the vehicle at the scene of the accident or as
              close to the accident as possible in a manner that does not
              obstruct traffic more than is necessary; and


              Immediately return to and/or remain at the scene of the accident
              until the driver . . . gives the driver’s name and address and the
              registration number of the vehicle [and] exhibits the driver’s
              license . . . [to] any person involved in the accident . . . .


      Appellant’s App. p. 62 (emphasis added).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 4 of 16
[9]    While this language is a correct statement of the law as it existed on the date of

       trial, it is not a correct statement of the law as it existed on the date that Castillo

       committed the crime. This is important given the “well established rule of our

       criminal jurisprudence that the law which applies is that law in effect at the time

       the crime is committed.” Williams v. State, 706 N.E.2d 149, 160 n.7 (Ind. 1999).

       While the current version requires a driver to both stop his vehicle and return to,

       or remain at, the scene of the accident, the statute that existed on January 3,

       2015, seemed to require Castillo to do only one of those things. It provided

       that:

               The operator of a motor vehicle involved in an accident shall do
               the following:


               (1)      Either:


                        (A)       immediately stop the operator’s motor vehicle . . . or


                        (B)       remain at the scene of the accident until the
                                  operator . . . [g]ives the operator’s name and address
                                  and the registration number of the motor vehicle
                                  [and] [e]xhibits the operator’s driver’s license to any
                                  person involved in the accident . . . .


       Ind. Code § 9-26-1-1.1 (2015), amended by P.L. 188-2015, § 99 (emphases

       added).


[10]   Jury instructions are meant “to inform the jury of the law applicable to the facts

       without misleading the jury and to enable it to comprehend the case clearly and


       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 5 of 16
       arrive at a just, fair, and correct verdict.” Isom v. State, 31 N.E.3d 469, 484 (Ind.

       2015) (quotations omitted). An instruction is erroneous when, taken as a

       whole, it misstates the law or otherwise misleads the jury. Id. at 484-85.

       Because Castillo failed to object to this instruction, we will only reverse if we

       are persuaded that the error here was fundamental—meaning that the

       erroneous instruction was so prejudicial as to make a fair trial impossible.

       Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015).


[11]   Castillo argues that this error was indeed fundamental, in that it allowed the

       jury to convict him of something that was not illegal at the time he did it. He

       maintains that, under this instruction, the jury could have found him guilty of

       leaving the scene of an accident resulting in death if it found that he did not

       stop his vehicle and remain at, or return to, the scene. Failing to do both of

       these things was not a crime on January 3, 2015, as the law in effect on that

       date only required Castillo to do one of these things. Appellant’s Br. p. 15.


[12]   However, while the portion of the instruction relied on by Castillo was

       erroneous, we note that we must take the instruction as a whole when

       considering its likely effect on a jury. Isom, 31 N.E.3d at 484. Here, Castillo

       has been convicted of leaving the scene of an accident resulting in death.

       Following an accident resulting in death, in addition to stopping one’s vehicle

       and remaining at the scene, the current statute provides:

               If the accident results in the injury or death of another person, the
               operator shall . . .



       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 6 of 16
               (A)      provide reasonable assistance to each person injured in or
                        entrapped by the accident, as directed by a law
                        enforcement officer, medical personnel, or a 911 telephone
                        operator; and


               (B)      as soon as possible after the accident, immediately give
                        notice of the accident . . . [to] [t]he local police
                        department, . . . [t]he office of the county sheriff or the
                        nearest state police post, . . . [or] [a] 911 telephone
                        operator.


       I.C. § 9-26-1-1.1. Unlike the language that Castillo complains of, this language

       appeared in the statute in substantially the same form as it existed on the date of

       the accident. I.C. § 9-26-1-1.1 (2015).


[13]   Thus, because Castillo was in an accident involving the death of an individual,

       he was required to contact law enforcement, inform them of the accident, and

       provide the victim with reasonable assistance if instructed to do so. Were the

       jury to find that he failed to do this, he would be guilty of the crime of leaving

       the scene of an accident resulting in death as that crime was defined on January

       3, 2015. Id.


[14]   A review of the whole jury instruction reveals that the jury was required to find

       that Castillo failed to contact law enforcement and, as a result, failed to provide

       McKenney with any assistance that may have been requested. The instruction,

       in pertinent part, provides:

               Before you may convict the defendant, the State must have
               proved each of the following beyond a reasonable doubt:


       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 7 of 16
                                                        ***


               The defendant knowingly did not immediately return to and/or
               remain at the scene of the accident . . . [and] did not determine
               the need for and did not render reasonable assistance to the
               person injured or entrapped in the accident as directed by law
               enforcement officer, medical personnel, or 911 telephone
               operator and, did not as soon as possible after the accident,
               immediately give notice of the accident, or ensure that another
               person gives notice of the accident by the quickest means of
               communication to the local police department, the county sheriff
               or nearest police post, or a 911 telephone operator . . . .


       Appellant’s App. p. 63-64.


[15]   According to this instruction, before it could find Castillo guilty, the jury was

       required to find that he failed to report the accident to law enforcement and,

       therefore, failed to render any assistance that he may have been asked to give.

       The jury could not, as Castillo asserts, have found him guilty simply because he

       failed to stop and remain at the scene, which was not a crime on the date that he

       committed the act. Rather, the instruction required the jury to find that Castillo

       committed an act that would have been sufficient to constitute the crime of

       leaving the scene of an accident resulting in death as that crime existed on

       January 3, 2015. I.C. § 9-26-1-1.1 (2015). Accordingly, we find that he has

       suffered no prejudice.


                               II. Sufficiency of the Evidence
[16]   Castillo next argues that the State presented insufficient evidence to support his

       conviction for class A misdemeanor operating a vehicle while intoxicated.
       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 8 of 16
       When an appellant challenges the sufficiency of the evidence in support of a

       conviction, this Court considers only the probative evidence and the reasonable

       inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.

       2011). We will affirm the conviction unless no reasonable jury could have

       found the elements of the crime beyond a reasonable doubt. Id.


[17]   The class A misdemeanor version of the charge is an enhanced version that

       requires the State to prove, in addition to intoxication, that Castillo “operate[d]

       a vehicle in a manner that endanger[ed] a person.” I.C. § 9-30-5-2(b). Castillo

       argues that the State presented no evidence as to the manner in which he

       operated his vehicle, and he believes that his conviction should be reduced to

       the class C misdemeanor version of the offense. He notes that no one witnessed

       the accident and there was no evidence that he was speeding, driving without

       his headlights on, driving in the wrong lane, or otherwise driving erratically.

       Appellant’s Br. p. 24-25. He also points out the crash investigator could not

       determine who was at fault for the accident. Id. at 24. Accordingly, he argues

       that the accident could have been caused by McKenney suddenly stepping out

       into the street and that “there was no evidence to show that one scenario was

       more likely than the other.” Id. at 25.


[18]   Castillo relies on two previous decisions of this Court where we found the

       evidence insufficient to support a conviction for the class A misdemeanor

       version of this offense. In Outlaw v. State, we held that the State could not rely

       solely on evidence that a defendant was intoxicated to prove that he must have

       been driving in a dangerous manner. 918 N.E.2d 379, 381 (Ind. Ct. App.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 9 of 16
       2009). We noted that, because the element of endangerment enhances the

       underlying offense of operating a vehicle while intoxicated, “[b]y definition, the

       . . . statute requires more than intoxication to prove endangerment.” Id. at 382.

       Accordingly, we found the evidence insufficient to support a conviction for the

       class A misdemeanor offense where the State’s only evidence in support of

       endangerment was the fact that the defendant was intoxicated. Id. at 381.

       Similarly, in Dorsett v. State, we found evidence that an officer found the

       defendant intoxicated inside a parked car was insufficient to prove that the

       defendant had driven in a manner that endangered a person. 921 N.E.2d 529,

       533 (Ind. Ct. App. 2010).


[19]   These cases differ from Castillo’s in that, here, there was an accident. Castillo’s

       car was found crashed into a telephone pole and McKenney was found nearby

       in a yard. From this evidence, the jury could infer that Castillo lost control of

       his vehicle and crashed into McKenney before hitting the telephone pole. This

       would certainly constitute operating a vehicle in a manner that endangers

       another. Although Castillo hypothesizes that McKenney may have walked into

       the street in a manner that failed to allow Castillo enough time to stop, our

       Supreme Court has instructed us that, “in reviewing the sufficiency of the

       evidence supporting a conviction[,] it is not necessary for that evidence to

       overcome every conceivable hypothesis of innocence.” Lock v. State, 971

       N.E.2d 71, 78 (Ind. 2012). Accordingly, the jury could reasonably conclude




       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 10 of 16
       that, because most people in McKenney’s position would not choose to

       suddenly jump into the street, it is highly unlikely that that’s what he did.3


[20]   The judgment of the trial court is affirmed.


       May, J., concurs.
       Brown, J., concurs with a separate opinion.




       3
         As an aside, we note that other provisions of our criminal code allow the State to punish those who drive
       while intoxicated and kill another without requiring proof that the individual drove in a dangerous manner.
       Indiana Code section 9-30-5-5 provides that “[a] person who causes the death of another person when
       operating a vehicle . . . while intoxicated[,] commits a Level 5 felony.” Convictions for this offense and
       leaving the scene of an accident resulting in death, even if they arise from an incident in which only one
       individual was killed, would not violate the prohibition on double jeopardy. McElroy v. State, 864 N.E.2d 392
       (Ind. Ct. App. 2007).

       Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016           Page 11 of 16
                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Calvin Castillo,                                         Court of Appeals Case No.
                                                               49A02-1511-CR-1783
      Appellant-Defendant,

              v.

      State of Indiana,
      Appellee-Plaintiff.




      Brown, Judge, concurring.


[1]   I concur but write separately to clarify the statute defining the crime of leaving

      the scene of an accident resulting in death as it existed at the time of the

      incident. While the majority discusses portions of the statute in its analysis, I

      find it helpful to consider the statute as a whole and analyze how its subsections

      work together. At the time of the accident, Ind. Code § 9-26-1-1.1 provided:


              (a)      The operator of a motor vehicle involved in an accident
                       shall do the following:

                       (1)     Either:


      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 12 of 16
                         (A)      immediately stop the operator’s motor
                                  vehicle:

                                  (i)     at the scene of the accident; or

                                  (ii)    as close to the accident as possible in a
                                          manner that does not obstruct traffic
                                          more than is necessary; or

                         (B)      remain at the scene of the accident until the
                                  operator does the following:

                                  (i)     Gives the operator’s name and address
                                          and the registration number of the
                                          motor vehicle the operator was driving
                                          to any person involved in the accident.

                                  (ii)    Exhibits the operator’s driver’s license
                                          to any person involved in the accident
                                          or occupant of or any person attending
                                          to any vehicle involved in the accident.

                 (2)     If the accident results in the injury or death of
                         another person, the operator shall, in addition to the
                         requirements of subdivision (1):

                         (A)      provide reasonable assistance to each person
                                  injured in or entrapped by the accident, as
                                  directed by a law enforcement officer,
                                  medical personnel, or a 911 telephone
                                  operator; and

                         (B)      immediately give notice of the accident by the
                                  quickest means of communication to one (1)
                                  of the following:

                                  (i)     The local police department, if the
                                          accident occurs within a municipality.



Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 13 of 16
                                        (ii)    The office of the county sheriff or the
                                                nearest state police post, if the accident
                                                occurs outside a municipality.

                                                        *****

              (b)      An operator of a motor vehicle who knowingly or
                       intentionally fails to comply with subsection (a) commits
                       leaving the scene of an accident, a Class B misdemeanor.
                       However, the offense is:

                                                        *****

                       (3)     a Level 5 felony if the accident results in the death
                               of another person . . . .


      Ind. Code § 9-26-1-1.1 (eff. Jan. 1, 2015) (subsequently amended by Pub. L. No.

      188-2015, § 99 (eff. July 1, 2015)).


[2]   It is clear this section of the statute was divided into two subsections —

      subsection (a) set forth the duties of a motor vehicle operator involved in an

      accident and subsection (b) defined the crime of leaving the scene of an

      accident.


[3]   In defining the crime, subsection (b) referenced the duties of an operator under

      subsection (a) and provided that an operator who knowingly or intentionally

      failed to comply with those duties committed the crime. Subsection (b) also

      elevated the offense if the accident resulted in bodily injury, serious bodily

      injury, or death, and subsection (b)(3) provided the offense was a level 5 felony

      if the accident resulted in the death of another person.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016   Page 14 of 16
[4]   Turning to the duties of a motor vehicle operator under subsection (a), all

      drivers involved in an accident were required to comply with Ind. Code § 9-26-

      1-1.1(a)(1), that is to immediately stop the vehicle or remain at the scene until

      the driver gave his information or license to any others involved in the

      accident.4 In addition to these duties, motor vehicle operators who were

      involved in an accident resulting in the injury or death of another person were

      required to comply with Ind. Code § 9-26-1-1.1(a)(2), which required an

      operator to provide reasonable assistance to injured or entrapped persons as

      directed and to immediately give notice of the accident to law enforcement. See

      Ind. Code § 9-26-1-1.1(a)(2) (eff. Jan. 1, 2015) (“If the accident results in the

      injury or death of another person, the operator shall, in addition to the

      requirements of subdivision (1): . . . .”) (emphasis added).5


[5]   With this framework in mind, it is important to note that the State may

      establish that an operator committed the crime of leaving the scene of an

      accident as a level 5 felony under Ind. Code § 9-26-1-1.1 (eff. Jan. 1, 2015) by

      proving that the operator was involved in an accident, that the accident resulted

      in the death of another person, and that the operator knowingly or intentionally

      failed to comply with any of the operator’s duties described in subsection (a) of




      4
        The current version of the statute, effective July 1, 2015, requires an operator involved in an accident to
      both immediately stop the vehicle and remain at the scene as required. See Ind. Code § 9-26-1-1.1(a)(1)-(2)
      (eff. July 1, 2015).
      5
       These duties are contained in subsection (a)(3) of the current version of the statute. See Ind. Code § 9-26-1-
      1.1(a)(3) (eff. July 1, 2015).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016              Page 15 of 16
      the statute—the duties in subsection (a)(1) or the duties in subsection (a)(2). For

      instance, the State could prove that the operator failed to comply with the

      operator’s duties under subsection (a)(1) related to stopping or remaining at the

      scene.6 Alternatively, the State could prove the operator failed to comply with

      the operator’s duties described in subsection (a)(2) related to providing

      reasonable assistance as directed and notifying law enforcement. 7 This is why,

      in this case, Castillo has suffered no prejudice. While the jury may not have

      been correctly instructed regarding Castillo’s duties under subsection (a)(1), the

      jury nevertheless found, as the majority observes, that Castillo was involved in

      an accident resulting in the death of another person and knowingly or

      intentionally failed to comply with subsection (a)(2) of the statute, and this

      constituted the offense of leaving the scene of an accident as a level 5 felony.


[6]   I concur in the majority’s opinion.




      6
       These duties are found under subsections (a)(1) and (a)(2) of current version of the statute. See Ind. Code §
      9-26-1-1.1(a)(1)-(2) (eff. July 1, 2015).
      7
       These duties are found under subsection (a)(3) of the current version of the statute. See Ind. Code § 9-26-1-
      1.1(a)(3) (eff. July 1, 2015).

      Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016             Page 16 of 16
