Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
                                                                       FILED
                                                                    Aug 06 2012, 9:01 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                                CLERK
                                                                          of the supreme court,
                                                                          court of appeals and
                                                                                 tax court




ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

MARK K. PHILLIPS                                           GREGORY F. ZOELLER
Law Office of Mark K. Phillips                             Attorney General of Indiana
Boonville, Indiana
                                                           RICHARD C. WEBSTER
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

BRIAN L. MILLARD,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )   No. 87A01-1201-CR-18
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                 APPEAL FROM THE WARRICK SUPERIOR COURT NO. 2
                        The Honorable Robert R. Aylsworth, Judge
                            Cause No. 87D02-1107-CM-626


                                          August 6, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                              STATEMENT OF THE CASE

       Brian L. Millard appeals his conviction for criminal recklessness, as a Class A

misdemeanor, following a bench trial. Millard presents two issues for review, which we

restate as whether the evidence is sufficient to support his conviction.

       We affirm.

                        FACTS AND PROCEDURAL HISTORY

       On the afternoon of June 8, 2011, Anna Millard Lehr was driving on Third Street in

Boonville. Suddenly, a short-bed gray pickup truck traveling on Third Street toward her

crossed into her lane. The truck’s passenger’s side wheels were on the yellow center line,

and the driver’s side wheels were completely in Lehr’s lane. To avoid a collision, Lehr cut

sharply to the right, causing her vehicle to go up on a curb and “barely miss[] the telephone

pole.” Transcript at 4. At that point she was near the Third Street Pantry gas station.

       Lehr exited her car briefly and then called the police. While on the phone, she drove

to the Boonville Police Station near the town square. While driving she observed that the

gray truck had turned around and was following her. But before she reached the square, she

looked in her rearview mirror and the truck was no longer there. At the police station she

made a report of the incident. In the report she identified Millard, her ex-husband, as the

driver of the gray truck. Lehr had obtained a protective order against Millard in September

2010, which was still in effect.

       Lehr then returned to the Pantry, where she saw Kelly Wyrick, who said she had

witnessed the incident. Wyrick also filled out a statement for police, stating that she had seen


                                               2
a gray pickup truck swerve into Lehr’s lane, causing Lehr to drive up onto the curb. And in

the statement prepared by Officer Jerry Abshire of the Boonville Police Department, Officer

Abshire related that Wyrick identified Millard as the driver of the gray truck. On later dates,

Millard texted Lehr about the incident, indicating that he had swerved into her lane only

because he had dropped his cell phone.

       The State charged Millard with criminal recklessness, as a Class A misdemeanor, and

invasion of privacy, as a Class B misdemeanor. Following a bench trial, the court found

Millard guilty on both counts and sentenced him to one year in the Indiana Department of

Correction suspended to one year of non-reporting probation. Millard now appeals his

criminal recklessness conviction.

                              DISCUSSION AND DECISION

       Millard contends that the evidence is insufficient to support his conviction for criminal

recklessness, as a Class A misdemeanor. When reviewing a claim of sufficiency of the

evidence, we do not reweigh the evidence or judge the credibility of the witnesses. Jones v.

State, 783 N.E.2d 1132, 1139 (Ind. 2003). We look only to the probative evidence

supporting the judgment and the reasonable inferences that may be drawn from that evidence

to determine whether a reasonable trier of fact could conclude the defendant was guilty

beyond a reasonable doubt. Id. If there is substantial evidence of probative value to support

the conviction, it will not be set aside. Id.

       To prove the offense, the State was required to show beyond a reasonable doubt that

Millard “recklessly, knowingly, or intentionally perform[ed] an act that create[d] a substantial


                                                3
risk of bodily injury to” Lehr and that the conduct included the use of a vehicle. Ind. Code §

35-42-2-2(b)(1), (c)(1). Millard challenges the sufficiency of evidence regarding his identity

as the driver of the gray truck and regarding his intent to harm Lehr. We consider each

argument in turn.

       The probative evidence supporting the judgment shows that Lehr was driving on Third

Street when a gray pickup truck crossed into her lane, causing her to sharply turn right and

drive up onto the curb. Lehr identified Millard as the driver of the truck. She also testified

that Millard had subsequently texted her, admitting that he had been driving the truck but

claiming that he had dropped his phone. But Wyrick witnessed the event and saw the driver

sitting upright behind the truck’s steering wheel.

       Millard contends that the evidence is insufficient to show that he was the driver of the

pickup truck. In support, he points out that Wyrick gave three different versions of the

incident. But that argument amounts to a request for us to reweigh the evidence, which we

will not do. See Jones, 783 N.E.2d at 1139. Millard also questions the credibility or weight

of other evidence, but he does not address Lehr’s identification of him as the truck’s driver.

The evidence is sufficient to show that Millard was driving the gray pickup when it swerved

into Lehr’s lane.

       Millard also contends that “[t]here was absolutely no evidence that [Millard] had

formed an intent to harm” Lehr. Appellant’s Brief at 7. Millard misconstrues the elements

of criminal recklessness. Indiana Code Section 35-42-2-2 requires the State to show that he

“recklessly, knowingly, or intentionally perform[ed] an act that create[d] a substantial risk of


                                               4
bodily injury to another person[.]” The State can meet that burden by showing reckless or

knowing conduct, not just intentional conduct. Id. Nor must the State show that Millard

intended the harm, only that he created a substantial risk of bodily injury. See id. The

evidence here is sufficient to show that Millard recklessly, knowingly, or intentionally

created a substantial risk of bodily injury when he drove into Lehr’s lane of traffic, causing

her to turn sharply and quickly to the right and drive up onto a curb, nearly hitting a

telephone pole. Millard’s contention that the evidence is insufficient to support his

conviction must fail.

       Affirmed.

RILEY, J., and CRONE, J., concur.




                                              5
