MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                         Aug 27 2015, 8:53 am
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Suzy St. John                                            Gregory F. Zoeller
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Eric Dillon,                                             August 27, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1412-CR-596
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Stanley Kroh,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G16-1409-CM-42762



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015   Page 1 of 5
[1]   Eric Dillon (“Dillon”), appeals his conviction, after a bench trial, for Class B

      misdemeanor criminal recklessness.1 On appeal, he argues that the evidence is

      insufficient to support his conviction because the State did not prove he

      committed an act that created a substantial risk of injury to the victim.

      Concluding that sufficient evidence supports the trial court’s verdict, we affirm

      Dillon’s conviction.


[2]   Affirmed.


                                                     Issue
[3]              Whether sufficient evidence supports Dillon’s conviction.


                                                     Facts
[4]   Dillon and Rachel Riley (“Riley”) dated from December 2013 to June of 2014.

      The two maintained contact after ending their relationship, and on August 13,

      2014, Riley picked up Dillon from a family center on Illinois Street in Marion

      County. While Riley was driving, the two began arguing. Dillon then called

      an ex-girlfriend on his cellular phone. In response, Riley snatched away the

      headphones Dillon used with the phone and threw them out of the window.

      Dillon responded by taking Riley’s cell phone and throwing it out of the

      window.




      1
          IND. CODE § 35-42-2-2(a).



      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015   Page 2 of 5
[5]   Riley continued driving and arrived at the area of 16th and Rural Street. She

      and Dillon were still arguing when Dillon grabbed the steering wheel, jerked it,

      and caused the vehicle to swerve in and out of its lane of travel. At trial, Riley

      testified that Dillon caused the vehicle to swerve in this manner at least three

      times before she was able to stop the car at 10th and Rural Street. When Dillon

      exited the vehicle, he struck Riley on the side of her head, causing pain.


[6]   On September 16, 2014, the State charged Dillon with Class A misdemeanor

      battery2 and Class B misdemeanor criminal recklessness. A bench trial was held

      on November 25, 2014, and the trial court found Dillon guilty as charged. The

      trial court sentenced him to three hundred sixty-five (365) days in Community

      Corrections on the battery conviction and a concurrent sentence of one hundred

      eighty (180) days on the criminal recklessness conviction. Dillon now appeals

      his conviction for criminal recklessness.


                                                Discussion
[7]   Dillon appeals his conviction for Class B misdemeanor criminal recklessness.

                  When reviewing the sufficiency of the evidence to support a
                  conviction, appellate courts must consider only the probative
                  evidence and reasonable inferences supporting the verdict. It is
                  the fact-finder’s role, not that of appellate courts, to assess
                  witness credibility and weigh the evidence to determine whether
                  it is sufficient to support a conviction. To preserve this structure,
                  when appellate courts are confronted with conflicting evidence,



      2
          I.C. § 35-42-2-1(b).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015   Page 3 of 5
              they must consider it most favorably to the trial court’s ruling.
              Appellate courts affirm the conviction unless no reasonable fact-
              finder could find the elements of the crime proven beyond a
              reasonable doubt. It is therefore not necessary that the evidence
              overcome every reasonable hypothesis of innocence. The
              evidence is sufficient if an inference may reasonably be drawn
              from it to support the verdict.


      Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (internal quotation marks

      and citations omitted) (emphasis in original).


[8]   In order to convict Dillon of criminal recklessness as charged, the State had to

      prove that he recklessly, knowingly, or intentionally performed an act that

      created a substantial risk of bodily injury to Riley. I.C. § 35-42-2-2(a); (App.

      16). A person engages in conduct “recklessly” if he engages in the conduct in

      plain, conscious, and unjustifiable disregard of harm that might result and the

      disregard involves a substantial deviation from acceptable standards of conduct.

      I.C. § 35-41-2-2(c).


[9]   Dillon argues that insufficient evidence supports his conviction because the

      State failed to present evidence that his act created a substantial risk of injury.

      He relies on our opinion in Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind. Ct.

      App. 1995), reh’g denied. There, the defendant went to a vacant lot and fired

      two or three shots from his .22 caliber rifle at some geese. Id. at 1176. The

      defendant fired the shots in the direction of Shelbyville Road, which bordered

      the vacant lot. Id. We concluded that the possibility of a motorist passing by

      on Shelbyville Road at the time the defendant fired his gun presented “only a


      Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015   Page 4 of 5
       remote risk of bodily injury.” Id. at 1177. Because the record contained no

       evidence that anyone was in or near the defendant’s line of fire, we held that the

       State had failed to prove the actual existence of substantial risk of bodily injury

       to another person. Id.


[10]   Dillon contends, similar to the argument in Boushehry, that because the State

       presented no evidence of other vehicles or pedestrians in the road, or that a

       collision almost occurred, we should reverse his conviction. We disagree. The

       evidence most favorable to the judgment shows that Dillon repeatedly jerked

       the wheel of Riley’s vehicle while she was driving, causing the vehicle to leave

       its lane of travel at least three times. This behavior is certainly a substantial

       deviation from acceptable standards of conduct, and the trial court could

       reasonably infer that Dillon’s actions created a substantial risk of Riley losing

       control of the vehicle, crashing, and suffering bodily injury. The fact that no

       pedestrians or other vehicles were present did not lessen the risk of Riley losing

       control of her vehicle. Accordingly, sufficient evidence supports Dillon’s

       conviction.


       Affirmed.


       Vaidik, C.J., and Robb, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1412-CR-596| August 27, 2015   Page 5 of 5
