                                                                        Oct 03 2013, 5:47 am
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
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:

JEFFREY G. RAFF                                     GREGORY F. ZOELLER
Deputy Public Defender                              Attorney General of Indiana
Fort Wayne, Indiana
                                                    AARON J. SPOLARICH
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

MARLEN HERNANDEZ,                                   )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 02A05-1304-CR-181
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE ALLEN SUPERIOR COURT
                           The Honorable Frances C. Gull, Judge
                             Cause No. 02D05-1205-FD-725



                                         October 3, 2013


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       On May 15, 2012, Ashley Polanco and her boyfriend, Alberto Hernandez, went out to

dinner at a restaurant to celebrate Ashley’s birthday. As they left the restaurant, Ashley and

Alberto saw Alberto’s ex-wife, Appellant-Defendant Marlen Hernandez, driving through the

parking lot in a yellow sports utility vehicle (“SUV”). Hernandez, who was driving at a

relatively high rate of speed, drove the vehicle straight towards Ashley. Ashley was forced to

jump out of the path of Hernandez’s SUV to avoid being struck by the SUV.         Hernandez

was charged with and convicted of Class D felony criminal recklessness. She was sentenced

to an executed one-and-one-half-year term of imprisonment. On appeal, Hernandez contends

that the evidence is insufficient to sustain her conviction for Class D felony criminal

recklessness. We affirm.

                       FACTS AND PROCEDURAL HISTORY

       On May 15, 2012, Ashley and Alberto went to dinner at a restaurant in Fort Wayne to

celebrate Ashley’s birthday. As Ashley and Alberto were leaving the restaurant, they saw

Alberto’s ex-wife, Hernandez, driving through the parking lot in a yellow SUV. Upon

spotting Ashley, Hernandez drove the SUV “straight towards” Ashley. Tr. p. 33. An

unknown bystander warned Ashley to “look out.” Tr. p. 33. Paul Moloney and his wife,

Amy, were in the parking lot and saw Hernandez drive the SUV towards Ashley. Paul

witnessed the SUV swerve and turn in Ashley’s direction.

       Ashley had to jump out of the path of Hernandez’s SUV to avoid being stuck by the

SUV. Hernandez’s SUV subsequently struck a vehicle that was parked in the parking lot.

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Ashley and Paul estimated that Hernandez’s vehicle was traveling at a rate of speed between

twenty-five and fifty miles per hour while Hernandez was driving towards Ashley.

       On May 24, 2012, the State charged Hernandez with one count of Class D felony

criminal recklessness and one count of Class D felony neglect of a dependent.1 Following a

jury trial, the jury found Hernandez guilty of Class D felony criminal recklessness and not

guilty of Class D felony neglect of a dependent. The trial court conducted a sentencing

hearing on March 1, 2013, at the conclusion of which the trial court sentenced Hernandez to

one-and-one-half-year term of imprisonment. This belated appeal follows.

                               DISCUSSION AND DECISION

       Hernandez contends that the evidence is insufficient to sustain her conviction for

Class D felony 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, 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) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on


       1
         The State alleged that Hernandez committed Class D felony neglect of a dependent because she
endangered the lives of her children, who were in the SUV at the time of the incident involving Ashley.
                                                  3
reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012). Upon review, appellate courts do not reweigh the evidence or

assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002).

       Indiana Code section 35-42-2-2(b) provides that a “person who recklessly, knowingly,

or intentionally performs: (1) an act that creates a substantial risk of bodily injury to another

person … commits criminal recklessness.” The offense is a Class D felony if it is committed

while armed with a deadly weapon. Ind. Code § 35-42-2-2(c)(2). In challenging the

sufficiency of the evidence to sustain her conviction for Class D felony criminal recklessness,

Hernandez concedes that her SUV qualified as a deadly weapon, and that the evidence is

sufficient to prove that she recklessly, knowingly, or intentionally performed an act while

armed with a deadly weapon. Hernandez argues, however, that the evidence is insufficient to

prove that her actions created a substantial risk of bodily injury to another.

       Upon review, we conclude that the evidence most favorable to the jury’s verdict

demonstrates that Hernandez’s actions did create a substantial risk of bodily injury to

another. “A ‘substantial risk’ is one that has ‘substance or actual existence.’” Woods v.

State, 768 N.E.2d 1024, 1027 (Ind. Ct. App. 2002) (quoting Boushehry v. State, 648 N.E.2d

1174, 1177 (Ind. Ct. App. 1995)). We have previously held that evidence that a defendant

drove his vehicle on a sidewalk in a manner that required a bystander to jump from the

vehicle’s path to avoid being struck by the vehicle was sufficient to prove that the defendant

created a substantial risk of bodily injury to another person. See Beach v. State, 512 N.E.2d

440, 445 (Ind. Ct. App. 1987). We have also held that a jury could reasonably conclude that

                                               4
a defendant’s act of driving his vehicle through a gate while others were nearby in an attempt

to flee created a substantial risk of bodily injury to the nearby individuals. See DeWhitt v.

State, 829 N.E.2d 1055, 1062 (Ind. Ct. App. 2005).

       Here, the evidence most favorable to the jury’s verdict demonstrates that Hernandez

drove her SUV toward Ashley before wrecking the SUV into a parked vehicle. One witness

testified that he saw the SUV swerve toward Ashley. Witnesses estimated that Hernandez’s

vehicle was traveling through the parking lot at a rate of speed between twenty-five and fifty

miles per hour. An unknown bystander yelled for Ashley to “look out,” and Ashley was

forced to jump out of the way of Hernandez’s SUV to avoid being struck by the SUV.

       Hernandez argues that because Ashley was able to jump from the path of the SUV

before being struck, Hernandez’s actions did not create a substantial risk of bodily injury to

Ashley. We disagree and conclude that in light of our previous decisions in Beach and

DeWhitt, the jury could reasonably conclude from the evidence presented at trial that

Hernandez’s actions created a substantial risk of bodily injury to Ashley. Hernandez’s claim

on appeal effectively amounts to an invitation to reweigh the evidence, which we will not do.

Stewart, 768 N.E.2d 433 at 435.

       The judgment of the trial court is affirmed.

BAILEY, J., and MAY, J., concur.




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