Marlen Hernandez v. State of Indiana ( 2013 )

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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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.
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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
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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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