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MEMORANDUM DECISION - NOT FOR PUBLICATION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
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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
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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
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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.
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