MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), FILED
this Memorandum Decision shall not be Jul 22 2016, 8:29 am
regarded as precedent or cited before any
CLERK
court except for the purpose of establishing Indiana Supreme Court
Court of Appeals
the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Megan Shipley Gregory F. Zoeller
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Calvin Castillo, July 22, 2016
Appellant-Defendant, Court of Appeals Case No.
49A02-1511-CR-1783
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Amy J. Barbar,
Appellee-Plaintiff Magistrate
Trial Court Cause No.
49G02-1501-F5-581
Baker, Judge.
Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016 Page 1 of 16
[1] Calvin Castillo appeals his convictions for Leaving the Scene of an Accident
Resulting in Death,1 a Level 5 felony, and Operating a Vehicle While
Intoxicated,2 a Class A misdemeanor. Finding no error, we affirm.
Facts
[2] In the early morning hours of January 3, 2015, Castillo decided to leave his
Indianapolis home following an argument with his wife. He took two pills of
the anti-anxiety drug clonazepam and drove to a liquor store, where he bought
a sixteen-ounce beer and drank it in the parking lot. Castillo then tried to get in
touch with a friend, but after failing to do so, he decided to drive back home.
[3] At around 3 a.m., Castillo crashed his car into a telephone pole at the corner of
Washington Street and Colorado Avenue. Judy Ollis heard the crash from
inside her home and ran outside to help. She found Castillo in his car and a
man, later identified as Joseph McKenney, lying face down in her yard.
Castillo was injured, but conscious, and several people were trying to help him
get out of his car.
[4] Ollis retrieved her cell phone from inside her home, called 911, and returned to
Castillo’s car. Ollis asked Castillo if he was okay and told him that the police
were on their way. Castillo told Ollis that he was fine. McKenney, however,
1
Ind. Code § 9-26-1-1.1. This section was substantially amended effective July 1, 2015. Here, we refer to the
statute as it existed on the date that Castillo committed the offense.
2
Ind. Code § 9-30-5-2.
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was unresponsive. Ollis went inside her home to get McKenney a blanket.
When she returned, Castillo was gone, and she could not see him on either
Washington or Colorado. Police and paramedics arrived shortly thereafter and
McKenney was transported to the hospital. He later died as a result of blunt
force trauma injuries.
[5] Officers later found Castillo walking in an alley a few blocks away from the
scene of the crash. Castillo, who appeared intoxicated, told the officers that he
had been in an accident. He was then transported to a hospital, where he tested
positive for alcohol and clonazepam.
[6] On January 6, 2015, the State charged Castillo with level 5 felony leaving the
scene of an accident resulting in death and class A misdemeanor operating a
vehicle while intoxicated. Trial was held on August 27, 2015. At the close of
evidence, Castillo moved for a directed verdict on the operating while
intoxicated charge and the trial court denied the motion. A jury then found
Castillo guilty as charged. The trial court sentenced Castillo to five years, with
three years executed on Community Corrections and two years suspended to
probation, for leaving the scene of an accident resulting in death, and one year
suspended to probation for operating a vehicle while intoxicated. The trial
court ordered the sentences to run consecutively, resulting in a total sentence of
three years in Community Corrections and three years suspended to probation.
Castillo now appeals.
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Discussion and Decision
[7] Castillo makes two arguments on appeal. He first argues that the trial court
committed fundamental error by erroneously instructing the jury on the crime
of leaving the scene of an accident resulting in death, and he asks us to remand
the case for a new trial on this charge. He also argues that the State presented
insufficient evidence from which a reasonable jury could find him guilty of class
A misdemeanor operating a vehicle while intoxicated, and he asks us to vacate
his conviction for this count.
I. Jury Instruction
[8] Castillo first takes issue with an instruction given to the jury. The instruction
defines the crime of leaving the scene of an accident resulting in death and
provides, in part:
The driver of a vehicle who should reasonably have anticipated
that his operation of the vehicle resulted in injury to a person is
under a duty imposed by law to do the following:
Immediately stop the vehicle at the scene of the accident or as
close to the accident as possible in a manner that does not
obstruct traffic more than is necessary; and
Immediately return to and/or remain at the scene of the accident
until the driver . . . gives the driver’s name and address and the
registration number of the vehicle [and] exhibits the driver’s
license . . . [to] any person involved in the accident . . . .
Appellant’s App. p. 62 (emphasis added).
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[9] While this language is a correct statement of the law as it existed on the date of
trial, it is not a correct statement of the law as it existed on the date that Castillo
committed the crime. This is important given the “well established rule of our
criminal jurisprudence that the law which applies is that law in effect at the time
the crime is committed.” Williams v. State, 706 N.E.2d 149, 160 n.7 (Ind. 1999).
While the current version requires a driver to both stop his vehicle and return to,
or remain at, the scene of the accident, the statute that existed on January 3,
2015, seemed to require Castillo to do only one of those things. It provided
that:
The operator of a motor vehicle involved in an accident shall do
the following:
(1) Either:
(A) immediately stop the operator’s motor vehicle . . . or
(B) remain at the scene of the accident until the
operator . . . [g]ives the operator’s name and address
and the registration number of the motor vehicle
[and] [e]xhibits the operator’s driver’s license to any
person involved in the accident . . . .
Ind. Code § 9-26-1-1.1 (2015), amended by P.L. 188-2015, § 99 (emphases
added).
[10] Jury instructions are meant “to inform the jury of the law applicable to the facts
without misleading the jury and to enable it to comprehend the case clearly and
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arrive at a just, fair, and correct verdict.” Isom v. State, 31 N.E.3d 469, 484 (Ind.
2015) (quotations omitted). An instruction is erroneous when, taken as a
whole, it misstates the law or otherwise misleads the jury. Id. at 484-85.
Because Castillo failed to object to this instruction, we will only reverse if we
are persuaded that the error here was fundamental—meaning that the
erroneous instruction was so prejudicial as to make a fair trial impossible.
Rosales v. State, 23 N.E.3d 8, 11 (Ind. 2015).
[11] Castillo argues that this error was indeed fundamental, in that it allowed the
jury to convict him of something that was not illegal at the time he did it. He
maintains that, under this instruction, the jury could have found him guilty of
leaving the scene of an accident resulting in death if it found that he did not
stop his vehicle and remain at, or return to, the scene. Failing to do both of
these things was not a crime on January 3, 2015, as the law in effect on that
date only required Castillo to do one of these things. Appellant’s Br. p. 15.
[12] However, while the portion of the instruction relied on by Castillo was
erroneous, we note that we must take the instruction as a whole when
considering its likely effect on a jury. Isom, 31 N.E.3d at 484. Here, Castillo
has been convicted of leaving the scene of an accident resulting in death.
Following an accident resulting in death, in addition to stopping one’s vehicle
and remaining at the scene, the current statute provides:
If the accident results in the injury or death of another person, the
operator shall . . .
Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016 Page 6 of 16
(A) provide reasonable assistance to each person injured in or
entrapped by the accident, as directed by a law
enforcement officer, medical personnel, or a 911 telephone
operator; and
(B) as soon as possible after the accident, immediately give
notice of the accident . . . [to] [t]he local police
department, . . . [t]he office of the county sheriff or the
nearest state police post, . . . [or] [a] 911 telephone
operator.
I.C. § 9-26-1-1.1. Unlike the language that Castillo complains of, this language
appeared in the statute in substantially the same form as it existed on the date of
the accident. I.C. § 9-26-1-1.1 (2015).
[13] Thus, because Castillo was in an accident involving the death of an individual,
he was required to contact law enforcement, inform them of the accident, and
provide the victim with reasonable assistance if instructed to do so. Were the
jury to find that he failed to do this, he would be guilty of the crime of leaving
the scene of an accident resulting in death as that crime was defined on January
3, 2015. Id.
[14] A review of the whole jury instruction reveals that the jury was required to find
that Castillo failed to contact law enforcement and, as a result, failed to provide
McKenney with any assistance that may have been requested. The instruction,
in pertinent part, provides:
Before you may convict the defendant, the State must have
proved each of the following beyond a reasonable doubt:
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***
The defendant knowingly did not immediately return to and/or
remain at the scene of the accident . . . [and] did not determine
the need for and did not render reasonable assistance to the
person injured or entrapped in the accident as directed by law
enforcement officer, medical personnel, or 911 telephone
operator and, did not as soon as possible after the accident,
immediately give notice of the accident, or ensure that another
person gives notice of the accident by the quickest means of
communication to the local police department, the county sheriff
or nearest police post, or a 911 telephone operator . . . .
Appellant’s App. p. 63-64.
[15] According to this instruction, before it could find Castillo guilty, the jury was
required to find that he failed to report the accident to law enforcement and,
therefore, failed to render any assistance that he may have been asked to give.
The jury could not, as Castillo asserts, have found him guilty simply because he
failed to stop and remain at the scene, which was not a crime on the date that he
committed the act. Rather, the instruction required the jury to find that Castillo
committed an act that would have been sufficient to constitute the crime of
leaving the scene of an accident resulting in death as that crime existed on
January 3, 2015. I.C. § 9-26-1-1.1 (2015). Accordingly, we find that he has
suffered no prejudice.
II. Sufficiency of the Evidence
[16] Castillo next argues that the State presented insufficient evidence to support his
conviction for class A misdemeanor operating a vehicle while intoxicated.
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When an appellant challenges the sufficiency of the evidence in support of a
conviction, this Court considers only the probative evidence and the reasonable
inferences that support the conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind.
2011). We will affirm the conviction unless no reasonable jury could have
found the elements of the crime beyond a reasonable doubt. Id.
[17] The class A misdemeanor version of the charge is an enhanced version that
requires the State to prove, in addition to intoxication, that Castillo “operate[d]
a vehicle in a manner that endanger[ed] a person.” I.C. § 9-30-5-2(b). Castillo
argues that the State presented no evidence as to the manner in which he
operated his vehicle, and he believes that his conviction should be reduced to
the class C misdemeanor version of the offense. He notes that no one witnessed
the accident and there was no evidence that he was speeding, driving without
his headlights on, driving in the wrong lane, or otherwise driving erratically.
Appellant’s Br. p. 24-25. He also points out the crash investigator could not
determine who was at fault for the accident. Id. at 24. Accordingly, he argues
that the accident could have been caused by McKenney suddenly stepping out
into the street and that “there was no evidence to show that one scenario was
more likely than the other.” Id. at 25.
[18] Castillo relies on two previous decisions of this Court where we found the
evidence insufficient to support a conviction for the class A misdemeanor
version of this offense. In Outlaw v. State, we held that the State could not rely
solely on evidence that a defendant was intoxicated to prove that he must have
been driving in a dangerous manner. 918 N.E.2d 379, 381 (Ind. Ct. App.
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2009). We noted that, because the element of endangerment enhances the
underlying offense of operating a vehicle while intoxicated, “[b]y definition, the
. . . statute requires more than intoxication to prove endangerment.” Id. at 382.
Accordingly, we found the evidence insufficient to support a conviction for the
class A misdemeanor offense where the State’s only evidence in support of
endangerment was the fact that the defendant was intoxicated. Id. at 381.
Similarly, in Dorsett v. State, we found evidence that an officer found the
defendant intoxicated inside a parked car was insufficient to prove that the
defendant had driven in a manner that endangered a person. 921 N.E.2d 529,
533 (Ind. Ct. App. 2010).
[19] These cases differ from Castillo’s in that, here, there was an accident. Castillo’s
car was found crashed into a telephone pole and McKenney was found nearby
in a yard. From this evidence, the jury could infer that Castillo lost control of
his vehicle and crashed into McKenney before hitting the telephone pole. This
would certainly constitute operating a vehicle in a manner that endangers
another. Although Castillo hypothesizes that McKenney may have walked into
the street in a manner that failed to allow Castillo enough time to stop, our
Supreme Court has instructed us that, “in reviewing the sufficiency of the
evidence supporting a conviction[,] it is not necessary for that evidence to
overcome every conceivable hypothesis of innocence.” Lock v. State, 971
N.E.2d 71, 78 (Ind. 2012). Accordingly, the jury could reasonably conclude
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that, because most people in McKenney’s position would not choose to
suddenly jump into the street, it is highly unlikely that that’s what he did.3
[20] The judgment of the trial court is affirmed.
May, J., concurs.
Brown, J., concurs with a separate opinion.
3
As an aside, we note that other provisions of our criminal code allow the State to punish those who drive
while intoxicated and kill another without requiring proof that the individual drove in a dangerous manner.
Indiana Code section 9-30-5-5 provides that “[a] person who causes the death of another person when
operating a vehicle . . . while intoxicated[,] commits a Level 5 felony.” Convictions for this offense and
leaving the scene of an accident resulting in death, even if they arise from an incident in which only one
individual was killed, would not violate the prohibition on double jeopardy. McElroy v. State, 864 N.E.2d 392
(Ind. Ct. App. 2007).
Court of Appeals of Indiana | Memorandum Decision 49A02-1511-CR-1783 | July 22, 2016 Page 11 of 16
IN THE
COURT OF APPEALS OF INDIANA
Calvin Castillo, Court of Appeals Case No.
49A02-1511-CR-1783
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Brown, Judge, concurring.
[1] I concur but write separately to clarify the statute defining the crime of leaving
the scene of an accident resulting in death as it existed at the time of the
incident. While the majority discusses portions of the statute in its analysis, I
find it helpful to consider the statute as a whole and analyze how its subsections
work together. At the time of the accident, Ind. Code § 9-26-1-1.1 provided:
(a) The operator of a motor vehicle involved in an accident
shall do the following:
(1) Either:
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(A) immediately stop the operator’s motor
vehicle:
(i) at the scene of the accident; or
(ii) as close to the accident as possible in a
manner that does not obstruct traffic
more than is necessary; or
(B) remain at the scene of the accident until the
operator does the following:
(i) Gives the operator’s name and address
and the registration number of the
motor vehicle the operator was driving
to any person involved in the accident.
(ii) Exhibits the operator’s driver’s license
to any person involved in the accident
or occupant of or any person attending
to any vehicle involved in the accident.
(2) If the accident results in the injury or death of
another person, the operator shall, in addition to the
requirements of subdivision (1):
(A) provide reasonable assistance to each person
injured in or entrapped by the accident, as
directed by a law enforcement officer,
medical personnel, or a 911 telephone
operator; and
(B) immediately give notice of the accident by the
quickest means of communication to one (1)
of the following:
(i) The local police department, if the
accident occurs within a municipality.
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(ii) The office of the county sheriff or the
nearest state police post, if the accident
occurs outside a municipality.
*****
(b) An operator of a motor vehicle who knowingly or
intentionally fails to comply with subsection (a) commits
leaving the scene of an accident, a Class B misdemeanor.
However, the offense is:
*****
(3) a Level 5 felony if the accident results in the death
of another person . . . .
Ind. Code § 9-26-1-1.1 (eff. Jan. 1, 2015) (subsequently amended by Pub. L. No.
188-2015, § 99 (eff. July 1, 2015)).
[2] It is clear this section of the statute was divided into two subsections —
subsection (a) set forth the duties of a motor vehicle operator involved in an
accident and subsection (b) defined the crime of leaving the scene of an
accident.
[3] In defining the crime, subsection (b) referenced the duties of an operator under
subsection (a) and provided that an operator who knowingly or intentionally
failed to comply with those duties committed the crime. Subsection (b) also
elevated the offense if the accident resulted in bodily injury, serious bodily
injury, or death, and subsection (b)(3) provided the offense was a level 5 felony
if the accident resulted in the death of another person.
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[4] Turning to the duties of a motor vehicle operator under subsection (a), all
drivers involved in an accident were required to comply with Ind. Code § 9-26-
1-1.1(a)(1), that is to immediately stop the vehicle or remain at the scene until
the driver gave his information or license to any others involved in the
accident.4 In addition to these duties, motor vehicle operators who were
involved in an accident resulting in the injury or death of another person were
required to comply with Ind. Code § 9-26-1-1.1(a)(2), which required an
operator to provide reasonable assistance to injured or entrapped persons as
directed and to immediately give notice of the accident to law enforcement. See
Ind. Code § 9-26-1-1.1(a)(2) (eff. Jan. 1, 2015) (“If the accident results in the
injury or death of another person, the operator shall, in addition to the
requirements of subdivision (1): . . . .”) (emphasis added).5
[5] With this framework in mind, it is important to note that the State may
establish that an operator committed the crime of leaving the scene of an
accident as a level 5 felony under Ind. Code § 9-26-1-1.1 (eff. Jan. 1, 2015) by
proving that the operator was involved in an accident, that the accident resulted
in the death of another person, and that the operator knowingly or intentionally
failed to comply with any of the operator’s duties described in subsection (a) of
4
The current version of the statute, effective July 1, 2015, requires an operator involved in an accident to
both immediately stop the vehicle and remain at the scene as required. See Ind. Code § 9-26-1-1.1(a)(1)-(2)
(eff. July 1, 2015).
5
These duties are contained in subsection (a)(3) of the current version of the statute. See Ind. Code § 9-26-1-
1.1(a)(3) (eff. July 1, 2015).
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the statute—the duties in subsection (a)(1) or the duties in subsection (a)(2). For
instance, the State could prove that the operator failed to comply with the
operator’s duties under subsection (a)(1) related to stopping or remaining at the
scene.6 Alternatively, the State could prove the operator failed to comply with
the operator’s duties described in subsection (a)(2) related to providing
reasonable assistance as directed and notifying law enforcement. 7 This is why,
in this case, Castillo has suffered no prejudice. While the jury may not have
been correctly instructed regarding Castillo’s duties under subsection (a)(1), the
jury nevertheless found, as the majority observes, that Castillo was involved in
an accident resulting in the death of another person and knowingly or
intentionally failed to comply with subsection (a)(2) of the statute, and this
constituted the offense of leaving the scene of an accident as a level 5 felony.
[6] I concur in the majority’s opinion.
6
These duties are found under subsections (a)(1) and (a)(2) of current version of the statute. See Ind. Code §
9-26-1-1.1(a)(1)-(2) (eff. July 1, 2015).
7
These duties are found under subsection (a)(3) of the current version of the statute. See Ind. Code § 9-26-1-
1.1(a)(3) (eff. July 1, 2015).
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