      MEMORANDUM DECISION
                                                                               FILED
      Pursuant to Ind. Appellate Rule 65(D),                               Mar 27 2018, 7:55 am
      this Memorandum Decision shall not be
                                                                               CLERK
      regarded as precedent or cited before any                            Indiana Supreme Court
                                                                              Court of Appeals
      court except for the purpose of establishing                              and Tax Court

      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Anthony C. Lawrence                                      Curtis T. Hill, Jr.
      Anderson, Indiana                                        Attorney General of Indiana
                                                               George P. Sherman
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                IN THE
          COURT OF APPEALS OF INDIANA

      Theressa Jones,                                          March 27, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A02-1703-CR-523
              v.                                               Appeal from the Madison Circuit
                                                               Court
      State of Indiana,                                        The Honorable Mark K. Dudley,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               48C06-1212-FC-2262



      Mathias, Judge.

[1]   Theressa Jones (“Jones”) was convicted in Madison Circuit Court of Class C

      felony reckless homicide. Jones appeals her conviction and argues that the trial


      Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018         Page 1 of 13
      court abused its discretion when it refused to tender her proposed instructions

      to the jury concerning her claim that her actions were negligent, but not

      reckless.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On July 16, 2012, Jones, LaQuinda Maxwell (“Maxwell”), and Maxwell’s

      cousin and sister were traveling in a U-Haul truck with an attached car trailer

      on Broadway Street in Anderson, Indiana. Maxwell was driving the truck, and

      Jones was seated in the passenger seat. The two children were seated on the

      floorboard between Maxwell and Jones.


[4]   As Maxwell drove the U-Haul down Broadway Street, Maxwell and Jones were

      arguing and Maxwell told Jones that they were “done.” Tr. Vol. II, pp. 196–97.

      Jones believed that Maxwell was ending their relationship. Id. Jones was upset,

      threatened to jump out of the vehicle, and opened the passenger door to the U-

      Haul. Maxwell and the children grabbed Jones to prevent her from jumping. As

      Maxwell did so, her foot pressed down on the accelerator, and the U-Haul

      swerved. Maxwell lost control of the U-Haul, and it began to spin. Jones was

      thrown from the vehicle.


[5]   William Richards (“Richards”) was stopped on his motorcycle at the

      intersection of Broadway and Grand. Maxwell was unable to regain control of

      the U-Haul and hit Richards as it spun through the intersection. The impact



      Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 2 of 13
      caused Richards’s death. The U-Haul eventually came to a stop when it hit a

      utility pole.


[6]   Later investigation revealed that Maxwell was travelling approximately sixty-

      two miles per hour, twenty-two miles per hour over the posted speed limit,

      when she lost control of the U-Haul. Maxwell also tested positive for marijuana

      and Klonapin and admitted that she had a shot of Vodka before driving the U-

      Haul. However, officers at the scene stated that Maxwell did not appear to be

      intoxicated. Maxwell eventually pleaded guilty to reckless homicide and

      operating a vehicle causing death with a controlled substance in her blood

      stream.


[7]   On December 5, 2012, the State charged Jones with Class C felony reckless

      homicide. A jury trial was held on November 24, 2014, and Jones was

      convicted as charged. Jones’s conviction was reversed on appeal because the

      trial court erred when it removed a juror after deliberations had begun. See

      Theressa Jones v. State, No. 48A02-1501-CR-56 (Ind. Ct. App. Dec. 10, 2015).


[8]   Jones’s second jury trial commenced on January 10, 2017. Jones argued that

      her acts were negligent but not criminal. She also argued that Maxwell would

      have been able to maintain control of the U-Haul if she had not been speeding.

      In support of her defense, Jones presented testimony from an accident

      reconstructionist who testified that the vehicle’s speed was the primary cause of

      the accident. Tr. Vol. IV, pp. 80–82. The State countered this testimony with

      Jones’s statement to a police officer that the crash would not have occurred if


      Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 3 of 13
       she had not opened the door and tried to jump out of the U-Haul. Ex. Vol.,

       State’s Exs. 55 & 55A.


[9]    Jones requested several jury instructions in support of her claim that her actions

       were not criminally reckless but merely negligent, including the definition of

       negligence, the difference between negligent and criminal behavior, and

       explained a driver’s duty of care. Appellant’s App. pp. 92–102. The trial court

       refused to give Jones’s requested instructions to the jury.


[10]   Jones was found guilty as charged. The trial court ordered Jones to serve the

       same sentence she was ordered to serve after her first trial: five years, with three

       years executed in the Department of Correction and two years suspended to

       probation. Jones now appeals.


                                      Discussion and Decision
[11]   Jones argues that the trial court abused its discretion when it refused to give her

       proposed instructions numbers 1–10. “The purpose of a jury instruction is 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 arrive at a just, fair, and

       correct verdict.” Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015) (internal

       quotation marks omitted).


[12]   The trial court has broad discretion in instructing the jury, and as a result, we

       review the trial court’s decision to give or refuse a party’s tendered instruction

       for an abuse of discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). On

       review, we consider “(1) whether the tendered instruction correctly states the
       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 4 of 13
       law; (2) whether there was evidence presented at trial to support giving the

       instruction; and, (3) whether the substance of the instruction was covered by

       other instructions that were given.” Id. at 1230–31. “[W]e consider the

       instructions as a whole and in reference to each other and do not reverse the

       trial court for an abuse of discretion unless the instructions as a whole mislead

       the jury as to the law in the case.” McCowan v. State, 27 N.E.3d 760, 764 (Ind.

       2015).


[13]   Jones’s proposed instructions defined negligence, compared negligent versus

       reckless acts, defined criminal intent, and explained the duty of a driver to

       exercise due care when operating a vehicle. Appellant’s App. Vol. II, pp. 92–

       102. The State argues that the trial court properly refused to give these

       instructions to the jury because negligence is not a legal defense to the crime of

       reckless homicide.


[14]   The State relies heavily on Springer v. State, 798 N.E.2d 431 (Ind. 2003), in

       support of its argument. In that case, the defendant took a loaded gun to a

       home to confront boys who had beaten his son. The defendant either fired a

       “warning shot” or accidentally discharged the gun, and the bullet travelled

       through a refrigerator and wall before striking a boy who was in the bathroom.

       The defendant was charged and convicted of criminal recklessness.


[15]   The defendant appealed his conviction and argued that the trial court abused its

       discretion when it refused to give his proposed instructions on the definition of

       negligence, the definition of recklessness, and the defense of accident. The


       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 5 of 13
       defendant argued that the trial court’s instruction defining recklessness was an

       incorrect statement of law because the jury was not instructed that the State is

       required to prove recklessness as opposed to mere negligence. Id. at 434. And

       the defendant argued that the tendered jury instructions did not explain the

       difference between recklessness and negligence. Finally, the defendant claimed

       that because the trial court refused to instruct the jury on negligence, the court

       “effectively prohibited the jury from hearing any instruction on any theory of

       his defense.” Id.


[16]   Our court agreed with the defendant, but our supreme court rejected the

       defendant’s arguments stating “[n]egligence, as used by Defendant here, is an

       argument not a legal defense. Defendant’s legal defense was and is that he is not

       guilty of criminal recklessness because his actions did not meet the legal

       requirements of recklessness.” Id. at 435. The court noted that the defendant

       freely argued that “he did no more than fail ‘to exercise reasonable or ordinary

       care.’” Id. Finally, the court observed that “no reasonable interpretation of the

       facts suggests that Defendant’s conduct was merely negligent, that he merely

       failed to exercise reasonable or ordinary care.” Id. (noting that “‘there is no

       definition of reasonable or ordinary care that encompasses the circumstance of

       an uninvited person seeking confrontation in the occupied residence of another

       person, while wielding a loaded, cocked weapon without the safety mechanism

       engaged’”) (quoting Springer, 779 N.E.2d 555, 565 (Ind. Ct. App. 2002), trans.

       granted (Bailey, J., dissenting)).




       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 6 of 13
[17]   The Springer court was unpersuaded by the defendant’s citations to and our

       court’s reliance on Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962) and Sipp v.

       State, 514 N.E.2d 330 (Ind. Ct. App. 1987). In both of those cases, the driver of

       a vehicle was charged with reckless homicide, and the convictions were

       reversed because the defendants’ proposed instructions on negligence were not

       given to the jury. The Springer court stated that “the factual circumstances of

       this case distinguish it from Cichos and Sipp. Both of those cases involved

       conduct that can be undertaken with due care —the conduct of driving a motor

       vehicle.” Id. at 436 (citing Cichos, 243 Ind. at 189–90, 184 N.E.2d at 3; Sipp, 514

       N.E.2d at 330).


[18]   In Cichos, the appellant was charged with reckless homicide and involuntary

       manslaughter following an accident in which his vehicle hit another vehicle

       head-on, resulting in the death of two occupants in the other vehicle. The trial

       court refused to give the appellant’s tendered instructions stating that mere

       negligence could not give rise to criminal liability for the crimes of reckless

       homicide or involuntary manslaughter. Our supreme court determined that

       failure to give the instructions amounted to reversible error and stated:

               Whether the evidence in this case establishes that the deaths
               alleged in the indictment occurred from a mere accident, from
               negligent conduct or from willful and/or wanton misconduct so
               as to amount to recklessness, is dependent on the weight given
               the various aspects of the case and the evidence by the jury. The
               very purpose of the jury is to determine, after deliberation and
               pursuant to the court’s instructions, the legal category into which
               the jury feels the defendant’s conduct falls. The appellant’s theory


       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 7 of 13
               of the evidence and the law establishing such theory was never
               given to the jury in any instructions.


       Cichos, 243 Ind. at 192, 184 N.E.2d at 3.


[19]   In Sipp, the defendant, who was operating his vehicle in excess of fifty miles per

       hour, side-swiped two cars stopped at a traffic light before hitting a third car

       that was also stopped at the traffic light. The driver of the third car died as a

       result of the accident. Sipp claimed that he suffered from epileptic seizures and

       could not remember the accident. He tendered instructions stating that he could

       not be found guilty if he was merely negligent in operating his vehicle or if his

       lack of attention or error in judgment caused the collision. Citing Cichos, our

       court agreed that the instructions should have been given to the jury, and we

       reversed his conviction. Sipp, 514 N.E.2d at 332.


[20]   Although the facts of this case are more closely aligned with those in Sipp and

       Cichos, there are two significant factual differences: Jones was not the driver of

       the vehicle, and she was not involved in conduct that can be undertaken with

       due care. See Springer, 798 N.E.2d at 436. Jones threatened to jump out of the

       U-Haul and opened the passenger side door so that she could do so while the

       U-Haul was being operated on a roadway. Importantly, negligence law

       “presupposes that an individual is engaged in lawful conduct which can be

       undertaken with due care for the safety of another person.” Id. at 435.


[21]   We cannot agree with the dissent that Jones’ actions were reckless “only as to

       her own safety.” Slip op. at 12. It is foreseeable that to jump out of a moving

       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 8 of 13
       vehicle onto the roadway could result in a traffic accident that involves third

       parties. It is not lawful to create such a hazard on the roadway. Jones was not

       entitled to an instruction that presupposes that such an act could be lawful.


[22]   At trial, Jones argued that the State failed to prove that her conduct met the

       legal requirements of recklessness and that Maxwell’s operation of the vehicle,

       i.e. speeding and removing her hands from the steering wheel, was the cause of

       the accident. Therefore, like the defendant in Springer, Jones’s argument was a

       challenge to the sufficiency of the evidence rather than “a legal defense.” See id.


[23]   Moreover, during closing arguments, Jones’s counsel discussed the concept of

       negligence with the jury including that negligent conduct does not give rise to

       criminal liability. Tr. Vol. 4, p. 191. Jones also emphasized her expert’s

       testimony that Maxwell caused the accident because she was speeding, and that

       Maxwell had taken a shot of vodka before she drove the U-Haul and had

       marijuana and Klonapin in her system.


[24]   Importantly, the jury was properly instructed that the State was required to

       prove beyond a reasonable doubt that Jones engaged “in the conduct in plain,

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

       disregard involve[d] a substantial deviation from acceptable standards of

       conduct.” Appellant’s App. p. 105. The jury was also given the following

       instruction titled “Responsible Cause.”


               A person’s conduct is legally responsible for causing death if:

               (1) the death would not have occurred without the conduct, and

       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 9 of 13
               (2) the death was a natural, probable, and foreseeable result of
               the conduct.

               This is called a “responsible cause.”

               There can be more than one responsible cause for a death.

       Id.


[25]   Because she was found guilty of reckless homicide, the jury must have

       concluded that the State proved recklessness beyond reasonable doubt, which

       necessarily negated Jones’s argument that Maxwell was solely responsible for

       the accident and that her own conduct was merely negligent and not a

       responsible cause of the victim’s death.


[26]   For all of these reasons, we conclude that the trial court did not abuse its

       discretion when it refused to give Jones’s proposed instructions concerning

       negligence to the jury.


[27]   Affirmed.


       Najam, J., concurs.


       Barnes, J., dissents with opinion.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 10 of 13
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Theressa Jones,                                          Court of Appeals Case No.
                                                                48A02-1703-CR-523
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Barnes, Judge, dissenting.

[28]   I respectfully dissent. There is a fine line between reckless and negligent

       conduct, and I believe there was a clear question here as to whether Jones was

       reckless or merely negligent with respect to Richards’s death. As such, the jury

       should have been thoroughly and accurately instructed on the difference

       between recklessness and negligence.


[29]   Caselaw is replete with examples of reckless homicide convictions based on

       traffic accidents being reversed because the evidence only supported a finding of

       negligence, not recklessness. See, e.g., DeVaney v. State, 259 Ind. 483, 288

       N.E.2d 732 (1972) (holding evidence was insufficient to support reckless

       homicide conviction where defendant was intoxicated and crossed centerline

       but there was no evidence as to how long he had been in the wrong lane before

       accident); Seibert v. State, 239 Ind. 283, 156 N.E.2d 878 (1959) (reversing


       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 11 of 13
       reckless homicide conviction where defendant attempted to pass a vehicle while

       his vision was obstructed and had head-on collision with oncoming vehicle);

       State v. Boadi, 905 N.E.2d 1069 (Ind. Ct. App. 2009) (holding defendant’s

       failure to stop at red light, resulting in accident and death, did not support

       charge of reckless homicide); Clancy v. State, 829 N.E.2d 203 (Ind. Ct. App.

       2005) (reversing reckless homicide conviction where defendant fell asleep

       behind the wheel), trans. denied; Whitaker v. State, 778 N.E.2d 423 (Ind. Ct. App.

       2002) (reversing reckless homicide conviction where tanker-trailer rear-ended a

       car after speeding slightly), trans. denied. And, as noted by the majority, in at

       least two cases (Cichos and Sipp) courts have reversed reckless homicide

       convictions based on traffic accidents where the trial court failed to give jury

       instructions regarding negligence.


[30]   The majority distinguishes cases like the ones above because they involved

       drivers of vehicles, whereas Jones was only a passenger. I do not believe that

       makes a difference here. I am willing to concede that Jones’s action of opening

       the door of a moving vehicle could be deemed unquestionably “reckless” in a

       sense—but only as to her own safety, or for example a child’s safety if she had

       been holding one or one had been seated nearby. The question here is whether

       she was reckless as to the ultimate result of Richards’s death. In order to

       sustain a reckless homicide conviction, the State was required to prove that

       Jones acted in plain, conscious, and unjustifiable disregard of the harm that

       might result and such conduct was a substantial deviation from acceptable

       standards of conduct. See Champlain v. State, 681 N.E.2d 696, 701 (Ind. 1997)


       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 12 of 13
       (citing Ind. Code § 35-41-2-2(c)). Jones’s conduct here, while plainly dangerous

       to herself, was not so plainly dangerous to third parties. This was entirely

       unlike bringing a loaded firearm into a heated situation, as occurred in Springer.


[31]   “A criminal defendant is entitled to have a jury instruction on ‘any theory or

       defense which has some foundation in the evidence.’” Hernandez v. State, 45

       N.E.3d 373, 376 (Ind. 2015) (quoting Toops v. State, 643 N.E.2d 387, 389 (Ind.

       Ct. App. 1994)). Thus, even if Jones’s claim that she was only negligent did not

       qualify as a “defense” under Springer, it was at least a “theory” that could have

       led to her acquittal. She was entitled to have a jury instruction explaining that

       theory. Nor do I think that allowing her attorney to argue about negligence was

       an adequate substitute for an instruction from the trial court explaining the

       concept to the jury and thus confirming that the argument had legal merit. In

       fact, the jury was instructed, “The Court’s instructions are your best source in

       determining the law.” App. Vol. II p. 104. Hearing this, and not hearing an

       instruction about the definition of negligence and its difference from

       recklessness, the jury might have felt free to disregard counsel’s arguments

       about negligence.

[32]   In sum, I vote to reverse Jones’s conviction and remand for retrial.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018   Page 13 of 13
