                                                                             FILED
                                                                         Oct 31 2019, 7:06 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
R. Thomas Lowe                                             Curtis T. Hill, Jr.
Lowe Law Office                                            Attorney General
New Albany, Indiana
                                                           Megan M. Smith
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana


                                            IN THE
    COURT OF APPEALS OF INDIANA

Leslie Michelle New,                                       October 31, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           19A-CR-575
        v.                                                 Appeal from the Orange Circuit
                                                           Court
State of Indiana,                                          The Honorable Steven L. Owen,
Appellee-Plaintiff                                         Judge
                                                           Trial Court Cause No.
                                                           59C01-1509-F5-854



Crone, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019                              Page 1 of 13
                                               Case Summary
[1]   Leslie Michelle New appeals her convictions, following a jury trial, for level 5

      felony criminal recklessness and class B misdemeanor resisting law

      enforcement. She asserts that the trial court abused its discretion in refusing to

      give one of her tendered jury instructions, and that her substantial rights were

      prejudiced as a result. She also asserts that the State presented insufficient

      evidence to support her convictions. We agree with New that the trial court

      abused its discretion in instructing the jury and that her substantial rights were

      prejudiced as to her criminal recklessness conviction. Accordingly, we reverse

      that conviction and remand for a new trial. We find that the State presented

      sufficient evidence to support New’s conviction for resisting law enforcement,

      so we affirm that conviction.


                                  Facts and Procedural History
[2]   In the summer of 2015, New’s five-year-old autistic daughter, M.N., began

      residing on a permanent basis with New’s aunt and uncle, Barbara and Joe

      New, in their double-wide mobile home located on sixty-one acres of property

      in Paoli. Barbara and Joe had been close with M.N. since her birth and were

      willing to help New because she “was having a tough time.” Tr. Vol. 3 at 86.

      New granted Barbara and Joe a power of attorney so that they could make

      decisions on M.N.’s behalf. During that summer, New did not visit her

      daughter much. When it was time to enroll M.N. in kindergarten that fall,

      New entered into a third-party custody agreement with Barbara and Joe so that

      they could enroll M.N. in school.

      Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019       Page 2 of 13
[3]   On Monday, September 14, 2015, New showed up unannounced to Barbara

      and Joe’s house around 3:15 p.m. After New visited with M.N. for

      approximately one hour, Barbara informed New that M.N. was scheduled for

      her first gymnastics class at 5:00 p.m. Barbara had signed up for the gymnastics

      class to help M.N. socialize. The women began arguing after Barbara refused

      to tell New the location of the class because Barbara did not want New to come

      to the class and “cause problems.” Id. at 103. New grabbed M.N.’s hand, led

      her to her vehicle, and placed the child in the front passenger seat. Barbara

      followed, asking New what she was doing, and telling her that M.N. had school

      the next morning. Barbara attempted to unbuckle the seatbelt and remove

      M.N. from the vehicle. Barbara was unable to get M.N. unbuckled and out of

      the vehicle, so she told New that she was going to call the police. Barbara

      closed the passenger door of the vehicle and walked around the back of the

      vehicle while dialing 911. Barbara stood behind the vehicle as Joe came outside

      and walked to the driver’s-side door, trying to block New from entering the

      vehicle. Joe grabbed New’s car keys out of her hand and yelled to Barbara that

      he had the keys. Still standing directly behind the vehicle, Barbara yelled back

      that New had another set of keys and that she could see that New was looking

      through her purse for the extra set.


[4]   New located her extra set of keys, got in the vehicle, locked the door, and

      started the engine. New put the vehicle in reverse and backed up, bumping into

      Barbara and knocking her to the ground. Barbara screamed, and New then

      pulled the vehicle forward, “circled through the yard[,]” and drove away. Id. at


      Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019      Page 3 of 13
      110. Barbara, who was still on the phone, told the 911 dispatcher that New had

      struck her with a vehicle and driven away.


[5]   Orange County Sheriff’s Department officers responded to Barbara’s call that

      “started out as a domestic issue over a child … and then at some point …

      changed and … became a hit and run.” Id. at 240. As Chief Deputy Dennis

      Lanham was traveling to the scene, he observed a vehicle matching the

      description of New’s vehicle driving in the opposite direction. Deputy Lanham

      initiated a traffic stop. When Deputy Lanham approached the vehicle, he

      noticed that New was driving the vehicle and that M.N. was in the front

      passenger seat. Deputy Lanham thought New behaved oddly because she

      “kind of just stared” at him and then asked him for his police credentials even

      though he had identified himself, was in full uniform, and was driving a marked

      police vehicle. Id. at 244. Deputy Lanham asked New several times to exit the

      vehicle so that he could speak to her about the incident with Barbara, but New

      just continued to stare at him. Deputy Lanham informed New that he was

      going to have to remove her from the vehicle. Once Deputy Lanham opened

      the driver’s-side door, New finally complied and stepped out of the vehicle.


[6]   Deputy Lanham walked with New to the rear of her vehicle. New began

      stating that she could “fix this” and wanted to “go back” to Barbara and Joe’s

      house to “straighten this out.” Id. at 248-49. New then turned around and

      started walking back toward the driver’s door. Deputy Lanham “got her by the

      arm, turned her back around and … started back around the vehicle again.” Id.

      at 249. New pulled away from Deputy Lanham and tried to walk back toward

      Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019     Page 4 of 13
      the driver’s door again. This “occurred three times” before Deputy Lanham

      “finally grabbed [New] by both shoulders, held her firmly against the vehicle

      and said, [‘]look, this has got to stop. … I can’t have you going back to the

      car.[’]” Id. at 249. New seemed to understand and “be okay[,]” but as soon as

      Deputy Lanham relaxed his grip, “she attempted to go get in the car” a fourth

      time. Id. at 250. Deputy Lanham decided “there was no more talking to her

      and convincing her to comply,” so he turned New around to put her in

      handcuffs. Id. New, who was “fairly strong[] for a small woman[,]” resisted

      and struggled with Deputy Lanham as he attempted to place the handcuffs on

      her. Id. Another officer who had arrived at the scene had to help Deputy

      Lanham secure New. Deputy Lanham arrested New for resisting law

      enforcement, and she was transported to jail.


[7]   The State subsequently charged New with level 5 felony battery by means of a

      deadly weapon, class B misdemeanor criminal recklessness, and class A

      misdemeanor resisting law enforcement. Following a three-day trial, the jury

      found New guilty of criminal recklessness and resisting law enforcement, but

      not guilty of battery by means of a deadly weapon. The trial court imposed

      consecutive sentences of 180 days, with eighty-two days executed and ninety-

      eight days suspended, with credit for eighty-two days previously served, on the

      criminal recklessness count, and 365 days, fully suspended, on the resisting law

      enforcement count. This appeal ensued.




      Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019      Page 5 of 13
                                      Discussion and Decision

       Section 1 – The trial court abused its discretion in refusing to
        give New’s tendered jury instruction regarding negligence.
[8]   Because we find it dispositive to our resolution of New’s appeal as it pertains to

      her criminal recklessness conviction, we first address her challenge to the trial

      court’s instruction of the jury. Specifically, New asserts that the trial court

      abused its discretion in refusing to give her proposed instruction regarding the

      definition of negligence as it related to the criminal recklessness charge. 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

      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 (citation omitted). However,

      even if the refusal to give a tendered jury instruction was error, this Court must

      assess whether the defendant was prejudiced by the trial court’s failure to give

      the instruction. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).


[9]   To convict New of class B misdemeanor criminal recklessness, the State was

      required to prove beyond a reasonable doubt that New recklessly, knowingly, or

      intentionally performed an act that created a substantial risk of bodily injury to

      another person. See Ind. Code § 35-42-2-2(a). The State’s theory here was that

      New behaved recklessly when she backed her vehicle into Barbara. “A person

      Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019        Page 6 of 13
       engages in conduct ‘recklessly’ if [s]he engages in the conduct in plain,

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

       disregard involves a substantial deviation from acceptable standards of

       conduct.” Ind. Code § 35-41-2-2(c).


[10]   Regarding final jury instructions, New requested that, in addition to being

       instructed on the definitions of recklessly, knowingly, and intentionally, the jury

       be given an instruction defining negligence and distinguishing between

       negligence and recklessness. Specifically, New’s counsel proposed that the jury

       be given an instruction that:


               in addition to defining recklessly it says uh, this requires the State
               to prove more than mere negligence on the part of the defendant
               because a person may be negligent but not, but may not have
               acted recklessly. Negligence is the failure to do what a reasonably
               careful and prudent person would do under the same or similar
               [c]ircumstances or the doing of something that a reasonably
               careful and prudent person would not do under the same or
               similar [c]ircumstances. In other words negligence is the failure
               to exercise reasonable or ordinary care. If you find that the
               defendant only acted negligently but not recklessly you must find
               the defendant not guilty.


       Tr. Vol. 4 at 65. The trial court denied counsel’s request, concluding that the

       pattern jury instructions on the three applicable levels of culpability for criminal

       recklessness were sufficient. The court determined that adding an instruction

       regarding negligence could confuse the jury because “I don’t want the jury

       thinking that there’s a negligence culpability that’s available … either [the State]

       met [its] burden [on one of the three applicable levels] or [it] didn’t.” Id. at 66.

       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019          Page 7 of 13
[11]   In support of her argument that the trial court’s decision constituted an abuse of

       discretion as well as reversible error, New directs our attention to the fact that

       in at least two instances, Indiana appellate courts have reversed reckless

       homicide convictions based on incidents involving the operation of a motor

       vehicle where the trial court failed to give the defendant’s proposed jury

       instructions regarding negligence. Cichos v. State, 243 Ind. 187, 184 N.E.2d 1

       (1962); Sipp v. State, 514 N.E.2d 330 (Ind. Ct. App. 1987).1 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 the 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
               of the evidence and the law establishing such theory was never
               given to the jury in any instructions.



       1
         We note that although these cases involved convictions for reckless homicide rather than criminal
       recklessness, the “reckless” mens rea is the same.

       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019                              Page 8 of 13
       Cichos, 243 Ind. at 192, 184 N.E.2d at 3.


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

       hour, sideswiped 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. The defendant 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, the

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

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


[13]   More recently, in Springer v. State, 798 N.E.2d 431 (Ind. 2003), our supreme

       court noted that, as a general matter, negligence is an argument and not a legal

       defense to criminal recklessness. Id. at 435. In other words, a defendant’s

       “negligence argument is simply a statement that [the] State failed to prove that

       he was reckless,” and so long as the jury is properly instructed on the definition

       of the reckless mens rea, no additional instruction is required. Id. However,

       the court approved of the rationale in Cichos and Sipp and acknowledged that

       such additional instruction regarding negligence may very well be required in

       cases where there is a legal question of negligence at stake, such as in those

       cases involving “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).



       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019         Page 9 of 13
[14]   We are convinced that this is a case where there is a legal question of

       negligence at stake, as New was engaged in conduct that can be undertaken

       with due care, namely operating a motor vehicle. The main theory of New’s

       defense was that she backed her vehicle into Barbara completely on accident. It

       is well settled that “[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)). New’s claim that she was only

       negligent was at least a theory, with some foundation in the evidence, that

       could have led to her acquittal, and therefore she was entitled to have a jury

       instruction explaining that theory. Contrary to the State’s assertion, simply

       allowing New’s counsel to argue that what she did was negligent rather than

       reckless was an inadequate substitute for an instruction from the trial court

       explaining the concept. Understanding the difference between reckless and

       negligent conduct is not an easy task, and “even those trained in the legal

       profession have grappled with abstract notions regarding degrees of

       culpability.” Taylor v. State, 457 N.E.2d 594, 599 (Ind. Ct. App.1983).


[15]   Under the circumstances presented, we conclude that New’s proposed

       instruction was a correct statement of law, was based upon the evidence, was

       not covered by other instructions, and was necessary to enable the jury to fairly

       consider New’s theory or defense. As such, New’s substantial rights were

       prejudiced by the trial court’s failure to give the instruction. Therefore, we




       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019       Page 10 of 13
       reverse New’s criminal recklessness conviction and remand for a new trial as to

       that charge.2


           Section 2 – The State presented sufficient evidence to support
                 New’s conviction for resisting law enforcement.
[16]   We next address New’s claim that the State presented insufficient evidence to

       support her conviction for resisting law enforcement. Sufficiency of the

       evidence claims “face a steep standard of review.” Griffith v. State, 59 N.E.3d

       947, 958 (Ind. 2016). When reviewing a challenge to the sufficiency of

       evidence, we neither reweigh evidence nor judge witness credibility. Moore v.

       State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence

       and reasonable inferences most favorable to the verdict and will affirm the

       conviction unless no reasonable factfinder could find the elements of the crime

       proven beyond a reasonable doubt. Id. Reversal is appropriate only when

       reasonable persons would be unable to form inferences as to each material

       element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

       2006), trans. denied.


[17]   To convict New of class A misdemeanor resisting law enforcement, the State

       was required to prove beyond a reasonable doubt that Hill knowingly or

       intentionally forcibly resisted, obstructed, or interfered with a law enforcement

       officer or a person assisting the officer while the officer was lawfully engaged in



       2
        As stated above, the instructional error is dispositive of our consideration of New’s criminal recklessness
       conviction. Thus, we need not address her challenge to the sufficiency of the evidence regarding that charge.

       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019                             Page 11 of 13
       the execution of the officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). New

       concedes that Deputy Lanham was lawfully engaged in the execution of his

       duties as a law enforcement officer. She claims only that the State failed to

       prove that she “forcibly” resisted Deputy Lanham in the execution of those

       duties.


[18]   A person forcibly resists a police officer when she uses strong, powerful, violent

       means to impede an officer in the lawful execution of his duties. Walker v. State,

       998 N.E.2d 724, 726-27 (Ind. 2013). An overwhelming or extreme level of

       force is not required; rather, forcible resistance may be satisfied with even a

       modest exertion of strength, power, or violence. Id. at 727. Deputy Lanham

       testified that after he was finally able to get New to comply with his request to

       exit her vehicle, she repeatedly disregarded his attempts to lead her to the rear

       of the vehicle, each time pulling away from his grip to try to get back to the

       driver’s door. At one point, Deputy Lanham had to grab New by the shoulders

       to try to prevent her from yet again ignoring his commands. After she

       maneuvered away a third time, Deputy Lanham attempted to put handcuffs on

       New, but New began struggling to an extent that another officer had to step in

       to assist. Deputy Lanham described New as being “fairly strong for a small

       woman resisting being placed in handcuffs.” Tr. Vol. 3 at 250. The jury could

       reasonably infer from this evidence that New engaged in at least a modest

       exertion of strength to impede Deputy Lanham in the execution of his duties as

       a police officer. The State presented sufficient evidence to support New’s




       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019      Page 12 of 13
       conviction for class A misdemeanor resisting law enforcement, and therefore

       we affirm that conviction.


[19]   Affirmed in part, reversed in part, and remanded.


       Baker, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019   Page 13 of 13
