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
                                                       Dec 27 2013, 7:30 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                                  ATTORNEYS FOR APPELLEE:

ELIZABETH A. HOUDEK                                      GREGORY F. ZOELLER
Indianapolis, Indiana                                    Attorney General of Indiana

                                                         CYNTHIA L. PLOUGHE
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

BRANDON WHITE,                                     )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 49A04-1304-CR-188
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Barbara L. Crawford, Judge
                              Cause No. 49F09-1208-FD-44978


                                        December 27, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                        Case Summary

          Brandon White (“White”) appeals his conviction for Criminal Recklessness, as a Class

D felony,1 presenting the sole issue of whether the trial court abused its discretion by refusing

his tendered instruction on the defense of accident. We affirm.

                                Facts and Procedural History

          During the evening of June 10, 2012, a group of friends visited Angela Knox

(“Knox”) at the Hawthorne Apartments in Indianapolis. White made a sexually-oriented

comment to another guest, Shattanza Johnson (“Johnson”) and a heated argument ensued.

Jasmine Smith (“Smith”) left to sit in Johnson’s vehicle and conduct a telephone

conversation.

          About an hour later, White was leaving the gathering but Knox and Johnson followed

him to his vehicle, continuing the argument. White pulled out a pocketknife saying he “don’t

want to do it.” (Tr. 90.) Smith exited the vehicle in which she had been sitting.

          At some point during the argument, Knox struck White in the face. He responded,

“Hell no.” (Tr. 94.) He then backed up his vehicle, nearly striking Johnson. He moved the

vehicle in what Smith considered to be a deliberate attempt to hit Johnson, but Johnson was

not hit. It also appeared to Smith that White attempted to hit Knox. White moved his vehicle

onto the sidewalk; the vehicle bumped Smith, who fell to the ground. White backed up his

vehicle. The vehicle ran over Smith, causing a broken clavicle, a bruised pelvis, and multiple

abrasions. White sped away.



1
    Ind. Code § 35-42-2-2.

                                               2
       On February 20, 2013, White was brought to trial before a jury on the charge of

Criminal Recklessness. He tendered an instruction on the defense of accident which was

refused by the trial court. White was convicted as charged and sentenced to 545 days

imprisonment, with 180 days suspended. He now appeals.

                                  Discussion and Decision

       The jury received instructions defining the charged offense of Criminal Recklessness

and the requisite mens rea for conviction. The jury was also instructed that, if the State failed

to prove an element beyond a reasonable doubt, White must be acquitted. White asserted that

he was entitled to have the jury instructed on “accident” and tendered the following

instruction:

       If, after consideration of all the evidence, you have a reasonable doubt as to
       whether or not the conduct was an accident, you must resolve the doubt in
       favor of the defendant and [bring in a verdict of not guilty] [find criminal
       intent to be absent]. The State has the burden of disproving accident beyond a
       reasonable doubt.

(App. 94.) The State argued that the substance of the instruction was adequately covered by

other instructions; that is, if the State proved reckless conduct, the State had disproved

accidental conduct. The trial court agreed and refused the proffered accident instruction.

       We review a trial court’s refusal to give a tendered instruction for an abuse of

discretion. Springer v. State, 798 N.E.2d 431, 433 (Ind. 2003). We consider whether the

instruction correctly states the law, whether there is evidence in the record to support the

giving of the instruction, and whether the substance of the tendered instruction is covered by

other instructions that are given. Id. Any error in the refusal of a tendered jury instruction is



                                               3
subject to a harmless error analysis; that is, before a defendant is entitled to reversal, he must

affirmatively show that the error prejudiced his substantial rights. Snell v. State, 866 N.E.2d

392, 396 (Ind. Ct. App. 2007).

       In Springer v. State, 779 N.E.2d 555 (Ind. Ct. App. 2002), trans. granted, adopted in

relevant part, a panel of this Court considered whether a defendant charged with Criminal

Recklessness had been entitled to an accident instruction. In rejecting the appellant’s

argument, this Court observed that the proffered instruction had been withdrawn from the

pattern instructions because the Indiana Judges Association Criminal Instructions Committee

“could not conceive of a situation where the principles incorporated in the accident

instruction would not be covered by other instructions which discussed the elements of the

crime and the State’s burden of proof.” Id. at 562. Ultimately, the Court “agree[d] with the

trial court and the Committee that the principles established in the accident instruction [were]

included in the instructions given defining the elements of the crime.” Id. On transfer, the

Indiana Supreme Court adopted this Court’s reasoning with respect to the issue of whether an

accident instruction should have been given. See Springer, 798 N.E.2d at 436 (“[The Court]

reasoned that ‘were the jury to decide that the shooting was a result of an accident, there is no

question that the jury could not find that he was reckless.’ We adopt the opinion of the Court

of Appeals on this point.”).

       “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.” Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001). Here, the


                                                4
jury was instructed on the elements of Criminal Recklessness and the requisite mens rea. The

jury was also instructed that the State bore the burden of establishing the elements of the

charged offense beyond a reasonable doubt and that failure in the burden of proof would

require acquittal. If the State proved recklessness beyond a reasonable doubt, it necessarily

negated a claim that the conduct was accidental. Accordingly, the jury was not misled as to

the applicable law by the refusal of an additional instruction on accident.

                                         Conclusion

       White has demonstrated no prejudice to his substantial rights in the trial court’s refusal

to give his tendered instruction on accident.

       Affirmed.

FRIEDLANDER, J., and KIRSCH, J., concur.




                                                5
