MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                          Oct 07 2015, 8:36 am
this Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Karen M. Heard                                           Gregory F. Zoeller
Vanderburgh County Public Defender’s                     Attorney General of Indiana
Office
Evansville, Indiana                                      Christina D. Pace
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Jacob Lacy Higgins,                                      October 7, 2015
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1409-CR-426
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable Carl A. Heldt,
Appellee-Plaintiff.                                      Senior Judge

                                                         The Honorable, David D. Kiely,
                                                         Judge
                                                         Trial Court Cause No.
                                                         82C01-1310-FA-1065




Brown, Judge.



Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 1 of 15
[1]   Jacob Lacy Higgins appeals his convictions and sentence for criminal

      recklessness as a class D felony and failure to return to the scene of an accident

      resulting in serious bodily injury as a class D felony. Higgins raises three issues

      which we revise and restate as:


        I.    Whether the State presented sufficient evidence to sustain Higgins’s
              convictions; and

       II.    Whether his sentence is inappropriate in light of the nature of the offense
              and his character.

      We affirm.

                                      Facts and Procedural History

[2]   On September 29, 2013, a fight broke out in the early morning hours in the

      parking lot of Show-Me’s restaurant, involving eight to ten individuals and

      including Higgins, Zachary McCool, who is Higgins’s cousin, Alexander

      Marshall, Daniel Jordan, and Christopher Poodry. Prior to his arrival at Show-

      Me’s, Higgins had consumed alcohol while at a party with McCool. At Show-

      Me’s, Higgins and McCool jumped on Marshall, who is Jordan’s brother.

      Higgins and McCool took Jordan’s brand new Chicago Bulls hat, and then

      entered a White Camaro. Higgins drove towards Poodry and then drove out of

      the restaurant parking lot. The other individuals involved in the fight went to

      the AMC parking lot where the fight continued.


[3]   Higgins drove the car into the AMC parking lot and was driving back and forth.

      He performed a “burnout,” was “driving crazy,” and “he was doing donuts

      where tires were spinning.” Transcript at 151, 191. While Higgins was driving,

      Poodry threw a rock at his car, which shattered the back window. Higgins
      Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 2 of 15
      continued driving, then turned around, and drove toward Poodry. At some

      point in the parking lot, McCool opened the car door and entered the Camaro.

      Higgins turned and drove directly towards Jordan, Marshall, and Poodry, who

      were not standing in a straight line, and Higgins steered towards each

      individual and struck them one by one.


[4]   Marshall was dragged underneath the car for three tenths of a mile. As a result,

      he suffered severe injuries, including scraped skin on his left arm and back, a

      dislocated leg, a broken cheekbone, the loss of his two front teeth, and a

      smashed right side of his face. He underwent two skin grafts, was left with

      permanent scarring covering half of his back and some of his right arm, he

      suffers from memory loss related to the event, but remembers being dragged

      underneath the Camaro and attempting to protect his face. Poodry suffered a

      slight concussion as a result of being struck by the Camaro, and Jordan suffered

      a cracked rib and road rash.


[5]   When Sheriff’s deputies responded to the scene, they observed skid marks,

      which appeared to have been the result of some type of aggressive maneuver, as

      well as broken lens lights in the northeastern area of the AMC parking lot.

      Two strands of human hair were recovered from the exterior of the Camaro’s

      windshield, and the damage to the windshield was consistent with a person

      hitting it.


[6]   On October 1, 2013, the State filed an information charging Higgins with Count

      I, attempted murder, a class A felony; Count II, criminal recklessness, a class D


      Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 3 of 15
      felony; and Count III, failure to return to the scene of an accident resulting in

      serious bodily injury, a class D felony. On October 23, 2013, the State filed an

      habitual offender enhancement. On June 19, 2014, Higgins advised the State

      and the court that he would be asserting the defense of necessity at trial. On

      June 27, 2014, the State amended the charging information to include Count

      IV, battery by means of a deadly weapon as a class C felony. The court held a

      bench trial on July 18 and July 21, 2014, at which the State presented testimony

      and evidence consistent with the foregoing. At the conclusion of trial, the court

      found Higgins not guilty as to Counts I and IV and guilty as to Counts II and

      III. Higgins admitted to being an habitual offender, and entered a plea of guilty

      as to the habitual offender enhancement.


[7]   On September 3, 2014, the court held a sentencing hearing. The court entered a

      judgment of conviction as to Counts II and III and found Higgins’s criminal

      history as an aggravator. The court noted Higgins’s prior felony convictions

      and that he had been revoked from probation. As mitigators, the court stated

      that “the victim, while this is certainly not a defense to the crime, the victim as

      well as others played some part in the confrontation which led up to this

      crime,” and that “under the impression of a professional, [Higgins] has some

      diminished mental capacity which the Court finds is some but not of great

      mitigating circumstance.” Id. at 346-347. The court sentenced him to two and

      one-half years executed at the Department of Correction (“DOC”) under Count

      II, and to two and one-half years executed at the DOC under Count III to be

      served concurrently, and to an additional three and one-half years executed in


      Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 4 of 15
      the DOC on the habitual offender enhancement, resulting in an aggregate

      sentence of six years.


                                                   Discussion

                                                         I.


[8]   The first issue is whether the State presented sufficient evidence to sustain

      Higgins’s convictions. When reviewing the sufficiency of the evidence to

      support a conviction, we must consider only the probative evidence and

      reasonable inferences supporting the verdict. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). We do not assess witness credibility or reweigh the evidence.

      Id. We consider conflicting evidence most favorably to the trial court’s ruling.

      Id. We affirm the conviction unless “no reasonable fact-finder could find the

      elements of the crime proven beyond a reasonable doubt.” Id. (quoting Jenkins

      v. State, 726 N.E.2d 268, 270 (Ind. 2000)). It is not necessary that the evidence

      overcome every reasonable hypothesis of innocence. Id. at 147. The evidence

      is sufficient if an inference may reasonably be drawn from it to support the

      verdict. Id.


[9]   Higgins argues the State failed to prove that his action created a substantial risk

      of bodily injury to Marshall with respect to his conviction for criminal

      recklessness as a class D felony, and failed to negate the elements of his defense

      of necessity.




      Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 5 of 15
       A. Substantial Risk of Bodily Injury


[10]   At the time of the offense, Ind. Code § 35-42-2-2 provided in part:

               (b) A person who recklessly, knowingly, or intentionally performs:
                        (1) an act that creates a substantial risk of bodily injury to
                        another person . . . .
                                                     *****
               commits criminal recklessness. Except as provided in subsection (c),
               criminal recklessness is a Class B misdemeanor.
               (c) The offense of criminal recklessness as defined in subsection (b) is:
                                                     *****
                        (2) a Class D felony if:
                                (A) it is committed while armed with a deadly weapon .
                                ...


       Subsequently amended by Pub. L. No. 158-2013, § 423 (eff. July 1, 2014). The

       State alleged that Higgins “did recklessly, knowingly, or intentionally perform

       an act, to wit: striking and dragging Alexander Marshall that created a

       substantial risk of bodily injury to Alexander Marshall while armed with a

       deadly weapon, to-wit: white Chevrolet Camaro . . . .” Appellant’s Appendix

       at 10. Thus, the State was required to prove beyond a reasonable doubt that

       Higgins recklessly, knowingly, or intentionally struck and drug Marshall with a

       white Chevrolet Camaro, which was an act that created a substantial risk of

       bodily injury to Marshall. For purposes of the criminal recklessness statute, a

       “substantial” risk is a risk that has “substance or actual existence.” Boushehry v.

       State, 648 N.E.2d 1174, 1177 (Ind. Ct. App. 1995) (quoting Elliot v. State, 560

       N.E.2d 1266, 1267 (Ind. Ct. App. 1990)), reh’g denied.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 6 of 15
[11]   Higgins argues that the State failed to prove that his acts created a substantial

       risk of bodily injury. He asserts that the people surrounding him, who chased

       after his car and threw a rock at the car created the substantial risk of bodily

       injury.


[12]   The State argues that the evidence is sufficient to support Higgins’s conviction

       for criminal recklessness as a Class D felony, and it notes that Higgins concedes

       that a vehicle is a deadly weapon. The State maintains that Higgins escalated

       the ongoing physical altercation and that the other participants in the fight did

       not create a substantial risk of bodily injury while Higgins was in his car

       “fishtailing 360 degrees” in and around pedestrians. Appellee’s Brief at 9.


[13]   We note that Higgins does not dispute that his car constituted a deadly weapon,

       and he solely challenges whether the State presented sufficient evidence to

       prove that he created a substantial risk of bodily injury. The record reveals that

       Higgins had consumed alcohol prior to his arrival at the Show-Me’s parking lot

       and played a role in the initial physical alteration that occurred there by taking

       Marshall’s new Chicago Bulls hat before driving to the AMC parking lot. The

       record further reveals that Higgins drove aggressively near pedestrians and

       ultimately struck and dragged Marshall underneath his car. Marshall was hit

       by the car and testified that when he was underneath the car he “was being drug

       by my shoulder at first and then my head, I guess my head smacked the ground

       and I woke up and I was just trying to protect my face . . . .” Transcript at 232.

       The State also presented photographic evidence detailing the extent and severity

       of Marshall’s injuries. Deputy Kirk Kuester testified that he “observed a red

       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 7 of 15
       colored substance under the front left of the vehicle, it appeared to be blood, but

       it was a red substance, appeared to be a clothing pattern along some of the parts

       of the undercarriage[.]” Id. at 108. Based on the foregoing evidence in the

       record, we cannot say that the evidence before the court was insufficient to

       demonstrate that Higgins created a substantial risk of bodily injury by driving

       aggressively near pedestrians and in striking and dragging Marshall underneath

       his Camaro. See Beach v. State, 512 N.E.2d 440, 445 (Ind. Ct. App. 1987)

       (affirming the defendant’s conviction for criminal recklessness where he argued

       with a group of people in front of a house then drove his car on the sidewalk in

       front of that house and “narrowly missed” a pedestrian who was in his car’s

       path), reh’g denied, trans. denied.


       B. Defense of Necessity


[14]   Higgins further contends that the State failed to present sufficient evidence to

       negate his claim that he acted out of necessity. When reviewing whether the

       State presented sufficient evidence to negate a defendant’s claim of necessity,

       we apply the same standard of review used for all sufficiency of the evidence

       questions. Belton v. State, 6 N.E.3d 1043, 1046 (Ind. Ct. App. 2013).

               In order to prevail on a claim of necessity, the defendant must show
               (1) the act charged as criminal must have been done to prevent a
               significant evil, (2) there must have been no adequate alternative to the
               commission of the act, (3) the harm caused by the act must not be
               disproportionate to the harm avoided, (4) the accused must entertain a
               good faith belief that his act was necessary to prevent greater harm, (5)
               such belief must be objectively reasonable under all the circumstances,
               and (6) the accused must not have substantially contributed to the
               creation of the emergency.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 8 of 15
       Id. (citing Toops v. State, 643 N.E.2d 387, 390 (Ind. Ct. App. 1994)). In order to

       negate a claim of necessity, the State must disprove at least one element of the

       defense beyond a reasonable doubt. Id. The State may refute a claim of

       the defense of necessity by direct rebuttal, or by relying upon the sufficiency of

       the evidence in its case-in-chief. Id. The decision whether a claim of necessity

       has been disproved is entrusted to the fact-finder. Id. When a defendant is

       convicted despite [his] claim of necessity, this court will reverse the conviction

       only if no reasonable person could say that the defense was negated by the State

       beyond a reasonable doubt. Id. The Indiana Supreme Court has noted that

       necessity is an affirmative defense and that an affirmative defense “admits all

       the elements of the crime but proves circumstances which excuse the defendant

       from culpability.” Melendez v. State, 511 N.E.2d 454, 457 (Ind. 1987).


[15]   Higgins argues that he did not participate in the fight, that his cousin McCool

       was chased and beaten up by at least three people, that he drove away and was

       surrounded by other fight participants, that one of the participants threw a rock

       through the car’s back windshield, and that, after McCool entered the car with

       him, Higgins exited as quickly as possible and did not return to the fight.

       Higgins asserts that he had a good faith belief that his action of driving away

       was necessary and reasonable under the circumstances and that the State failed

       to meet its burden of rebutting one of the necessary elements of his necessity

       defense.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 9 of 15
[16]   The State notes that Higgins does not cite to caselaw to prove that it was a

       necessity for him to hit three victims to prevent further damage to his car. The

       State maintains that Higgins’s act of driving his car away and hitting three

       individuals was not done to prevent a significant evil; Higgins could have left

       the scene of the fight and not entered the AMC parking lot; his actions were

       disproportionate to the harm avoided; no evidence was presented that would

       tend to show he believed in good faith that his acts were necessary to prevent a

       greater harm; and that he “contributed to the creation of the emergency” by

       instigating and provoking the fight by taking Jordan’s hat. Appellee’s Brief at

       13.


[17]   The evidence most favorable to the conviction shows that Higgins played a role

       in provoking the fight and drove his car aggressively around the other fight

       participants. The evidence also shows that Higgins drove to the AMC parking

       lot where he struck Jordan, Marshall, and Poodry, who were not standing in a

       straight line, which required him to steer towards each individual, and that

       Marshall was dragged underneath the Camaro for three tenths of a mile. The

       court, as trier of fact, could find that there was an adequate alternative to

       Higgins’s actions, that the harm caused by his actions was disproportionate to

       the harm avoided, that Higgins did not have a good faith belief that that his

       actions were necessary to prevent greater harm, that his belief that his actions

       were necessary was not objectively reasonable under all the circumstances, or

       that Higgins substantially contributed to the creation of the emergency. See

       Dozier v. State, 709 N.E.2d 27, 29-30 (Ind. Ct. App. 1999). Based upon the


       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 10 of 15
       record, the State presented sufficient evidence of probative value to negate

       Higgins’s necessity defense. We conclude that sufficient evidence supports

       Higgins’s convictions.


                                                             II.


[18]   The next issue is whether his sentence is inappropriate in light of the nature of

       the offense and his character.1 Indiana Appellate Rule 7(B) provides that this

       court “may revise a sentence authorized by statute if, after due consideration of

       the trial court’s decision, [we find] that the sentence is inappropriate in light of

       the nature of the offense and the character of the offender.” Under this rule, the

       burden is on the defendant to persuade the appellate court that his or her

       sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).


[19]   Our review of the nature of the offense reveals that Higgins participated in the

       fight, drove aggressively in the Show-Me’s and AMC parking lots, and

       eventually struck Poodry, Jordan, and Marshall one by one. As a result of

       being dragged underneath the Camaro for three tenths of a mile, Marshall

       suffered severe injuries including scraped skin on his left arm and back, a




       1
         To the extent Higgins suggests that the court abused its discretion by failing to properly weigh the proposed
       mitigators of his diminished mental capacity and impulse control issues, the fact that the fight involved
       mutual combat, and his guilty plea to the habitual offender enhancement, we observe that the court found
       these to be mitigators. This argument is, in essence, a request for this court to reweigh the mitigators, which
       we may not do. See Anglemeyer v. State, 868 N.E.2d 482, 491 (Ind. 2007) (holding that the relative weight or
       value assignable to reasons properly found or those which should have been found is not subject to review for
       abuse of discretion), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007). We cannot say that the court abused its
       discretion in failing to identify Higgins’s completion of Celebrate Recovery and Churches Embracing
       Offenders as mitigators.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015            Page 11 of 15
       dislocated leg, a broken cheekbone, and the loss of his two front teeth. Also,

       the right side of his face was smashed. Higgins’s act of striking Poodry, Jordan,

       and Marshall one by one demonstrates a disregard for the lives of others.


[20]   Our review of the character of the offender reveals that Higgins, who was born

       on December 14, 1988, had accumulated six prior felony convictions and had

       previously been revoked from probation. His felony convictions include the

       receipt of stolen property in 2008, operating a vehicle while intoxicated with an

       alcohol concentration equivalent to 0.15 or more in 2009 and again in 2011,

       operating a vehicle as an habitual traffic violator in 2013, and theft and

       possession of marijuana in 2013. Additionally, Higgins has three prior juvenile

       delinquent adjudications. Based upon the evidence presented at the sentencing

       hearing, we cannot say that the trial court imposed an inappropriate sentence

       on Higgins.


                                                   Conclusion

[21]   For the foregoing reasons, we affirm Higgins’s convictions and sentences for

       criminal recklessness as a class D felony and failure to return to the scene of an

       accident causing serious bodily injury as a class D felony.


[22]   Affirmed.


       Pyle, J., concurs.

       Crone, J., concurs in part and concurs in result in part with separate opinion.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 12 of 15
                                                  IN THE
           COURT OF APPEALS OF INDIANA

       Jacob Lacy Higgins,                                      Court of Appeals Case No.
                                                                82A01-1409-CR-426
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Crone, Judge, concurring in part and concurring in result in part.


[23]   I agree with my colleagues that the State presented sufficient evidence to sustain

       Higgins’s convictions. As for Higgins’s challenge to the appropriateness of his

       six-year sentence, counsel should be reminded that when a criminal defendant

       requests appellate review and revision of a criminal sentence pursuant to

       Appellate Rule 7(B), “an appellate court has the power to affirm, reduce, or

       increase the sentence.” Akard v. State, 937 N.E.2d 811, 813 (Ind. 2010)

       (emphasis added) (citing McCullough v. State, 900 N.E.2d 745, 750 (Ind. 2009)).


       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 13 of 15
       In light of Higgins’s senseless decision to mow down Marshall with his car

       instead of leaving the area, the severity of Marshall’s injuries, and Higgins’s

       significant criminal history, if the State had asked us to increase the sentence, I

       would have been inclined to grant that request.2


[24]   The evidence at trial established that Higgins struck and injured two other

       pedestrians with his Camaro, and it could have supported the more serious

       charges of class A felony attempted murder and class C felony battery by means

       of a deadly weapon. Regardless, the trial court would have been well within its

       discretion to impose consecutive sentences totaling four years on the class D

       felony convictions and four and a half years for the habitual offender

       enhancement, for a maximum aggregate sentence of eight and a half years. 3

       Based on the heinousness of the offenses and his character, Higgins would have

       faced an uphill battle in persuading me that the sentence was inappropriate.




       2
         A request by the State to increase a defendant’s sentence is merely a factor in, and not a prerequisite for, an
       appellate court’s consideration of an upward sentence revision. See Akard, 937 N.E.2d at 814 (“Although the
       defendant’s raising of sentence reasonableness on appeal authorizes appellate consideration of whether the
       assigned sentence is inappropriately stern or lenient, we decline to increase the sentence here, particularly in
       the context of the State’s request for no greater sentence at trial and its assertion on appeal that such is an
       appropriate sentence. These are strong indicators that the trial court sentence is not inappropriately lenient.”)
       (emphasis added).
       3
         See Ind. Code §§ 35-50-1-2 (total of consecutive terms of imprisonment for episode of criminal conduct not
       involving crimes of violence shall not exceed advisory sentence for felony that is one class of felony higher
       than most serious of felonies for which person has been convicted); 35-50-2-6 (advisory sentence for class C
       felony is four years); 35-50-2-8 (“The court shall sentence a person found to be a habitual offender to an
       additional fixed term that is not less than the advisory sentence for the underlying offense nor more than
       three (3) times the advisory sentence for the underlying offense.”); and 35-50-2-7 (advisory sentence for class
       D felony is one and a half years).

       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015              Page 14 of 15
[25]   But because the trial court was the sole factfinder at Higgins’s trial and

       Appellate Rule 7(B) requires us to give “due consideration” to its sentencing

       decision, I reluctantly concur in the result reached by my colleagues.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1409-CR-426 | October 7, 2015   Page 15 of 15
