ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Bradley K. Mohler                                           Steve Carter
Ponton & Mohler                                             Attorney General of Indiana
Frankfort, Indiana
                                                            Ellen H. Meilaender
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana

______________________________________________________________________________

                                              In the
                               Indiana Supreme Court
                               _________________________________

                                      No. 12S02-0606-CR-213

ALFRED G. NELSON,
                                                            Appellant (Defendant below),

                                                 v.

STATE OF INDIANA,
                                                         Appellee (Plaintiff below).
                               _________________________________

                     Appeal from the Clinton Superior Court, No. 12D01-0301-FC-9
                                The Honorable Kathy R. Smith, Judge
                               _________________________________

      On Petition To Transfer from the Indiana Court of Appeals, No. 12A02-0503-CR-229
                           _________________________________

                                           June 15, 2006

Rucker, Justice.


        The State seeks transfer from an opinion of the Court of Appeals reversing Alfred
Nelson’s conviction for failure to stop after an accident resulting in death, a Class C felony. See
Ind. Code § 9-26-1-1. The record shows that on January 30, 2003 Ricky Duckworth was driving
a semi-tractor trailer along State Road 29 in Clinton County. Exiting a restaurant parking lot,
Nelson drove his semi-tractor trailer onto State Road 29 directly into Duckworth’s path. To
avoid a collision Duckworth veered off the roadway into a ditch, crashing into and through a
building. He was pronounced dead at the scene as a result of massive injures. Although a
witness signaled to Nelson that Duckworth was deceased, Nelson left the area before authorities
arrived. He was arrested twelve miles away and ultimately charged with reckless homicide and
failure to stop after an accident resulting in death.


       Prior to trial Nelson filed a motion to dismiss both charges. The trial court denied the
motion. At the close of the State’s case in chief Nelson moved for a directed verdict, which the
trial court also denied. Nelson took the stand in his own defense. After the close of evidence,
the jury returned a verdict of not guilty of reckless homicide but guilty of failure to stop after an
accident resulting in death. Nelson appealed arguing the trial court erred in denying his motion
to dismiss and his motion for directed verdict. His argument was premised upon Honeycutt v.
State, 760 N.E.2d 648 (Ind. Ct. App. 2001), a case in which a panel of the Court of Appeals
declared that “the legislature limits the scope of [Indiana Code section 9-26-1-1] to incidents
involving a vehicle striking something that causes injury to someone, or a vehicle striking a
person and causing injury.” Id. at 651. Because there was no evidence that the victim in that
case had been struck by the defendant’s vehicle, the court reversed the defendant’s conviction,
declaring that Indiana Code section 9-26-1-1 did not apply.


       The Court of Appeals in this case declined to follow Honeycutt. Instead the court relied
upon Armstrong v. State, 818 N.E.2d 93 (Ind. Ct. App. 2004), in which a different panel of the
Court of Appeals also declined to follow Honeycutt. The Armstrong court held:

               As discussed above, nothing inherent in the term “accident”
               suggests that it encompasses only incidents where someone or
               something is struck. Upon closer examination, we believe the term
               “accident” is the bellwether for all of the duties imposed by
               Indiana Code section 9-26-1-1 . . . . We therefore hold that all of
               the duties imposed by the statute apply to a “driver of a vehicle
               involved in an accident.” With our interpretation, we respectfully
               decline to follow Honeycutt.




                                                   2
Id. at 99. See Nelson v. State, 840 N.E.2d 890, 892 (Ind. Ct. App. 2006). However, just as in
Armstrong, expressing the due process implications of its decision, the Court of Appeals in this
case also declined to apply the statute retroactively to the appellant. The court thus reversed the
judgment of the trial court on the ground that it should have granted Nelson’s motion to dismiss
under Honeycutt. Nelson, 840 N.E.2d at 893.


       In an opinion handed down today, we adopted that portion of Armstrong interpreting
Indiana Code section 9-26-1-1. Armstrong v. State, No. 26S05-0606-CR-212, slip op. at 5,
___N.E.2d___, ___, (Ind. June 15, 2006).          In doing so we “disapprove[d] the contrary
interpretation of the statute announced in Honeycutt.” Id. However, we disagreed with our
colleagues on the question of retroactivity. We held instead that “the central question to be
asked in deciding whether retroactive application of a judicial decision violates due process is
whether the defendant had fair warning that his conduct was criminal at the time he engaged in
it.” Id., slip op. at 7. Based on the wording of the statute along with this Court’s assessment of
the statute’s predecessor we concluded that, “Armstrong had fair warning that his conduct—
failing to stop after an accident resulting in death—was criminal.” Id., slip op. at 8. We reach
the same conclusion here. The Due Process Clause of the Fifth Amendment, made applicable to
the states by the Fourteenth Amendment, did not bar Nelson’s prosecution for this offense. We
now grant transfer and affirm the judgment of the trial court.


Shepard, C.J., and Dickson, Sullivan and Boehm, JJ., concur.




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