MEMORANDUM DECISION
                                                                                 FILED
Pursuant to Ind. Appellate Rule 65(D),                                      08/31/2017, 9:36 am
this Memorandum Decision shall not be                                            CLERK
                                                                             Indiana Supreme Court
regarded as precedent or cited before any                                       Court of Appeals
                                                                                  and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Scott L. Barnhart                                        Curtis T. Hill, Jr.
Brooke Smith                                             Attorney General of Indiana
Keffer Barnhart, LLP
Indianapolis, Indiana                                    Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jay Lavender,                                            August 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1701-CR-105
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Honorable Salvador Vasquez,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         45G01-1408-F5-6



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017             Page 1 of 10
                                             Case Summary
[1]   Jay Gary Lavender appeals his conviction for Class B misdemeanor reckless

      operation of a tractor-trailer. We affirm.


                                                    Issues
[2]   Lavender raises two issues on appeal:

                I.    whether the trial court abused its discretion by refusing
                      Lavender’s proposed jury instruction; and


               II.    whether the evidence is sufficient to sustain Lavender’s
                      conviction for Class B misdemeanor reckless operation of
                      a tractor-trailer.


                                                     Facts
[3]   On August 9, 2014, Ajit Andrew Das stopped in Hobart to get gas for his

      minivan at a gas station located on the corner of U.S. 30 and Mississippi Street.

      Hobart Police Department Officer Christopher Sipes was parked at the gas

      station, on duty and watching traffic for potential violations. As Das pulled out

      of the station, heading west, he made a legal right turn into the first through-

      lane. There were two cars stopped at a red light in front of him. Lavender’s

      truck was about 240-270 feet behind Das when he pulled out. As Das was

      coming to a stop, he heard Lavender begin to honk his horn and continue to

      honk his horn until he approached Das’s vehicle. Das later said, “I mean, he

      probably would have slowed down somewhat, but to come to the stop where I

      am, to come to stop at the light, it seemed awfully aggressive on the speed. I’ve

      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 2 of 10
      never seen a truck close a red light with that sort of speed.” Tr. Vol. I p. 49.

      Lavender stopped the tractor-trailer at an angle. The cab of the truck stopped in

      the left lane next to Das’s driver’s-side window, and the trailer of the truck was

      behind Das’s vehicle.


[4]   Once the vehicle was stopped, Lavender got into the passenger seat of his truck,

      rolled down the window, and began yelling at Das. Das did not roll down his

      window because he did not want to make the situation worse. After Lavender

      yelled at Das, Lavender climbed back into the driver’s seat, angled the front of

      the cab toward Das’s vehicle, and “lurched” at him two or three times. Id. at

      53. Das was afraid the truck would hit his vehicle but it did not, although it

      came within inches of doing so.


[5]   Officer Sipes observed the incident between Das and Lavender. He believed

      that, based on his training and experience, Das had not committed any traffic

      violations when he pulled out of the gas station and that Lavender had enough

      room to stop without colliding with Das’s vehicle. Officer Sipes later explained

      that Lavender’s “[stop] appeared controlled to me. It didn’t look like he was

      driving recklessly at that point. It looked like he could have stopped if he had

      chosen to.” Id. at 112. Officer Sipes also witnessed Lavender yell at Das and

      then lurch the tractor-trailer toward Das’s vehicle. Officer Sipes pulled over

      both Lavender and Das; Das was soon allowed to leave, but Lavender was

      arrested.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 3 of 10
[6]   On August 11, 2014, the State charged Lavender with Level 6 felony

      intimidation, Level 6 felony criminal recklessness, Class B misdemeanor

      reckless operation of a tractor-trailer, and the Class C infractions of excessive

      use of a horn and unsafe lane movement. A jury trial began on October 25,

      2016. Following the State’s evidence, the trial court granted Lavender’s request

      for a directed verdict for the Level 6 felony intimidation charge, but denied his

      request for the remaining charges.


[7]   During the trial, Lavender tendered a proposed jury instruction, which

      provided: “If the evidence merely tends to establish a suspicion of guilt or the

      mere opportunity to commit the charged act, it is clearly insufficient to sustain a

      conviction.” App. Vol. II p. 111. The trial court refused to give the instruction,

      stating: “I think it’s largely covered already in the burden of proof instruction . .

      . and presumption of innocence instruction that the Court’s already giving the

      jury. I do not believe that this instruction adds anything more than what’s

      already being given.” Tr. Vol. II p. 50.


[8]   The jury found Lavender guilty of Class B misdemeanor reckless operation of a

      tractor-trailer and found him not guilty or not liable for the other charges. A

      sentencing hearing was held on December 14, 2016. During the hearing,

      Lavender moved for judgment notwithstanding the verdict. The trial court

      denied the motion and sentenced Lavender to time served. Lavender now

      appeals.




      Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 4 of 10
                                                   Analysis
                                       I. Proposed Jury Instruction

[9]    Lavender argues that the trial court abused its discretion when it refused to give

       his tendered instruction. The purpose of jury instructions 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.

       Murray v. State, 798 N.E.2d 895, 899 (Ind. Ct. App. 2003). We review a trial

       court’s decision on how to instruct a jury for abuse of discretion. Short v. State,

       962 N.E.2d 146, 151 (Ind. Ct. App. 2012). In reviewing a trial court’s decision

       to give a tendered jury instruction, we consider whether the instruction

       correctly states the law, is supported by the evidence in the record, and is not

       covered in substance by other instructions. Murray, 798 N.E.2d at 900. We will

       reverse a conviction based on alleged instructional error only if the defendant

       demonstrates that the error prejudiced his or her substantial rights. Id.


[10]   Lavender tendered the following proposed jury instruction: “If the evidence

       merely tends to establish a suspicion of guilt or the mere opportunity to commit

       the charged act, it is clearly insufficient to sustain a conviction.” App. Vol. II p.

       111. In rejecting the instruction, the trial court noted that it would give several

       instructions on the burden of proof and presumption of innocence that it

       believed adequately covered Lavender’s proposed instruction. Those

       instructions provided in part:

               [A] person charged with a crime is presumed to be innocent.
               This presumption of innocence continues in favor of the

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 5 of 10
               defendant throughout each stage of the trial and you should fit
               the evidence presented to the presumption that the defendant is
               innocent, if you can reasonably do so.


               If the evidence lends itself to two reasonable interpretations, you
               must choose the interpretation consistent with the defendant’s
               innocence. If there is only one reasonable interpretation, you
               must accept that interpretation and consider the evidence with all
               the other evidence in the case in making your decision.


               To overcome the presumption of innocence, the State must prove
               the defendant guilty of each element of the crime charged,
               beyond a reasonable doubt.


                                                    *****


               A defendant must not be convicted on suspicion or speculation.
               It is not enough for the State to show that the defendant is
               probably guilty. . . .


               The State must prove each element of the crimes charged by
               presenting evidence that firmly convinces each of you and leaves
               no reasonable doubt. The proof must be so convincing that you
               can rely and act upon it in this matter of the highest importance.
               If you find that there is a reasonable doubt that the defendant is
               guilty of the crimes, you must give the defendant the benefit of
               that doubt and find the defendant not guilty of the crime under
               consideration.


       Id. at 94-95.


[11]   In Townsend v. State, 934 N.E.2d 118 (Ind. Ct. App. 2010), trans. denied, we

       upheld the refusal to give an instruction identical to Lavender’s proposed


       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 6 of 10
       instruction because its substance was adequately covered by the given

       instructions. We noted that jury instructions must be considered as a whole

       and in reference to each other. Townsend, 934 N.E.2d at 130. Additionally, a

       refusal to give a proposed instruction is not reversible error unless the

       instructions as a whole misstate the law or misled the jury. Id. A trial court’s

       given instructions are adequate if they reasonably inform the jury of the basis

       upon which it could, and could not, convict a defendant. Id.


[12]   As in Townsend, the trial court here gave numerous instructions regarding the

       State’s burden of proof and Lavender’s presumption of innocence. Considering

       the instructions as a whole, the proposed “mere opportunity” instruction was

       unnecessary. The trial court did not abuse its discretion by refusing to give

       Lavender’s proposed instruction. 1


                                         II. Sufficiency of the Evidence

[13]   Lavender contends that the evidence was insufficient to sustain a conviction for

       Class B misdemeanor reckless operation of a tractor-trailer. When reviewing a

       claim of insufficient evidence, we neither reweigh evidence nor judge the

       credibility of witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App.

       2007). We consider only the probative evidence and reasonable inference




       1
         Lavender suggests that the jury’s allegedly “inconsistent” verdicts “could mean that it misunderstood its
       instructions,” quoting Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010). The next sentence in Beattie, however
       is, “But it is much more likely that the jury chose to exercise lenity, refusing to find the defendant guilty of
       one or more additionally charged offenses, even if such charges were adequately proven by the evidence.” Id.
       We see no indication here that the jury misunderstood its instructions.

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017               Page 7 of 10
       supporting the verdict. Townsend, 934 N.E.2d at 126. We will affirm a

       conviction unless we conclude that no reasonable fact-finder could find the

       elements of the crime proven beyond a reasonable doubt. Stokes v. State, 922

       N.E.2d 758, 763 (Ind. Ct. App. 2010), trans. denied. The evidence is sufficient if

       an inference may reasonably be drawn from it to support the verdict. Townsend,

       934 N.E.2d at 126.


[14]   Pursuant to Indiana Code Section 9-21-8-50, “[a] person who operates a tractor-

       trailer combination in a reckless or deliberate attempt to: (1) endanger the

       safety or property of others; or (2) block the proper flow of traffic; commits a

       Class B misdemeanor.” “A person engages in conduct ‘recklessly’ if 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). “Recklessness . . . differs

       from intentionality in that the actor does not seek to attain the harm; rather he

       believes that the harm will not occur.” Humes v. State, 426 N.E.2d 379, 383

       (Ind. 1981). The word “endanger” or “endangerment” in a criminal statute

       refers to past or present conduct by the defendant that placed a person in danger

       and does not require that actual harm or injury occur. See Davis v. State, 13

       N.E.3d 500, 503 (Ind. Ct. App. 2014).


[15]   Lavender contends that “the movement of the tractor and Das’s subjective

       perception or fear does not equate to proof or evidence that Lavender recklessly

       or deliberately attempted to endanger Das or his property.” Appellant’s Br. p.

       14. Even if Das’s subjective fear of harm was irrelevant, there is ample

       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 8 of 10
       objective evidence that Lavender operated his tractor-trailer in a reckless

       manner. The evidence most favorable to the conviction is that Das made a safe

       and legal turn onto U.S. 30. According to Officer Sipes, a trained professional

       who observed the incident, Lavender had sufficient room to stop his tractor-

       trailer behind Das’s vehicle. Instead, Lavender came to a controlled stop with

       his cab at Das’s driver’s-side door and the trailer behind Das’s vehicle.

       Lavender then yelled and gestured at Das before getting back behind the wheel

       and deliberately lurching his tractor-trailer towards Das, coming within inches

       of striking Das’s vehicle, before driving away.


[16]   This evidence is sufficient to prove that Lavender recklessly endangered Das’s

       property or safety. Although no harm actually came from Lavender’s conduct,

       the statute criminalizing reckless operation of a tractor-trailer does not require

       such harm. Rather, it is clearly intended to dissuade operators of tractor-trailers

       from operating their vehicles recklessly due to their large size and potential

       danger to other drivers and to prevent actual harm from happening. Lavender’s

       actions of stopping his tractor-trailer in the way he did when he did not need to

       do so, and then of lurching towards Das’s minivan while in an angry state of

       mind, was reckless conduct that could have resulted in serious harm to Das’s

       vehicle or Das himself if Lavender had slightly misjudged his stop or lurched

       just a few inches further. Lavender’s sufficiency argument is a request to

       reweigh the evidence that we must decline.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 9 of 10
                                                 Conclusion
[17]   The trial court did not abuse its discretion by refusing Lavender’s proposed jury

       instruction, and there was sufficient evidence to sustain Lavender’s conviction

       for Class B misdemeanor reckless operation of a tractor-trailer. We affirm.


[18]   Affirmed.


       Baker, J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1701-CR-105| August 31, 2017   Page 10 of 10
