                                                                             FILED
                                                                      Mar 09 2020, 8:45 am

                                                                             CLERK
                                                                         Indiana Supreme Court
                                                                            Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Susan D. Rayl                                            Curtis T. Hill, Jr.
Hand Ponist Horvath Smith & Rayl, LLC                    Attorney General of Indiana
Indianapolis, Indiana                                    Lauren A. Jacobsen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Daniel Cannon,                                           March 9, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-1036
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Sheila A. Carlisle,
Appellee-Plaintiff,                                      Judge
                                                         Trial Court Cause No.
                                                         49G03-1706-F5-23831



Robb, Judge.




Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020                                Page 1 of 12
                                Case Summary and Issue
[1]   Following a jury trial, Daniel Cannon was found guilty of two counts of

      criminal recklessness resulting in death, a Level 5 felony; three counts of

      criminal recklessness resulting in serious bodily injury, a Level 6 felony; leaving

      the scene of an accident resulting in death, a Level 5 felony; and leaving the

      scene of an accident with serious bodily injury, a Level 6 felony. The trial court

      sentenced Cannon to serve six years in the Indiana Department of Correction

      (“DOC”). Cannon appeals and raises the sole issue of whether there is

      sufficient evidence to support his convictions. Concluding there was sufficient

      evidence, we affirm.



                            Facts and Procedural History
[2]   The facts most favorable to the verdicts are as follows. On the evening of April

      18, 2017, Taylor Parsons, Brandon Gross, Michael Blackmore, Olivia Evans,

      and Kristopher Church (collectively “the teenagers”) drove to West Park, which

      is located near the intersection of Morris and Tremont Streets in Indianapolis.

      The teenagers sat on the playground equipment, shared a marijuana joint, and

      hung out, “having fun, talking[, and] joking with each other[.]” Transcript,

      Volume 2 at 190. As the teenagers hung out, Danielle Cannon, Cannon’s older

      sister, and Felicity Lowry, Cannon’s girlfriend at the time, were near the park

      searching for Cannon’s missing drone. They overheard the teenagers’

      conversation and Felicity yelled out a comment in response. The teenagers

      engaged in banter with Danielle and Felicity as they continued to search for the

      Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020         Page 2 of 12
      drone. The joking escalated and became argumentative and aggressive;

      Danielle asked if the teenagers wanted to fight.


[3]   The teenagers then climbed into Taylor’s car, a gold Nissan Pathfinder; Taylor

      got into the driver’s seat with Michael in the front passenger seat, Brandon

      seated directly behind Taylor, Kris in the middle back seat, and Olivia seated

      behind Michael. They drove across the soccer field toward Danielle and

      Felicity as if they were “playing chicken[.]” Id. at 128. With all the teenagers

      in the Pathfinder, Taylor drove past Danielle and Felicity and then exited onto

      the street; Danielle and Felicity began running after the vehicle. At some point,

      as they all continued to argue, a black SUV driven by Cannon pulled up next to

      the Pathfinder and turned its headlights off. The teenagers were unable to see

      the driver because the SUV had tinted windows; the SUV was so close to the

      Pathfinder that Taylor and Brandon, both on the driver’s side of the vehicle,

      would not have been able to open their doors. When the SUV pulled up,

      Danielle and Felicity stopped running and began yelling to Cannon that the

      teenagers tried to run them over.


[4]   Concerned about the SUV’s conduct, Taylor drove down the street. Cannon

      followed in the SUV. Once Taylor turned onto Morris Street, Cannon

      continued directly behind them at a very close distance. Olivia testified that

      Cannon was “getting so close to us, we really th[ought] he’s going to hit the car

      that[’s] why we had to go faster. And then he wouldn’t stop or slow down, he’d

      go faster again.” Id. at 203. Fearing the SUV would hit them given the traffic

      at an upcoming stoplight on Holt Road, they got onto I-70 and immediately

      Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020        Page 3 of 12
      moved into the fast lane. Their speed was “gradually increasing[.]” Id. at 204.

      Cannon followed them onto the interstate and the chase continued. Cannon

      would give them “a little room and then . . . would go faster again.” Id. at 205.

      The teenagers believed Cannon was going to run into their car; they weaved in

      and around the other cars on the interstate at an extremely high speed, ranging

      from 70 to 120 mph.


[5]   While still in the fast lane and driving at a high speed, Taylor veered to get off

      the interstate and on to the Harding Street exit. However, the exit ramp was

      short and had a red light at the end. Taylor then attempted to turn back onto

      interstate but as soon as she tried to turn, the car flipped five or six times. At no

      point did Cannon’s vehicle make physical contact with the Pathfinder. At the

      time of the accident, Olivia was the only one wearing her seatbelt; the other

      teenagers were ejected from the vehicle. Brandon and Taylor were killed, and

      the other teenagers survived but suffered serious injuries. Michael suffered an

      aortic tear, dislocated shoulder, a broken femur, and a broken collar bone; Kris

      suffered loss of consciousness, a broken shoulder blade, a bruised lung, a

      traumatic brain injury, and memory loss; and Olivia suffered loss of

      consciousness, a scalp laceration, and memory loss. See [Confidential]

      Exhibits, Volume 1 at 38-39. Officers later learned that Cannon was involved

      in the chase.


[6]   On June 28, 2017, the State charged Cannon with the following: Counts I and

      II, criminal recklessness resulting in death, both Level 5 felonies; Counts III,

      IV, and V, criminal recklessness resulting in serious bodily injury, all Level 6

      Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020          Page 4 of 12
      felonies; Count VI, leaving the scene of an accident resulting in death, a Level 5

      felony; and Count VII, leaving the scene of an accident with serious bodily

      injury, a Level 6 felony. See Appellant’s Appendix, Volume II at 40-42. The

      State later amended the charging information and added additional charges:

      Counts VIII and IX, reckless homicide, both Level 5 felonies. See id. at 77-80.

      Notably, the parties stipulated that the injuries suffered by Michael, Kris, and

      Olivia constituted serious bodily injury to support the criminal recklessness and

      leaving the scene of an accident resulting in serious bodily injury counts. See

      Exhibits, Vol. 1 at 38-39.


[7]   A jury trial was held on November 26-28, 2018 during which testimony

      revealed that the cause of the accident was unsafe speed and overcorrection by

      the driver. Sergeant Mark Helms of the Indiana State Police was the accident

      reconstructionist in the case. At trial, he testified that had all occupants of the

      Pathfinder been wearing their seatbelts at the time of the accident, they would

      not have been ejected from the vehicle and would have remained in the

      passenger compartment. See Tr., Vol. 3 at 250; Tr., Vol. 4 at 4. Helms agreed

      that four of the teenagers’ failure to wear a seatbelt led to more serious injuries

      and/or death as they would not have been ejected from the vehicle; had they

      worn their seatbelts they would have suffered less severe injuries. Tr., Vol. 4 at

      2-4. When asked whether he believed the accident would have been survivable

      had the teenagers worn their seatbelts, Helms responded, “[m]ore than likely,

      yes.” Id. at 8.




      Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020          Page 5 of 12
[8]    The jury found Cannon guilty of Counts I through VII and not guilty of Counts

       VIII and IX (reckless homicide). The trial court entered judgments of

       conviction for Counts I and VI (criminal recklessness resulting in death and

       leaving the scene of an accident resulting in death). At the sentencing hearing,

       the trial court vacated the remaining counts and sentenced Cannon to six years

       each on Counts I and VI to be served concurrently in the DOC. Cannon now

       appeals.



                                  Discussion and Decision
                                      I. Standard of Review
[9]    Our standard of reviewing a sufficiency claim is well-settled. Brent v. State, 957

       N.E.2d 648, 649 (Ind. Ct. App. 2011), trans. denied. We do not reweigh the

       evidence or assess the credibility of the witnesses. Bailey v. State, 907 N.E.2d

       1003, 1005 (Ind. 2009). Instead, we consider only the evidence most favorable

       to the verdict and the reasonable inferences supporting it. Id. Therefore, the

       evidence need not overcome every reasonable hypothesis of innocence. Drane

       v. State, 867 N.E.2d 144, 147 (Ind. 2007). “[W]e will affirm the conviction

       unless no reasonable trier of fact could have found the elements of the crime

       beyond a reasonable doubt.” Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011).


                               II. Sufficiency of the Evidence
[10]   Cannon challenges all but one of his criminal recklessness convictions. He does

       not challenge his criminal recklessness conviction related to Olivia – the only


       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020         Page 6 of 12
       teen wearing her seatbelt – nor does he challenge his leaving the scene of an

       accident convictions. Instead, Cannon only challenges the sufficiency of the

       evidence supporting his criminal recklessness convictions related to the

       teenagers who were not wearing their seatbelts at the time of the accident,

       namely Taylor, Brandon, Michael, and Kris. Cannon’s main contention is that

       the evidence was insufficient to support his challenged convictions because

       these teenagers’ failure to wear their seatbelts constitutes an “intervening cause

       that broke the chain of causation of [his] fault for their injuries.” Brief of

       Appellant at 13. We disagree.


[11]   To convict Cannon of criminal recklessness, the State was required to prove

       that he recklessly, knowingly, or intentionally performed an act that created a

       substantial risk of bodily injury to another person. Ind. Code § 35-42-2-2(a)

       (2014). The offense is a Level 6 felony if the person committed aggressive

       driving that resulted in serious bodily injury to another person, Ind. Code § 35-

       42-2-2(b)(1)(B) (2014)1, and a Level 5 felony if it results in the death of another

       person, Ind. Code § 35-42-2-2(b)(2)(B) (2014). An intervening cause is an

       independent force that breaks the causal connection between a defendant’s

       actions and the victim’s injuries. Watson v. State, 776 N.E.2d 914, 920 (Ind. Ct.

       App. 2002). “In order for an intervening cause to break the chain of criminal




       1
         “Serious bodily injury” is defined as “bodily injury that creates a substantial risk of death or that causes: (1)
       serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or
       impairment of the function of a bodily member or organ; or (5) loss of a fetus.” Ind. Code § 35-31.5-2-292.

       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020                                      Page 7 of 12
       responsibility, it must be so extraordinary that it would be unfair to hold the

       [defendant] responsible for the actual result.” Id.


[12]   This court has explained causation in the context of criminal liability:


               The concept of causation in criminal law is similar to that found
               in tort law. Like in tort law, the criminal act must be both 1) the
               actual cause (sometimes called the “cause-in-fact”); and 2) the
               legal cause (sometimes called the “proximate cause”) of the
               result. Cause-in-fact requires that “but for” the antecedent
               conduct, the result would not have occurred. If there is more
               than one cause which precipitates the result, the defendant’s
               action is the cause-in-fact if it is a “substantial factor” in bringing
               about that result.


               Legal or proximate cause is a distinct concept, speaking not to
               the physical relationship between the actor’s conduct and the
               result, but instead embodying a value judgment as to the extent
               of the physical consequences of an action for which the actor
               should be held responsible. Thus, proximate cause questions are
               often couched in terms of “foreseeability”; an actor is not held
               responsible for consequences which are unforeseeable. In
               Indiana, a result is deemed foreseeable if it is a “natural and
               probable consequence” of the act of the defendant.


               In cases where an action of the victim . . . affects the chain of
               causation, foreseeability is again a factor. Such an occurrence is
               called an “intervening cause”, and it becomes a superseding
               cause breaking the chain of causation if it was not foreseeable. If
               an intervening and superseding cause aided in bringing about the
               result, the defendant is not criminally liable.


       Bowman v. State, 564 N.E.2d 309, 313 (Ind. Ct. App. 1990), summarily aff’d in

       relevant part, 577 N.E.2d 569 (1991) (internal citations omitted).

       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020             Page 8 of 12
[13]   The crux of Cannon’s argument is that in 2017, over thirty years after Indiana

       enacted its mandatory seatbelt law, it was not foreseeable that the teenagers

       would fail to wear their seatbelts. See Hopper v. Carey, 716 N.E.2d 566, 574 (Ind.

       Ct. App. 1999), trans. denied; see also P.L. 122-1985.2 Specifically, he contends,

       “In light of the habit of nearly one hundred percent of Hoosiers to wear a

       seatbelt in 2017, that these teenagers would not be wearing seatbelts was not

       foreseeable and constituted an intervening cause such that it would be unfair to

       hold [him] responsible for their decision not to do so.” Br. of Appellant at 16-

       17. Cannon asserts that although this may have been foreseeable many years

       ago when the seatbelt law was new, it was not foreseeable in 2017. See id.

       Cannon’s argument fails for two reasons.


[14]   First, this court has already decided this very question against Cannon’s

       position. Several years after the enactment of the mandatory seatbelt law, a

       panel of this court addressed this issue and held that “it is clearly foreseeable

       that an automobile passenger might fail to wear a seatbelt” and therefore,

       failure to do so was not an intervening cause of a passenger/decedent’s injuries

       breaking the chain of causation. Bowman, 564 N.E.2d at 313. Five years later,

       this court reaffirmed this principle in Green v. State, a case in which the




       2
        “In 1985, the Indiana General Assembly added a new chapter to the Indiana Code mandating that drivers
       and passengers in motor vehicles wear seat belts in certain circumstances. P.L. 122-1985, § 1, now codified
       at Ind. Code § 9-19-10-2.” Baldwin v. Reagan, 715 N.E.2d 332, 334 (Ind. 1999). Indiana Code section 9-19-
       10-2 now provides, “Each occupant of a motor vehicle equipped with a safety belt . . . shall have a safety belt
       properly fastened about the occupant’s body at all times when the vehicle is in forward motion.” Prior to
       1991, this provision was codified at Indiana Code section 9-8-14-1. Baldwin, 715 N.E.2d at 334 n.1.

       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020                                  Page 9 of 12
       defendant was convicted of two counts of reckless homicide after he consumed

       alcohol, drove his vehicle at 100 mph, and crashed – killing two of his

       passengers. 650 N.E.2d 307, 309 (Ind. Ct. App. 1995). The defendant

       appealed and argued that the victims’ failure to wear their seatbelts was an

       intervening cause because they would have survived the accident had they been

       wearing their seatbelts. Id. at 309. Once again, we held that the passengers’

       failure to wear seatbelts was clearly foreseeable and thus, not an intervening

       cause of the passengers’ deaths. Id. at 310.


[15]   We acknowledge that these cases were decided closer in time to the mandatory

       seatbelt law’s enactment. Nevertheless, these cases were all decided while

       Indiana’s seatbelt requirement was in effect. Although Cannon asks us to

       revisit our jurisprudence in this particular arena in light of the alleged increased

       compliance with the seatbelt law and changing habits, we decline to do so. We

       conclude that under these facts, it was foreseeable that some or all of the

       teenagers might fail to wear their seatbelts in 2017 and therefore, the failure to

       wear a seatbelt is not an intervening cause relieving Cannon of criminal

       liability. See Warner v. State, 577 N.E.2d 267, 270 (Ind. Ct. App. 1991) (citing

       Bowman in concluding that a decedent’s failure to wear her seatbelt was not an

       intervening cause and thus, there was sufficient evidence that the defendant’s

       reckless driving was the direct and probable cause of the decedent’s death).

       Similarly, given that this was a high-speed chase in which both parties were

       driving erratically on a heavily congested interstate, we are also unpersuaded




       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020         Page 10 of 12
       that the teenagers’ decision to re-enter the interstate from the exit ramp

       constitutes an intervening cause. See Br. of Appellant at 17-19.


[16]   Second, Cannon asserts that “[h]ad all five of the teenagers been wearing their

       seatbelts, they likely would have suffered relatively minor injuries.” Br. of

       Appellant at 17. Assuming arguendo that failure to wear a seatbelt constitutes

       an intervening cause, the undisputed fact that Olivia was wearing her seatbelt

       during the accident and still suffered serious bodily injury completely undercuts

       Cannon’s argument to this point. See Exhibits, Vol. 1 at 38-39 (the State and

       Cannon agreed that Olivia’s injuries amounted to serious bodily injury).

       Despite Helms’ testimony that the teenagers’ injuries would have been less severe

       than the injuries they suffered had they been wearing their seatbelts, because

       Olivia wore her seatbelt and suffered serious bodily injury, Cannon cannot

       prove that Michael or Kris would not have suffered serious bodily injury.

       Indeed, their injuries may have been less severe than the injuries they did incur,

       but it is likely they would still have suffered serious bodily injury even with a

       seatbelt as illustrated by Olivia’s injuries. Therefore, Cannon’s argument fails.


[17]   In sum, because Cannon’s aggressive driving, that resulted in the death and

       serious bodily injury of other persons, was the proximate cause of the deaths

       and injuries and the teenagers’ failure to wear their seatbelts is not an

       intervening cause breaking the chain of causation, we conclude the evidence is

       sufficient to support his convictions.




       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020           Page 11 of 12
                                               Conclusion
[18]   We conclude there was sufficient evidence in the record to support Cannon’s

       convictions. Accordingly, we affirm.


[19]   Affirmed.


       Bradford, C.J., and Altice, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-1036 | March 9, 2020   Page 12 of 12
