MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                             FILED
court except for the purpose of establishing                     Jan 31 2017, 9:05 am

the defense of res judicata, collateral                               CLERK
estoppel, or the law of the case.                                 Indiana Supreme Court
                                                                     Court of Appeals
                                                                       and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt A. Young                                            Curtis T. Hill, Jr.
Nashville, Indiana                                       Attorney General of Indiana
                                                         Lyubov Gore
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Darrell Smith,                                           January 31, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A02-1606-CR-1392
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Angela Dow-
Appellee-Plaintiff                                       Davis, Judge
                                                         Trial Court Cause No.
                                                         49G16-1509-F5-32055



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1392 | January 31, 2017   Page 1 of 6
[1]   Darrell Smith appeals his conviction for Level 5 Felony Criminal Recklessness, 1

      arguing that the evidence is insufficient to support the conviction. Finding the

      evidence sufficient, we affirm.


                                                     Facts
[2]   In September 2015, Smith and Rebecca West had been living together for

      twenty years. Their Indianapolis home has a swing on the front porch and

      four-foot-tall shrubs lining the front and side of the porch. The swing was

      approximately three to four feet away from the shrubs at the front of the porch.


[3]   On the evening of September 4, 2015, Smith, West, and two of their friends

      were gathered on the front porch. Smith had been drinking alcohol steadily for

      much of the evening. At some point, West went inside the house, and Smith

      followed her inside approximately ten minutes later. Smith, angry, asked West

      why she had not put the laundry in the truck. The two argued, with West

      eventually telling Smith that he could “get someone else to take him to the

      laundromat.” Tr. p. 6.


[4]   West then went outside and sat on the porch swing. 2 Ten minutes later, Smith

      came to the front doorway, standing partly inside and partly on the porch,

      about five feet from where West was sitting. He did not say anything to West.

      Smith produced a handgun and fired it at the shrub in front of the porch swing.



      1
          Ind. Code § 35-42-2-2.
      2
          At some point, their friends had left.


      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1392 | January 31, 2017   Page 2 of 6
      The gun made a loud sound and hurt West’s ears “really bad.” Id. at 14. Smith

      then went back inside the house, gathered his clothing, and went to the

      laundromat. West called the police and consented to a search of the residence;

      police eventually found the handgun inside a potato bin in the bottom drawer of

      a kitchen cabinet.


[5]   On September 9, 2015, the State charged Smith with Level 5 felony criminal

      recklessness and Level 6 felony pointing a firearm. Smith’s bench trial took

      place on March 16, 2016. The State dismissed the pointing a firearm charge

      and the trial court found Smith guilty of Level 5 felony criminal recklessness.

      On June 1, 2016, the trial court sentenced Smith to 1095 days, with 1027 days

      suspended and 365 days of probation. Smith now appeals.


                                   Discussion and Decision
[6]   Smith’s sole argument on appeal is that the evidence is insufficient to support

      the conviction. When reviewing a claim of insufficient evidence, we will

      consider only the evidence and reasonable inferences that support the

      conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if,

      based on the evidence and inferences, a reasonable jury could have found the

      defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003,

      1005 (Ind. 2009).


[7]   To convict Smith of Level 5 felony criminal recklessness, the State was required

      to prove beyond a reasonable doubt that he recklessly, knowingly, or

      intentionally performed an act that created a substantial risk of bodily injury to

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1392 | January 31, 2017   Page 3 of 6
      another person by shooting a firearm into a place where people are likely to

      gather. I.C. § 35-42-2-2. Smith argues that the State failed to prove that his act

      created a substantial risk of bodily injury to another person or that he shot a

      firearm into a place where people are likely to gather.


[8]   As for whether Smith’s action created a substantial risk of bodily injury to

      another person, we must look to the proximity and presence of individuals that

      might have been harmed by the defendant’s conduct to determine whether a

      substantial risk existed. Smith v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App.

      1997) (finding evidence sufficient to support criminal recklessness conviction

      where defendant fired a gun six times in his back yard, shooting at an old car

      that was within fifty yards of other homes). The State need not prove that the

      defendant was aiming at a specific person because it is common knowledge that

      bullets do not always go exactly where the shooter intended and can change

      trajectory by ricocheting off of other objects. See, e.g., Upp v. State, 473 N.E.2d

      1030, 1031 (Ind. Ct. App. 1985) (finding substantial risk of bodily injury existed

      where the defendant fired multiple times at the ground in front of the victim’s

      feet because “had Upp missed his aim or had a bullet struck a stone and

      ricocheted, there was a substantial risk that [the victim] would have been hit”).


[9]   Here, the record reveals that Smith, who had been steadily consuming alcohol

      during the evening, was standing approximately five feet from where West was

      sitting and fired a handgun at a shrub that was only three to four feet away from

      her. West could have easily been hit by the bullet if she had stood up from the

      swing at the time Smith fired the weapon or if Smith’s aim was inaccurate;

      Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1392 | January 31, 2017   Page 4 of 6
       moreover, the bullet could have ricocheted off of something on the porch or

       near the shrub and hit West. We find that a reasonable factfinder could have

       concluded based on this evidence that Smith’s location and proximity to West

       during the discharge of the weapon created a substantial risk of bodily injury to

       West.


[10]   Smith also contends that the evidence does not support a conclusion that he

       shot a firearm into a place where people are likely to gather. He focuses on the

       word “into,” for although he admits firing the weapon while standing on his

       front porch, he insists that the fact that he fired at the shrub in front of the porch

       rather than into the porch itself means that the conviction cannot stand. We

       disagree. The record reveals that Smith was standing partially on the porch and

       partially inside the house when he fired at the shrub at the front of the porch.

       This location necessarily means that Smith shot “into” the porch—the bullet

       had to have followed a trajectory across the porch to have reached a point in

       front of it.


[11]   Smith directs our attention to multiple cases, but we find them readily

       distinguishable. Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind. Ct. App. 1995)

       (evidence insufficient where defendant fired gun across a vacant lot); Elliott v.

       State, 560 N.E.2d 1266, 1267 (Ind. Ct. App. 1990) (evidence insufficient where

       defendant fired pistol towards uninhabited fields and woodlands). Here, in

       contrast to either of those cases, Smith shot the handgun while standing at the

       back of an occupied front porch of an Indianapolis home in a residential

       neighborhood. A reasonable factfinder could have concluded based on this

       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1392 | January 31, 2017   Page 5 of 6
       evidence that Smith shot a firearm into a place where people are likely to

       gather. We find the evidence sufficient to support the conviction.


[12]   The judgment of the trial court is affirmed.


       Mathias, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A02-1606-CR-1392 | January 31, 2017   Page 6 of 6
