MEMORANDUM DECISION
                                                                 Jun 16 2015, 8:37 am
Pursuant to Ind. Appellate Rule 65(D), 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
Deborah Markisohn                                         Gregory F. Zoeller
Marion County Public Defender Agency                      Attorney General of Indiana
Indianapolis, Indiana
                                                          Christina D. Pace
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Justin McIntosh,                                         June 16, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1410-CR-459
        v.                                               Appeal from the Marion Superior
                                                         Court Criminal Division 15

State of Indiana,                                        The Honorable John Chavis, Judge
Appellee-Plaintiff
                                                         Cause No. 49F15-1401-FD-4104




Friedlander, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015     Page 1 of 5
[1]   Justin McIntosh was convicted of Pointing a Firearm and Criminal

      Recklessness,1 both class D felonies. On appeal, McIntosh challenges his

      conviction for criminal recklessness,2 presenting one issue for our review: did

      the State present sufficient evidence to support his conviction for criminal

      recklessness?


[2]   We affirm.

[3]   The facts favorable to the conviction are as follows. On December 25, 2012,

      Jonathon Harden and his girlfriend Jamie Walker arrived at their apartment

      complex around 11:00 p.m. As they pulled into the complex, McIntosh was

      driving directly in front of them. McIntosh came to a complete stop after

      driving over the last speed bump. Harden waited about twenty seconds before

      he drove around McIntosh and proceeded to his apartment building. As

      Harden and Walker were gathering their belongings, McIntosh drove up behind

      Harden’s car “almost immediately” and squealed his tires. Transcript at 537.

      After parking next to Harden’s car, McIntosh exited his car and stood two feet

      away from Harden, who had also exited his car. Both men engaged in a verbal




      1
        Ind. Code Ann § 35-42-2-2(a),(b) (1) (A) (West, Westlaw 2012). Effective July 1, 2014 this offense has been
      reclassified as a Level 6 felony. Ind. Code Ann. § 35-42-2-2(a), (b) (1) (A). (West, Westlaw current with P.L.
      1-2015 to P.L. 87-2015 of the 2015 First Regular Session of the 119th General Assembly, with effective dates
      through April 29, 2015). Because McIntosh committed this offense prior to that date, it retains its prior
      classification as a class B felony.
      2
          On appeal, McIntosh does not challenge his conviction of Pointing a Firearm, a class D felony.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015                  Page 2 of 5
      altercation for one to three minutes. McIntosh placed his fast-food bag on the

      ground, reached into his coat pocket, pulled out a gun, and pointed it at

      Harden’s chest. Harden raised his hands up to his chest and said, “Don’t

      shoot.” Id. at 227. Harden then backed away from the gun and turned away

      from McIntosh. Walker, who was seated in the car, watched McIntosh pick up

      his fast-food bag, walk toward the apartment building, fire his gun straight into

      the air, and enter into the apartment building. Harden was in the process of

      dialing 911 when he heard the “pop” of the gun. Id. at 229.


[4]   On February 3, 2014, the State charged McIntosh with, pointing a firearm

      (count I), and criminal recklessness (count II), both class D felonies. Count II

      was later amended to change the language of the charge from “inflicted serious

      bodily injury” to “created a substantial risk of bodily injury.” Appellant’s

      Appendix at 47, 50. Following a jury trial, McIntosh was convicted as charged.


[5]   On appeal, McIntosh contends there is insufficient evidence to support his

      conviction for criminal recklessness. McIntosh argues that the State presented

      evidence only of a potential risk, rather than an actual, substantial risk of injury.


[6]   When reviewing the sufficiency of the evidence needed to support a criminal

      conviction, we neither reweigh evidence nor judge witness credibility. Henley v.

      State, 881 N.E.2d 639 (Ind. 2008). “We consider only the evidence supporting

      the judgment and any reasonable inferences that can be drawn from such

      evidence.” Id. “(This court) will affirm unless no reasonable fact-finder could




      Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015   Page 3 of 5
      have found the crime proven beyond a reasonable doubt.” Dumes v. State, 23

      N.E.3d 798, 801 (Ind. Ct. App. 2014).

[7]   To convict McIntosh of criminal recklessness as charged, the State was required

      to prove that: (1) McIntosh, (2) recklessly, knowingly, or intentionally, (3)

      performed an act, (4) that created a substantial risk of personal injury to another

      person, (5) while armed with a deadly weapon. I.C. § 35-42-2-2 (a), (b) (1) (A).

      McIntosh challenges the element that he created a substantial risk of personal

      injury. What constitutes a “substantial” risk is not defined in I.C. § 35-42-2-2.

      Consequently, we construe the word in its plain, ordinary, and usual sense.

      Young v. Hood's Gardens, Inc., 24 N.E.3d 421 (Ind. 2015). A substantial risk is a

      risk that has “substance or actual existence” rather than mere speculation. Smith

      v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App. 1997).


[8]   McIntosh argues the State did not provide enough evidence to prove he created

      a substantial risk of injury, and for that reason there is insufficient evidence to

      sustain the criminal recklessness conviction. McIntosh directs us to Elliot v.

      State, 560 N.E.2d 1266 (Ind. Ct. App. 1990), where this court reversed the

      conviction of criminal recklessness when the defendant fired shots into a

      neighboring woodland that was also a common hunting area. This court held

      that Elliot’s conduct did not create a substantial risk of bodily injury to another

      person because “there were no people in or near his line of fire.” Id. at 1267.


[9]   In contrast, McIntosh did not fire in an abandoned area; he fired his gun in a

      residential area. McIntosh disregarded the risk of injuring Harden, who was in


      Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015   Page 4 of 5
the parking lot, Walker, who was inside a parked vehicle, and the residents of

International Village Apartments. To sustain his conviction, the State was

required to show that McIntosh’s acts created a substantial or actual risk of

injury, rather than a speculative risk. Smith v. State, 688 N.E.2d 1289. Actual

existence of a risk of injury was proven where the evidence showed that

McIntosh purposefully fired one shot in the air while in a residential area,

knowing that there was a risk of injury. The State presented sufficient evidence

from which the jury could infer that McIntosh created a substantial risk of

injury to Harden, Walker, and the residents of International Village.

Baker, J., and Najam, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015   Page 5 of 5
