                                                                               FILED
                                                                          Nov 17 2016, 8:31 am

                                                                               CLERK
                                                                           Indiana Supreme Court
                                                                              Court of Appeals
                                                                                and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Thomas P. Keller                                          Gregory F. Zoeller
      South Bend, Indiana                                       Attorney General of Indiana
                                                                Christina D. Pace
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Gabriel G. Williams,                                     November 17, 2016

      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               71A03-1604-CR-975
              v.                                               Appeal from the St. Joseph Superior
                                                               Court.
                                                               The Honorable Jane Woodward
      State of Indiana,                                        Miller, Judge.
      Appellee-Plaintiff.                                      Cause No. 71D01-1508-F5-165




      Sharpnack, Senior Judge


                                      Statement of the Case
[1]   After a bifurcated jury trial, the trial court entered judgment of conviction

      against Gabriel G. Williams on one count of Level 5 felony criminal




      Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016                  Page 1 of 10
                         1
      recklessness, and one count of Level 5 felony carrying a handgun without a
                  2
      license. On appeal, Williams challenges the sufficiency of the evidence

      supporting his conviction for criminal recklessness. We affirm.


                                                         Issue
[2]   The sole issue presented in this appeal is whether the evidence is sufficient to
                                                                                                         3
      support Williams’s conviction for Level 5 felony criminal recklessness.


                                   Facts and Procedural History
[3]   On October 9, 2014, at around 3:00 a.m., Williams and a woman, later

      identified as Judy VanHouten, were sitting in a vehicle parked in the back yard

      of a residence at 417 North Walnut Street in South Bend. While seated in the

      vehicle, Williams fired his Smith and Wesson Bodyguard .380 caliber semi-

      automatic handgun. The bullet went into and through the vinyl siding on the

      corner of the house, ricocheted after exiting the first house, then lodged in the




      1
          Ind. Code § 35-42-2-2(b)(2)(A) (2014).
      2
          Ind. Code § 35-47-2-1 (2014).
      3
        The State argues that this issue is waived because Williams did not make the argument to the trial court. As
      we consider Williams’s claim to be that the evidence is insufficient to support the conviction, we find no
      waiver, because a claim of insufficiency of the evidence can be made for the first time on appeal. See e.g., Ind.
      Trial Rule 50(A)(5) (criminal defendant may challenge sufficiency of evidence at trial, in a motion to correct
      error, or for the first time on appeal); Dishmon v. State, 770 N.E.2d 855, 857 (Ind. Ct. App. 2002) (sufficiency
      of evidence may be raised in a direct criminal appeal even though no objection made to trial court), trans.
      denied; Harrison v. State, 469 N.E.2d 22, 24 (Ind. Ct. App. 1984) (criminal defendant may raise sufficiency
      issue for first time on appeal).



      Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016                         Page 2 of 10
      vinyl siding of the second story of another residence across the street, located at

      426 North Walnut Street.


[4]   The South Bend Police Department uses a system called ShotSpotter.

      ShotSpotter is an acoustic gunshot detection and location system that uses

      sensors in a specific geographic area to listen for the sound of gunfire. The

      system detects and records the sound of gunfire, then calculates and locates the

      place where the gunfire occurred, and then reports that location to law

      enforcement. South Bend Police Department officers were dispatched to the

      area of 417 North Walnut Street as a result of a ShotSpotter alert on October 9,

      2014. Officers Jonathon Gray and Andrew Witt responded to the alert, and

      upon arrival walked to the back of the 417 North Walnut Street residence.

      There they observed a white Chevrolet Camaro sitting less than ten feet from

      the back of the residence.


[5]   Officer Witt shined his flashlight at the Camaro. Both officers observed two

      individuals in the Camaro; a male driver, later identified as Williams, and a

      female passenger, VanHouten. Shortly after Officer Witt shined his flashlight

      into the car, Williams jumped out of the vehicle and refused to obey commands

      to stop and show his hands. Instead, Williams started backing toward the rear

      of the vehicle. Williams was detained for his failure to follow the officers’

      commands.


[6]   After Officer Gray explained to Williams that he and Officer Witt had been

      dispatched to the scene on a report of shots fired, Williams told the officers that


      Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 3 of 10
      there was a gun located under the driver’s seat of the vehicle. Officer Witt

      found the gun, the butt of which protruded from under the seat. The gun was

      loaded with one round in the firing chamber. The gun was secured by the

      officers. In addition to the gun, marijuana was found in a clear plastic bag in

      the center console of the car.


[7]   After he was advised of his Miranda rights, Williams first told officers that he,

      VanHouten, and a male Williams claimed to know only as “T,” had been

      inside his car, drinking and smoking marijuana. He claimed that they saw a

      raccoon on a trash can and that “T” used the gun he had in his possession to

      fire at the raccoon in order to scare it away. According to Williams, “T” left

      before the officers arrived.


[8]   After Officer Gray arrested and interviewed Williams, he followed the

      trajectory of the bullet. Upon doing so, he discovered the bullet lodged in the

      siding of the second story of the house located at 426 North Walnut Street.

      Officer Gray knocked on the door of the house to verify that no one was

      injured. Beatrice Haynes, who answered the door, said that she and her five

      children were home that night. The bullet’s location was in the siding of the

      room where Hayne’s ten-year-old daughter was sleeping. The officer took

      photographs and removed the bullet. Officer Witt knocked on the door of the

      house located at 417 North Walnut Street. He learned that an older adult and

      children were living there.




      Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 4 of 10
[9]    Agent Bayne Bennett with the Bureau of Alcohol, Tobacco, Firearms and

       Explosives Task Force later interviewed Williams at the St. Joseph County Jail.

       Williams admitted to Agent Bennett that the .380 caliber handgun found in the

       vehicle belonged to him and that he was the one who shot the gun at a raccoon.

       During this interview, Williams made no mention of a person named “T.”

       Testing revealed that the .380 caliber handgun found in the Camaro was the

       gun that fired the bullet recovered from the house located at 426 North Walnut

       Street.


[10]   On August 19, 2015, the State charged Williams with one count of Level 5

       felony criminal recklessness, one count of Class A misdemeanor carrying a

       handgun without a license, one count of Class B misdemeanor possession of

       marijuana, and one count of Level 5 felony carrying a handgun without a

       license while having a prior felony conviction within fifteen years. The jury

       returned guilty verdicts only as to criminal recklessness and carrying a handgun

       without a license. During the second phase of Williams’s trial, the jury

       returned a guilty verdict for carrying a handgun without a license while having

       a prior felony conviction within fifteen years. On April 14, 2016, the trial court

       entered judgment of conviction on one count of Level 5 felony criminal

       recklessness and one count of Level 5 felony carrying a handgun without a

       license with a prior conviction. Williams received an aggregate sentence of five

       years with three years to be served on probation. As a condition of his

       probation, Williams was required to serve fifteen weekends in the St. Joseph

       County Jail. Williams now appeals.


       Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 5 of 10
                                     Discussion and Decision
[11]   Williams argues that there is insufficient evidence to sustain his conviction of

       criminal recklessness as a Level 5 felony because there is no evidence that he

       shot into a dwelling. He argues that his conduct does not fall within the

       purview of the statute because he did not fire “into” a dwelling, as the bullet

       lodged in the siding of the second house.


[12]   Because we are called upon to interpret the criminal recklessness statute, our

       standard of review is de novo. Day v. State, 57 N.E.3d 809, 811 (Ind. 2016).

       Our next task is to determine whether sufficient evidence supports the

       conviction under the statute as interpreted. Id. We consider only the probative

       evidence and reasonable inferences supporting the verdict, without reweighing

       evidence or reassessing witness credibility. Id. We will affirm the jury’s verdict

       unless no reasonable factfinder could conclude the State proved the defendant’s

       guilt beyond a reasonable doubt. Id.


[13]   The statute defining the offense of criminal recklessness as charged reads as

       follows:

               (a) A person who recklessly . . . performs an act that creates a
               substantial risk of bodily injury to another person commits
               criminal recklessness. Except as provided in subsection (b),
               criminal recklessness is a Class B misdemeanor.
               (b) The offense of criminal recklessness as defined in subsection
               (a) is:
               ....
               (2) a Level 5 felony if:

       Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 6 of 10
               (A) it is committed by shooting a firearm into an inhabited
               dwelling or other building or place where people are likely to
               gather; . . . .
       Ind. Code § 35-42-2-2(b)(2)(A).


[14]   In order to prove beyond a reasonable doubt that Williams committed criminal

       recklessness as a Level 5 felony as charged, the State was required to establish

       that Williams did recklessly perform an act that created a substantial risk of

       bodily injury to another person by shooting a firearm into an inhabited

       dwelling. Ind. Code § 35-42-2-2-(b)(2)(A); Appellant’s App. p. 167.


[15]   By statute, a person engages in conduct “recklessly” if he or she 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 (1977). In Humes v. State, 426

       N.E.2d 379, 383 (Ind. 1981), our Supreme Court held that the legislature

       “clearly intended the offense of recklessness to be a general intent crime

       wherein a specific mens rea is not a crucial element.” The Court stated the

       following with respect to reckless homicide:


               But while the intention to do or omit the act resulting in injury to
               another is a necessary ingredient of reckless homicide, willfulness
               in the sense of a design, purpose, or intent to inflict an injury is
               not a necessary element of the offense. In other words, to be
               guilty of a reckless disregard for the safety of others, it is not
               necessary that one intend the harm which results from it.
       Id. (quoting Beeman v. State, 232 Ind. 683, 692, 115 N.E.2d 919, 923 (1953)).




       Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 7 of 10
[16]   Clearly, firing a pistol at a raccoon, a garbage can, or a house in a residential

       area is reckless behavior. The challenge here is to determine what constitutes

       “into” for purposes of the criminal recklessness statute.


[17]   Upon appellate review, the primary purpose of statutory interpretation is to

       ascertain and give effect to the legislature’s intent. Nicoson v. State, 938 N.E.2d

       660, 663 (Ind. 2010). “The statute itself is the best evidence of this intent.” Id.

       Courts on review will presume that the legislature intended for the statutory

       language to be applied in a logical manner consistent with the statute’s

       underlying policy and goals. Id. To that end, we give effect to the plain and

       ordinary meaning of statutory terms. Suggs v. State, 51 N.E.3d 1190, 1193 (Ind.

       2016). “If a statute is unambiguous, that is susceptible to but one meaning, we

       must give the statute its clear and plain meaning.” Id. at 1193-94 (quoting State

       v. Evans, 810 N.E.2d 335, 337 (Ind. 2004)).


[18]   Williams argues that this court should adopt one of the definitions of “into” as

       expressed by Merriam Webster—“used as a function word to indicate entry,

       introduction, insertion, superposition, or inclusion”—to find that his conviction

       should be reversed. See http://www.merriam-webster.com/dictionary/into.

       Utilizing that definition, Williams contends that to be guilty of the offense, the

       bullet must have entered into the living area of the house, not merely strike the

       inhabited building. Appellant’s Br. p. 10-11. We believe this construction of

       the statute is too narrow.




       Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 8 of 10
[19]   Indiana Code section 35-31.5-2-107 (2012) defines a dwelling as “a building,

       structure, or other enclosed space, permanent or temporary, movable or fixed,

       that is a person’s home or place of lodging.” In this case, the siding of the

       house delineates the boundary of the dwelling, building, or enclosed space. An

       object on the outer side of that boundary is outside the dwelling or building,

       while an object that is on the inner side of that boundary is “into” the dwelling

       or building. The extent to which a bullet penetrates the dwelling is a matter of

       degree, but is “into” the dwelling, nonetheless. This plain reading of the statute

       supports obvious policy considerations behind the statute—protecting from the

       risk of injury due to gunfire those who might be present in an inhabited

       dwelling or other building or place where people are likely to gather.


[20]   Applying that interpretation to the facts of this case, the jury correctly found

       there was sufficient evidence to support Williams’s conviction for criminal

       recklessness. Here, the bullet entered the siding of one house, passed through

       the corner exiting that house, ricocheted, and lodged in the siding of the second

       story of another house, such that it had to be removed from the siding. All of

       this occurred in the very early hours of the morning in a residential area. To

       reverse based upon the degree to which the bullet entered the building would be

       to reweigh the evidence, a task that is inappropriate upon appellate review.


                                                 Conclusion
[21]   In light of the foregoing, we affirm Williams’s conviction of criminal

       recklessness as a Level 5 felony.


       Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 9 of 10
[22]   Affirmed.


       May, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 71A03-1604-CR-975 | November 17, 2016   Page 10 of 10
