MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
                                                                              FILED
regarded as precedent or cited before any
court except for the purpose of establishing                           May 02 2019, 9:08 am

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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Leanna K. Weissmann                                      Curtis T. Hill, Jr.
Lawrenceburg, Indiana                                    Attorney General of Indiana
                                                         Laura R. Anderson
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Matthew William Joseph,                                  May 2, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2896
        v.                                               Appeal from the Decatur Circuit
                                                         Court
State of Indiana,                                        The Honorable Timothy B. Day,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         16C01-1608-F5-659



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019                     Page 1 of 7
                                            Case Summary
[1]   Matthew William Joseph (“Joseph”) appeals his conviction for Criminal

      Recklessness, as a Level 6 felony.1 He presents the sole issue of whether the

      evidence is sufficient to support his conviction. We affirm.



                                Facts and Procedural History
[2]   On March 7, 2016, Joseph removed his 9 millimeter Citadel 1911 handgun

      from his gun safe, with the intention of cleaning it and offering it for sale. He

      removed the magazine and pointed the handgun away from a child that was

      present. Joseph unsuccessfully attempted to remove a bushing at the tip of the

      barrel; he then pulled the slide back attempting to dislodge the bushing. The

      handgun, which was pointed at a common wall between Joseph’s bedroom and

      a neighbor’s apartment, discharged. The bullet struck Joseph’s neighbor in the

      abdomen. Joseph’s hand was burned as the handgun exploded.


[3]   On July 30, 2018, Joseph was tried in a bench trial upon the charge of Criminal

      Recklessness, as a Level 6 felony, and he was found guilty as charged. On

      November 19, 2018, the trial court sentenced Joseph to 540 days imprisonment,

      with 180 days to be executed and the balance suspended to supervised

      probation. Joseph now appeals.




      1
          Ind. Code § 35-42-2-2(b)(1)(a).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019   Page 2 of 7
                                Discussion and Decision
[4]   Joseph contends the evidence is insufficient to support his conviction. More

      specifically, he claims that he did not act recklessly; rather, the shooting was a

      tragic accident.


[5]   When reviewing the evidence in support of a conviction, we consider only the

      probative evidence and reasonable inferences most favorable to the trial court’s

      judgment. Binkley v. State, 654 N.E.2d 736, 737 (Ind. 2007). The decision

      comes before us with a presumption of legitimacy, and we do not substitute our

      judgment for that of the fact-finder. Id. We do not assess the credibility of the

      witnesses and we do not reweigh the evidence. Drane v. State, 867 N.E.2d 144,

      146 (Ind. 2007). Reversal is appropriate only when no reasonable fact-finder

      could find the elements of the crime proven beyond a reasonable doubt. Id.


[6]   The State alleged that Joseph committed Criminal Recklessness, and that the

      offense was elevated to a Level 6 felony because he was armed with a deadly

      weapon. “A person who recklessly, knowingly, or intentionally performs an act

      that creates a substantial risk of bodily injury to another person commits

      criminal recklessness.” I.C. § 35-42-2-2(a). 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. I.C. § 35-41-2-2(c). Joseph

      points out that, in the context of reckless homicide by a vehicle driver, our

      Indiana Supreme Court has recognized that recklessness is something more


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019   Page 3 of 7
      than “inadvertence, lack of attention, forgetfulness or thoughtlessness … or

      from an error of judgment.” State v. Boadi, 905 N.E.2d 1069, 1071 (Ind. Ct.

      App. 2009) (citing Beeman v. State, 232 Ind. 683, 115 N.E.2d 919, 922 (1953)).


[7]   The evidence and reasonable inferences to be drawn therefrom most favorable

      to the judgment are as follows. Joseph was not driving a vehicle, where he

      might be called upon to make rapid decisions; rather, he was engaged in a

      handgun cleaning process. He had knowledge that he was in proximity to a

      child and in likely proximity to other residents of the apartment complex.

      Joseph had determined that his handgun was defective, in that it did not

      reliably eject shells after firing. He had chosen to sell it for this reason.

      According to the State’s firearms examiner, the weapon was otherwise

      functioning; more specifically, the thumb safety mechanism was not defective.

      There was testimony that a proper sequence for firearm handling would have

      involved engaging the safety, pointing in a safe direction, removing the

      magazine, racking the slide at least once, locking the slide back, and visually or

      physically (as with a rod or reflective material) inspecting the chamber. The

      State also presented testimony that Joseph’s handgun would not have fired

      without a finger on the trigger.


[8]   Joseph elected not to engage the thumb safety mechanism of his handgun or

      ascertain that the handgun was unloaded prior to pointing the weapon and

      moving the slide. After receiving information in hunting class that mechanical

      mechanisms could sometimes fail, Joseph had made a conscious decision not to

      rely upon using the thumb safety mechanism of his handgun. Instead, he relied

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019     Page 4 of 7
      upon his belief that he had acted in accordance with his habit of unloading a

      handgun and then locking it in the safe. Despite the lack of precautions, he

      tried to dislodge a bushing on the handgun although other persons were nearby.

      There is sufficient evidence from which the fact-finder could conclude that

      Joseph engaged in conduct in plain, conscious, and unjustifiable disregard of

      harm that might result and the disregard involved a substantial deviation from

      acceptable standards of conduct.


[9]   Affirmed.


      Riley, J., concurs.
      Pyle, J., dissents with opinion.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019   Page 5 of 7
                                                 IN THE
           COURT OF APPEALS OF INDIANA

       Matthew William Joseph,                                  Court of Appeals Case No.
                                                                18A-CR-2896
       Appellant-Defendant,

               v.

       State of Indiana,
       Appellee-Plaintiff.




       Pyle, Judge, dissenting.


[10]   I respectfully dissent from my colleagues’ opinion finding that there is sufficient

       evidence to support Joseph’s conviction for criminal recklessness. In order to

       support a conviction, the State is required to prove that a defendant not only

       committed an act (actus reus) constituting the crime, but that the defendant

       intended (mens rea) to do so. Metzler v. State, 540 N.E.2d 606 (Ind. 1989). It is

       also well settled that “a crime is not committed if the mind of the person doing

       the act is innocent, . . . .” Roark v. State, 130 N.E.2d 326 (Ind. 1955). In

       addition, negligence is not a crime in Indiana. Moore v. State, 845 N.E.2d 225

       (Ind. Ct. App. 2006), trans. denied.


[11]   The facts of this case, as outlined by my colleagues, show that Joseph may have

       disregarded the proper procedures for unloading, clearing, and disassembling a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019          Page 6 of 7
firearm. However, the record falls short of proving beyond a reasonable doubt

that this conduct was “reckless.” As a result, there is insufficient proof that he

engaged in “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) (emphasis added). While a

serious injury did occur, that cannot be the sole basis for deciding whether to

file criminal charges. To hold otherwise would mean that every Hoosier who

improperly unloads a firearm which then results in a negligent discharge, is

subject to felony criminal liability. I do not believe this to be so. There may

indeed be cases that support such a charge, but, in this case, the remedy is

found in our civil law.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2896 | May 2, 2019   Page 7 of 7
