Leslie Michelle New v. State of Indiana ( 2019 )

FILED
Oct 31 2019, 7:06 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
R. Thomas Lowe Curtis T. Hill, Jr.
Lowe Law Office Attorney General
New Albany, Indiana
Megan M. Smith
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Leslie Michelle New, October 31, 2019
Appellant-Defendant, Court of Appeals Case No.
19A-CR-575
v. Appeal from the Orange Circuit
Court
State of Indiana, The Honorable Steven L. Owen,
Appellee-Plaintiff Judge
Trial Court Cause No.
59C01-1509-F5-854
Crone, Judge.
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Case Summary
[1] Leslie Michelle New appeals her convictions, following a jury trial, for level 5
felony criminal recklessness and class B misdemeanor resisting law
enforcement. She asserts that the trial court abused its discretion in refusing to
give one of her tendered jury instructions, and that her substantial rights were
prejudiced as a result. She also asserts that the State presented insufficient
evidence to support her convictions. We agree with New that the trial court
abused its discretion in instructing the jury and that her substantial rights were
prejudiced as to her criminal recklessness conviction. Accordingly, we reverse
that conviction and remand for a new trial. We find that the State presented
sufficient evidence to support New’s conviction for resisting law enforcement,
so we affirm that conviction.
Facts and Procedural History
[2] In the summer of 2015, New’s five-year-old autistic daughter, M.N., began
residing on a permanent basis with New’s aunt and uncle, Barbara and Joe
New, in their double-wide mobile home located on sixty-one acres of property
in Paoli. Barbara and Joe had been close with M.N. since her birth and were
willing to help New because she “was having a tough time.” Tr. Vol. 3 at 86.
New granted Barbara and Joe a power of attorney so that they could make
decisions on M.N.’s behalf. During that summer, New did not visit her
daughter much. When it was time to enroll M.N. in kindergarten that fall,
New entered into a third-party custody agreement with Barbara and Joe so that
they could enroll M.N. in school.
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[3] On Monday, September 14, 2015, New showed up unannounced to Barbara
and Joe’s house around 3:15 p.m. After New visited with M.N. for
approximately one hour, Barbara informed New that M.N. was scheduled for
her first gymnastics class at 5:00 p.m. Barbara had signed up for the gymnastics
class to help M.N. socialize. The women began arguing after Barbara refused
to tell New the location of the class because Barbara did not want New to come
to the class and “cause problems.” Id. at 103. New grabbed M.N.’s hand, led
her to her vehicle, and placed the child in the front passenger seat. Barbara
followed, asking New what she was doing, and telling her that M.N. had school
the next morning. Barbara attempted to unbuckle the seatbelt and remove
M.N. from the vehicle. Barbara was unable to get M.N. unbuckled and out of
the vehicle, so she told New that she was going to call the police. Barbara
closed the passenger door of the vehicle and walked around the back of the
vehicle while dialing 911. Barbara stood behind the vehicle as Joe came outside
and walked to the driver’s-side door, trying to block New from entering the
vehicle. Joe grabbed New’s car keys out of her hand and yelled to Barbara that
he had the keys. Still standing directly behind the vehicle, Barbara yelled back
that New had another set of keys and that she could see that New was looking
through her purse for the extra set.
[4] New located her extra set of keys, got in the vehicle, locked the door, and
started the engine. New put the vehicle in reverse and backed up, bumping into
Barbara and knocking her to the ground. Barbara screamed, and New then
pulled the vehicle forward, “circled through the yard[,]” and drove away. Id. at
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110. Barbara, who was still on the phone, told the 911 dispatcher that New had
struck her with a vehicle and driven away.
[5] Orange County Sheriff’s Department officers responded to Barbara’s call that
“started out as a domestic issue over a child … and then at some point …
changed and … became a hit and run.” Id. at 240. As Chief Deputy Dennis
Lanham was traveling to the scene, he observed a vehicle matching the
description of New’s vehicle driving in the opposite direction. Deputy Lanham
initiated a traffic stop. When Deputy Lanham approached the vehicle, he
noticed that New was driving the vehicle and that M.N. was in the front
passenger seat. Deputy Lanham thought New behaved oddly because she
“kind of just stared” at him and then asked him for his police credentials even
though he had identified himself, was in full uniform, and was driving a marked
police vehicle. Id. at 244. Deputy Lanham asked New several times to exit the
vehicle so that he could speak to her about the incident with Barbara, but New
just continued to stare at him. Deputy Lanham informed New that he was
going to have to remove her from the vehicle. Once Deputy Lanham opened
the driver’s-side door, New finally complied and stepped out of the vehicle.
[6] Deputy Lanham walked with New to the rear of her vehicle. New began
stating that she could “fix this” and wanted to “go back” to Barbara and Joe’s
house to “straighten this out.” Id. at 248-49. New then turned around and
started walking back toward the driver’s door. Deputy Lanham “got her by the
arm, turned her back around and … started back around the vehicle again.” Id.
at 249. New pulled away from Deputy Lanham and tried to walk back toward
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the driver’s door again. This “occurred three times” before Deputy Lanham
“finally grabbed [New] by both shoulders, held her firmly against the vehicle
and said, [‘]look, this has got to stop. … I can’t have you going back to the
car.[’]” Id. at 249. New seemed to understand and “be okay[,]” but as soon as
Deputy Lanham relaxed his grip, “she attempted to go get in the car” a fourth
time. Id. at 250. Deputy Lanham decided “there was no more talking to her
and convincing her to comply,” so he turned New around to put her in
handcuffs. Id. New, who was “fairly strong[] for a small woman[,]” resisted
and struggled with Deputy Lanham as he attempted to place the handcuffs on
her. Id. Another officer who had arrived at the scene had to help Deputy
Lanham secure New. Deputy Lanham arrested New for resisting law
enforcement, and she was transported to jail.
[7] The State subsequently charged New with level 5 felony battery by means of a
deadly weapon, class B misdemeanor criminal recklessness, and class A
misdemeanor resisting law enforcement. Following a three-day trial, the jury
found New guilty of criminal recklessness and resisting law enforcement, but
not guilty of battery by means of a deadly weapon. The trial court imposed
consecutive sentences of 180 days, with eighty-two days executed and ninety-
eight days suspended, with credit for eighty-two days previously served, on the
criminal recklessness count, and 365 days, fully suspended, on the resisting law
enforcement count. This appeal ensued.
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Discussion and Decision
Section 1 – The trial court abused its discretion in refusing to
give New’s tendered jury instruction regarding negligence.
[8] Because we find it dispositive to our resolution of New’s appeal as it pertains to
her criminal recklessness conviction, we first address her challenge to the trial
court’s instruction of the jury. Specifically, New asserts that the trial court
abused its discretion in refusing to give her proposed instruction regarding the
definition of negligence as it related to the criminal recklessness charge. The
trial court has broad discretion in instructing the jury, and as a result, we review
the trial court’s decision to give or refuse a party’s tendered instruction for an
abuse of discretion. Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012). On
review, we consider “(1) whether the tendered instruction correctly states the
law; (2) whether there was evidence presented at trial to support giving the
instruction; and, (3) whether the substance of the instruction was covered by
other instructions that were given.” Id. at 1230-31 (citation omitted). However,
even if the refusal to give a tendered jury instruction was error, this Court must
assess whether the defendant was prejudiced by the trial court’s failure to give
the instruction. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).
[9] To convict New of class B misdemeanor criminal recklessness, the State was
required to prove beyond a reasonable doubt that New recklessly, knowingly, or
intentionally performed an act that created a substantial risk of bodily injury to
another person. See Ind. Code § 35-42-2-2(a). The State’s theory here was that
New behaved recklessly when she backed her vehicle into Barbara. “A person
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engages in conduct ‘recklessly’ if [s]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.” Ind. Code § 35-41-2-2(c).
[10] Regarding final jury instructions, New requested that, in addition to being
instructed on the definitions of recklessly, knowingly, and intentionally, the jury
be given an instruction defining negligence and distinguishing between
negligence and recklessness. Specifically, New’s counsel proposed that the jury
be given an instruction that:
in addition to defining recklessly it says uh, this requires the State
to prove more than mere negligence on the part of the defendant
because a person may be negligent but not, but may not have
acted recklessly. Negligence is the failure to do what a reasonably
careful and prudent person would do under the same or similar
[c]ircumstances or the doing of something that a reasonably
careful and prudent person would not do under the same or
similar [c]ircumstances. In other words negligence is the failure
to exercise reasonable or ordinary care. If you find that the
defendant only acted negligently but not recklessly you must find
the defendant not guilty.
Tr. Vol. 4 at 65. The trial court denied counsel’s request, concluding that the
pattern jury instructions on the three applicable levels of culpability for criminal
recklessness were sufficient. The court determined that adding an instruction
regarding negligence could confuse the jury because “I don’t want the jury
thinking that there’s a negligence culpability that’s available … either [the State]
met [its] burden [on one of the three applicable levels] or [it] didn’t.” Id. at 66.
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[11] In support of her argument that the trial court’s decision constituted an abuse of
discretion as well as reversible error, New directs our attention to the fact that
in at least two instances, Indiana appellate courts have reversed reckless
homicide convictions based on incidents involving the operation of a motor
vehicle where the trial court failed to give the defendant’s proposed jury
instructions regarding negligence. Cichos v. State, 243 Ind. 187, 184 N.E.2d 1(1962); Sipp v. State, 514 N.E.2d 330 (Ind. Ct. App. 1987).1 In Cichos, the
appellant was charged with reckless homicide and involuntary manslaughter
following an accident in which his vehicle hit another vehicle head-on, resulting
in the death of two occupants in the other vehicle. The trial court refused to
give the appellant’s tendered instructions stating that mere negligence could not
give rise to criminal liability for the crimes of reckless homicide or involuntary
manslaughter. Our supreme court determined that the failure to give the
instructions amounted to reversible error and stated:
Whether the evidence in this case establishes that the deaths
alleged in the indictment occurred from a mere accident, from
negligent conduct or from willful and/or wanton misconduct so
as to amount to recklessness, is dependent on the weight given
the various aspects of the case and the evidence by the jury. The
very purpose of the jury is to determine, after deliberation and
pursuant to the court’s instructions, the legal category into which
the jury feels the defendant’s conduct falls. The appellant’s theory
of the evidence and the law establishing such theory was never
given to the jury in any instructions.
1
We note that although these cases involved convictions for reckless homicide rather than criminal
recklessness, the “reckless” mens rea is the same.
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Cichos, 243 Ind. at 192, 184 N.E.2d at 3.
[12] In Sipp, the defendant, who was operating his vehicle in excess of fifty miles per
hour, sideswiped two cars stopped at a traffic light before hitting a third car that
was also stopped at the traffic light. The driver of the third car died as a result of
the accident. The defendant claimed that he suffered from epileptic seizures and
could not remember the accident. He tendered instructions stating that he could
not be found guilty if he was merely negligent in operating his vehicle or if his
lack of attention or error in judgment caused the collision. Citing Cichos, the
Sipp court agreed that the instructions should have been given to the jury and
reversed the conviction. Sipp, 514 N.E.2d at 332.
[13] More recently, in Springer v. State, 798 N.E.2d 431 (Ind. 2003), our supreme
court noted that, as a general matter, negligence is an argument and not a legal
defense to criminal recklessness. Id. at 435. In other words, a defendant’s
“negligence argument is simply a statement that [the] State failed to prove that
he was reckless,” and so long as the jury is properly instructed on the definition
of the reckless mens rea, no additional instruction is required. Id. However,
the court approved of the rationale in Cichos and Sipp and acknowledged that
such additional instruction regarding negligence may very well be required in
cases where there is a legal question of negligence at stake, such as in those
cases involving “conduct that can be undertaken with due care—the conduct of
driving a motor vehicle.” Id. at 436 (citing Cichos, 243 Ind. at 189-90, 184
N.E.2d at 3; Sipp, 514 N.E.2d at 330).
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[14] We are convinced that this is a case where there is a legal question of
negligence at stake, as New was engaged in conduct that can be undertaken
with due care, namely operating a motor vehicle. The main theory of New’s
defense was that she backed her vehicle into Barbara completely on accident. It
is well settled that “[a] criminal defendant is entitled to have a jury instruction
on ‘any theory or defense which has some foundation in the evidence.’”
Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (quoting Toops v. State, 643
N.E.2d 387, 389 (Ind. Ct. App. 1994)). New’s claim that she was only
negligent was at least a theory, with some foundation in the evidence, that
could have led to her acquittal, and therefore she was entitled to have a jury
instruction explaining that theory. Contrary to the State’s assertion, simply
allowing New’s counsel to argue that what she did was negligent rather than
reckless was an inadequate substitute for an instruction from the trial court
explaining the concept. Understanding the difference between reckless and
negligent conduct is not an easy task, and “even those trained in the legal
profession have grappled with abstract notions regarding degrees of
culpability.” Taylor v. State, 457 N.E.2d 594, 599 (Ind. Ct. App.1983).
[15] Under the circumstances presented, we conclude that New’s proposed
instruction was a correct statement of law, was based upon the evidence, was
not covered by other instructions, and was necessary to enable the jury to fairly
consider New’s theory or defense. As such, New’s substantial rights were
prejudiced by the trial court’s failure to give the instruction. Therefore, we
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reverse New’s criminal recklessness conviction and remand for a new trial as to
that charge.2
Section 2 – The State presented sufficient evidence to support
New’s conviction for resisting law enforcement.
[16] We next address New’s claim that the State presented insufficient evidence to
support her conviction for resisting law enforcement. Sufficiency of the
evidence claims “face a steep standard of review.” Griffith v. State, 59 N.E.3d
947, 958 (Ind. 2016). When reviewing a challenge to the sufficiency of
evidence, we neither reweigh evidence nor judge witness credibility. Moore v.
State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence
and reasonable inferences most favorable to the verdict and will affirm the
conviction unless no reasonable factfinder could find the elements of the crime
proven beyond a reasonable doubt. Id. Reversal is appropriate only when
reasonable persons would be unable to form inferences as to each material
element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.
2006), trans. denied.
[17] To convict New of class A misdemeanor resisting law enforcement, the State
was required to prove beyond a reasonable doubt that Hill knowingly or
intentionally forcibly resisted, obstructed, or interfered with a law enforcement
officer or a person assisting the officer while the officer was lawfully engaged in
2
As stated above, the instructional error is dispositive of our consideration of New’s criminal recklessness
conviction. Thus, we need not address her challenge to the sufficiency of the evidence regarding that charge.
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the execution of the officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). New
concedes that Deputy Lanham was lawfully engaged in the execution of his
duties as a law enforcement officer. She claims only that the State failed to
prove that she “forcibly” resisted Deputy Lanham in the execution of those
duties.
[18] A person forcibly resists a police officer when she uses strong, powerful, violent
means to impede an officer in the lawful execution of his duties. Walker v. State,
998 N.E.2d 724, 726-27 (Ind. 2013). An overwhelming or extreme level of
force is not required; rather, forcible resistance may be satisfied with even a
modest exertion of strength, power, or violence. Id. at 727. Deputy Lanham
testified that after he was finally able to get New to comply with his request to
exit her vehicle, she repeatedly disregarded his attempts to lead her to the rear
of the vehicle, each time pulling away from his grip to try to get back to the
driver’s door. At one point, Deputy Lanham had to grab New by the shoulders
to try to prevent her from yet again ignoring his commands. After she
maneuvered away a third time, Deputy Lanham attempted to put handcuffs on
New, but New began struggling to an extent that another officer had to step in
to assist. Deputy Lanham described New as being “fairly strong for a small
woman resisting being placed in handcuffs.” Tr. Vol. 3 at 250. The jury could
reasonably infer from this evidence that New engaged in at least a modest
exertion of strength to impede Deputy Lanham in the execution of his duties as
a police officer. The State presented sufficient evidence to support New’s
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conviction for class A misdemeanor resisting law enforcement, and therefore
we affirm that conviction.
[19] Affirmed in part, reversed in part, and remanded.
Baker, J., and Kirsch, J., concur.
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