Theressa Jones v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Mar 27 2018, 7:55 am
this Memorandum Decision shall not be
CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Anthony C. Lawrence Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
George P. Sherman
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Theressa Jones, March 27, 2018
Appellant-Defendant, Court of Appeals Case No.
48A02-1703-CR-523
v. Appeal from the Madison Circuit
Court
State of Indiana, The Honorable Mark K. Dudley,
Appellee-Plaintiff. Judge
Trial Court Cause No.
48C06-1212-FC-2262
Mathias, Judge.
[1] Theressa Jones (“Jones”) was convicted in Madison Circuit Court of Class C
felony reckless homicide. Jones appeals her conviction and argues that the trial
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 1 of 13
court abused its discretion when it refused to tender her proposed instructions
to the jury concerning her claim that her actions were negligent, but not
reckless.
[2] We affirm.
Facts and Procedural History
[3] On July 16, 2012, Jones, LaQuinda Maxwell (“Maxwell”), and Maxwell’s
cousin and sister were traveling in a U-Haul truck with an attached car trailer
on Broadway Street in Anderson, Indiana. Maxwell was driving the truck, and
Jones was seated in the passenger seat. The two children were seated on the
floorboard between Maxwell and Jones.
[4] As Maxwell drove the U-Haul down Broadway Street, Maxwell and Jones were
arguing and Maxwell told Jones that they were “done.” Tr. Vol. II, pp. 196–97.
Jones believed that Maxwell was ending their relationship. Id. Jones was upset,
threatened to jump out of the vehicle, and opened the passenger door to the U-
Haul. Maxwell and the children grabbed Jones to prevent her from jumping. As
Maxwell did so, her foot pressed down on the accelerator, and the U-Haul
swerved. Maxwell lost control of the U-Haul, and it began to spin. Jones was
thrown from the vehicle.
[5] William Richards (“Richards”) was stopped on his motorcycle at the
intersection of Broadway and Grand. Maxwell was unable to regain control of
the U-Haul and hit Richards as it spun through the intersection. The impact
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 2 of 13
caused Richards’s death. The U-Haul eventually came to a stop when it hit a
utility pole.
[6] Later investigation revealed that Maxwell was travelling approximately sixty-
two miles per hour, twenty-two miles per hour over the posted speed limit,
when she lost control of the U-Haul. Maxwell also tested positive for marijuana
and Klonapin and admitted that she had a shot of Vodka before driving the U-
Haul. However, officers at the scene stated that Maxwell did not appear to be
intoxicated. Maxwell eventually pleaded guilty to reckless homicide and
operating a vehicle causing death with a controlled substance in her blood
stream.
[7] On December 5, 2012, the State charged Jones with Class C felony reckless
homicide. A jury trial was held on November 24, 2014, and Jones was
convicted as charged. Jones’s conviction was reversed on appeal because the
trial court erred when it removed a juror after deliberations had begun. See
Theressa Jones v. State, No. 48A02-1501-CR-56 (Ind. Ct. App. Dec. 10, 2015).
[8] Jones’s second jury trial commenced on January 10, 2017. Jones argued that
her acts were negligent but not criminal. She also argued that Maxwell would
have been able to maintain control of the U-Haul if she had not been speeding.
In support of her defense, Jones presented testimony from an accident
reconstructionist who testified that the vehicle’s speed was the primary cause of
the accident. Tr. Vol. IV, pp. 80–82. The State countered this testimony with
Jones’s statement to a police officer that the crash would not have occurred if
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 3 of 13
she had not opened the door and tried to jump out of the U-Haul. Ex. Vol.,
State’s Exs. 55 & 55A.
[9] Jones requested several jury instructions in support of her claim that her actions
were not criminally reckless but merely negligent, including the definition of
negligence, the difference between negligent and criminal behavior, and
explained a driver’s duty of care. Appellant’s App. pp. 92–102. The trial court
refused to give Jones’s requested instructions to the jury.
[10] Jones was found guilty as charged. The trial court ordered Jones to serve the
same sentence she was ordered to serve after her first trial: five years, with three
years executed in the Department of Correction and two years suspended to
probation. Jones now appeals.
Discussion and Decision
[11] Jones argues that the trial court abused its discretion when it refused to give her
proposed instructions numbers 1–10. “The purpose of a jury instruction is to
inform the jury of the law applicable to the facts without misleading the jury
and to enable it to comprehend the case clearly and arrive at a just, fair, and
correct verdict.” Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015) (internal
quotation marks omitted).
[12] 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
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 4 of 13
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. “[W]e consider the
instructions as a whole and in reference to each other and do not reverse the
trial court for an abuse of discretion unless the instructions as a whole mislead
the jury as to the law in the case.” McCowan v. State, 27 N.E.3d 760, 764 (Ind.
2015).
[13] Jones’s proposed instructions defined negligence, compared negligent versus
reckless acts, defined criminal intent, and explained the duty of a driver to
exercise due care when operating a vehicle. Appellant’s App. Vol. II, pp. 92–
102. The State argues that the trial court properly refused to give these
instructions to the jury because negligence is not a legal defense to the crime of
reckless homicide.
[14] The State relies heavily on Springer v. State, 798 N.E.2d 431 (Ind. 2003), in
support of its argument. In that case, the defendant took a loaded gun to a
home to confront boys who had beaten his son. The defendant either fired a
“warning shot” or accidentally discharged the gun, and the bullet travelled
through a refrigerator and wall before striking a boy who was in the bathroom.
The defendant was charged and convicted of criminal recklessness.
[15] The defendant appealed his conviction and argued that the trial court abused its
discretion when it refused to give his proposed instructions on the definition of
negligence, the definition of recklessness, and the defense of accident. The
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 5 of 13
defendant argued that the trial court’s instruction defining recklessness was an
incorrect statement of law because the jury was not instructed that the State is
required to prove recklessness as opposed to mere negligence. Id. at 434. And
the defendant argued that the tendered jury instructions did not explain the
difference between recklessness and negligence. Finally, the defendant claimed
that because the trial court refused to instruct the jury on negligence, the court
“effectively prohibited the jury from hearing any instruction on any theory of
his defense.” Id.
[16] Our court agreed with the defendant, but our supreme court rejected the
defendant’s arguments stating “[n]egligence, as used by Defendant here, is an
argument not a legal defense. Defendant’s legal defense was and is that he is not
guilty of criminal recklessness because his actions did not meet the legal
requirements of recklessness.” Id. at 435. The court noted that the defendant
freely argued that “he did no more than fail ‘to exercise reasonable or ordinary
care.’” Id. Finally, the court observed that “no reasonable interpretation of the
facts suggests that Defendant’s conduct was merely negligent, that he merely
failed to exercise reasonable or ordinary care.” Id. (noting that “‘there is no
definition of reasonable or ordinary care that encompasses the circumstance of
an uninvited person seeking confrontation in the occupied residence of another
person, while wielding a loaded, cocked weapon without the safety mechanism
engaged’”) (quoting Springer, 779 N.E.2d 555, 565 (Ind. Ct. App. 2002), trans.
granted (Bailey, J., dissenting)).
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 6 of 13
[17] The Springer court was unpersuaded by the defendant’s citations to and our
court’s reliance on Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962) and Sipp v.
State, 514 N.E.2d 330 (Ind. Ct. App. 1987). In both of those cases, the driver of
a vehicle was charged with reckless homicide, and the convictions were
reversed because the defendants’ proposed instructions on negligence were not
given to the jury. The Springer court stated that “the factual circumstances of
this case distinguish it from Cichos and Sipp. Both of those cases involved
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).
[18] 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
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
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 7 of 13
of the evidence and the law establishing such theory was never
given to the jury in any instructions.
Cichos, 243 Ind. at 192, 184 N.E.2d at 3.
[19] In Sipp, the defendant, who was operating his vehicle in excess of fifty miles per
hour, side-swiped 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. Sipp 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, our
court agreed that the instructions should have been given to the jury, and we
reversed his conviction. Sipp, 514 N.E.2d at 332.
[20] Although the facts of this case are more closely aligned with those in Sipp and
Cichos, there are two significant factual differences: Jones was not the driver of
the vehicle, and she was not involved in conduct that can be undertaken with
due care. See Springer, 798 N.E.2d at 436. Jones threatened to jump out of the
U-Haul and opened the passenger side door so that she could do so while the
U-Haul was being operated on a roadway. Importantly, negligence law
“presupposes that an individual is engaged in lawful conduct which can be
undertaken with due care for the safety of another person.” Id. at 435.
[21] We cannot agree with the dissent that Jones’ actions were reckless “only as to
her own safety.” Slip op. at 12. It is foreseeable that to jump out of a moving
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 8 of 13
vehicle onto the roadway could result in a traffic accident that involves third
parties. It is not lawful to create such a hazard on the roadway. Jones was not
entitled to an instruction that presupposes that such an act could be lawful.
[22] At trial, Jones argued that the State failed to prove that her conduct met the
legal requirements of recklessness and that Maxwell’s operation of the vehicle,
i.e. speeding and removing her hands from the steering wheel, was the cause of
the accident. Therefore, like the defendant in Springer, Jones’s argument was a
challenge to the sufficiency of the evidence rather than “a legal defense.” See id.
[23] Moreover, during closing arguments, Jones’s counsel discussed the concept of
negligence with the jury including that negligent conduct does not give rise to
criminal liability. Tr. Vol. 4, p. 191. Jones also emphasized her expert’s
testimony that Maxwell caused the accident because she was speeding, and that
Maxwell had taken a shot of vodka before she drove the U-Haul and had
marijuana and Klonapin in her system.
[24] Importantly, the jury was properly instructed that the State was required to
prove beyond a reasonable doubt that Jones engaged “in the conduct in plain,
conscious, and unjustifiable disregard of harm that might result and the
disregard involve[d] a substantial deviation from acceptable standards of
conduct.” Appellant’s App. p. 105. The jury was also given the following
instruction titled “Responsible Cause.”
A person’s conduct is legally responsible for causing death if:
(1) the death would not have occurred without the conduct, and
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 9 of 13
(2) the death was a natural, probable, and foreseeable result of
the conduct.
This is called a “responsible cause.”
There can be more than one responsible cause for a death.
Id.
[25] Because she was found guilty of reckless homicide, the jury must have
concluded that the State proved recklessness beyond reasonable doubt, which
necessarily negated Jones’s argument that Maxwell was solely responsible for
the accident and that her own conduct was merely negligent and not a
responsible cause of the victim’s death.
[26] For all of these reasons, we conclude that the trial court did not abuse its
discretion when it refused to give Jones’s proposed instructions concerning
negligence to the jury.
[27] Affirmed.
Najam, J., concurs.
Barnes, J., dissents with opinion.
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 10 of 13
IN THE
COURT OF APPEALS OF INDIANA
Theressa Jones, Court of Appeals Case No.
48A02-1703-CR-523
Appellant-Defendant,
v.
State of Indiana,
Appellee-Plaintiff.
Barnes, Judge, dissenting.
[28] I respectfully dissent. There is a fine line between reckless and negligent
conduct, and I believe there was a clear question here as to whether Jones was
reckless or merely negligent with respect to Richards’s death. As such, the jury
should have been thoroughly and accurately instructed on the difference
between recklessness and negligence.
[29] Caselaw is replete with examples of reckless homicide convictions based on
traffic accidents being reversed because the evidence only supported a finding of
negligence, not recklessness. See, e.g., DeVaney v. State, 259 Ind. 483, 288
N.E.2d 732 (1972) (holding evidence was insufficient to support reckless
homicide conviction where defendant was intoxicated and crossed centerline
but there was no evidence as to how long he had been in the wrong lane before
accident); Seibert v. State, 239 Ind. 283, 156 N.E.2d 878 (1959) (reversing
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 11 of 13
reckless homicide conviction where defendant attempted to pass a vehicle while
his vision was obstructed and had head-on collision with oncoming vehicle);
State v. Boadi, 905 N.E.2d 1069 (Ind. Ct. App. 2009) (holding defendant’s
failure to stop at red light, resulting in accident and death, did not support
charge of reckless homicide); Clancy v. State, 829 N.E.2d 203 (Ind. Ct. App.
2005) (reversing reckless homicide conviction where defendant fell asleep
behind the wheel), trans. denied; Whitaker v. State, 778 N.E.2d 423 (Ind. Ct. App.
2002) (reversing reckless homicide conviction where tanker-trailer rear-ended a
car after speeding slightly), trans. denied. And, as noted by the majority, in at
least two cases (Cichos and Sipp) courts have reversed reckless homicide
convictions based on traffic accidents where the trial court failed to give jury
instructions regarding negligence.
[30] The majority distinguishes cases like the ones above because they involved
drivers of vehicles, whereas Jones was only a passenger. I do not believe that
makes a difference here. I am willing to concede that Jones’s action of opening
the door of a moving vehicle could be deemed unquestionably “reckless” in a
sense—but only as to her own safety, or for example a child’s safety if she had
been holding one or one had been seated nearby. The question here is whether
she was reckless as to the ultimate result of Richards’s death. In order to
sustain a reckless homicide conviction, the State was required to prove that
Jones acted in plain, conscious, and unjustifiable disregard of the harm that
might result and such conduct was a substantial deviation from acceptable
standards of conduct. See Champlain v. State, 681 N.E.2d 696, 701 (Ind. 1997)
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 12 of 13
(citing Ind. Code § 35-41-2-2(c)). Jones’s conduct here, while plainly dangerous
to herself, was not so plainly dangerous to third parties. This was entirely
unlike bringing a loaded firearm into a heated situation, as occurred in Springer.
[31] “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)). Thus, even if Jones’s claim that she was only negligent did not
qualify as a “defense” under Springer, it was at least a “theory” that could have
led to her acquittal. She was entitled to have a jury instruction explaining that
theory. Nor do I think that allowing her attorney to argue about negligence was
an adequate substitute for an instruction from the trial court explaining the
concept to the jury and thus confirming that the argument had legal merit. In
fact, the jury was instructed, “The Court’s instructions are your best source in
determining the law.” App. Vol. II p. 104. Hearing this, and not hearing an
instruction about the definition of negligence and its difference from
recklessness, the jury might have felt free to disregard counsel’s arguments
about negligence.
[32] In sum, I vote to reverse Jones’s conviction and remand for retrial.
Court of Appeals of Indiana | Memorandum Decision 48A02-1703-CR-523 | March 27, 2018 Page 13 of 13