Darrell Smith v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Jan 31 2017, 9:05 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Kurt A. Young Curtis T. Hill, Jr.
Nashville, Indiana Attorney General of Indiana
Lyubov Gore
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Darrell Smith, January 31, 2017
Appellant-Defendant, Court of Appeals Case No.
49A02-1606-CR-1392
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Angela Dow-
Appellee-Plaintiff Davis, Judge
Trial Court Cause No.
49G16-1509-F5-32055
Baker, Judge.
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[1] Darrell Smith appeals his conviction for Level 5 Felony Criminal Recklessness, 1
arguing that the evidence is insufficient to support the conviction. Finding the
evidence sufficient, we affirm.
Facts
[2] In September 2015, Smith and Rebecca West had been living together for
twenty years. Their Indianapolis home has a swing on the front porch and
four-foot-tall shrubs lining the front and side of the porch. The swing was
approximately three to four feet away from the shrubs at the front of the porch.
[3] On the evening of September 4, 2015, Smith, West, and two of their friends
were gathered on the front porch. Smith had been drinking alcohol steadily for
much of the evening. At some point, West went inside the house, and Smith
followed her inside approximately ten minutes later. Smith, angry, asked West
why she had not put the laundry in the truck. The two argued, with West
eventually telling Smith that he could “get someone else to take him to the
laundromat.” Tr. p. 6.
[4] West then went outside and sat on the porch swing. 2 Ten minutes later, Smith
came to the front doorway, standing partly inside and partly on the porch,
about five feet from where West was sitting. He did not say anything to West.
Smith produced a handgun and fired it at the shrub in front of the porch swing.
1
Ind. Code § 35-42-2-2.
2
At some point, their friends had left.
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The gun made a loud sound and hurt West’s ears “really bad.” Id. at 14. Smith
then went back inside the house, gathered his clothing, and went to the
laundromat. West called the police and consented to a search of the residence;
police eventually found the handgun inside a potato bin in the bottom drawer of
a kitchen cabinet.
[5] On September 9, 2015, the State charged Smith with Level 5 felony criminal
recklessness and Level 6 felony pointing a firearm. Smith’s bench trial took
place on March 16, 2016. The State dismissed the pointing a firearm charge
and the trial court found Smith guilty of Level 5 felony criminal recklessness.
On June 1, 2016, the trial court sentenced Smith to 1095 days, with 1027 days
suspended and 365 days of probation. Smith now appeals.
Discussion and Decision
[6] Smith’s sole argument on appeal is that the evidence is insufficient to support
the conviction. When reviewing a claim of insufficient evidence, we will
consider only the evidence and reasonable inferences that support the
conviction. Gray v. State, 957 N.E.2d 171, 174 (Ind. 2011). We will affirm if,
based on the evidence and inferences, a reasonable jury could have found the
defendant guilty beyond a reasonable doubt. Bailey v. State, 907 N.E.2d 1003,
1005 (Ind. 2009).
[7] To convict Smith of Level 5 felony criminal recklessness, the State was required
to prove beyond a reasonable doubt that he recklessly, knowingly, or
intentionally performed an act that created a substantial risk of bodily injury to
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another person by shooting a firearm into a place where people are likely to
gather. I.C. § 35-42-2-2. Smith argues that the State failed to prove that his act
created a substantial risk of bodily injury to another person or that he shot a
firearm into a place where people are likely to gather.
[8] As for whether Smith’s action created a substantial risk of bodily injury to
another person, we must look to the proximity and presence of individuals that
might have been harmed by the defendant’s conduct to determine whether a
substantial risk existed. Smith v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App.
1997) (finding evidence sufficient to support criminal recklessness conviction
where defendant fired a gun six times in his back yard, shooting at an old car
that was within fifty yards of other homes). The State need not prove that the
defendant was aiming at a specific person because it is common knowledge that
bullets do not always go exactly where the shooter intended and can change
trajectory by ricocheting off of other objects. See, e.g., Upp v. State, 473 N.E.2d
1030, 1031 (Ind. Ct. App. 1985) (finding substantial risk of bodily injury existed
where the defendant fired multiple times at the ground in front of the victim’s
feet because “had Upp missed his aim or had a bullet struck a stone and
ricocheted, there was a substantial risk that [the victim] would have been hit”).
[9] Here, the record reveals that Smith, who had been steadily consuming alcohol
during the evening, was standing approximately five feet from where West was
sitting and fired a handgun at a shrub that was only three to four feet away from
her. West could have easily been hit by the bullet if she had stood up from the
swing at the time Smith fired the weapon or if Smith’s aim was inaccurate;
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moreover, the bullet could have ricocheted off of something on the porch or
near the shrub and hit West. We find that a reasonable factfinder could have
concluded based on this evidence that Smith’s location and proximity to West
during the discharge of the weapon created a substantial risk of bodily injury to
West.
[10] Smith also contends that the evidence does not support a conclusion that he
shot a firearm into a place where people are likely to gather. He focuses on the
word “into,” for although he admits firing the weapon while standing on his
front porch, he insists that the fact that he fired at the shrub in front of the porch
rather than into the porch itself means that the conviction cannot stand. We
disagree. The record reveals that Smith was standing partially on the porch and
partially inside the house when he fired at the shrub at the front of the porch.
This location necessarily means that Smith shot “into” the porch—the bullet
had to have followed a trajectory across the porch to have reached a point in
front of it.
[11] Smith directs our attention to multiple cases, but we find them readily
distinguishable. Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind. Ct. App. 1995)
(evidence insufficient where defendant fired gun across a vacant lot); Elliott v.
State, 560 N.E.2d 1266, 1267 (Ind. Ct. App. 1990) (evidence insufficient where
defendant fired pistol towards uninhabited fields and woodlands). Here, in
contrast to either of those cases, Smith shot the handgun while standing at the
back of an occupied front porch of an Indianapolis home in a residential
neighborhood. A reasonable factfinder could have concluded based on this
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evidence that Smith shot a firearm into a place where people are likely to
gather. We find the evidence sufficient to support the conviction.
[12] The judgment of the trial court is affirmed.
Mathias, J., and Pyle, J., concur.
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