Matthew William Joseph v. State of Indiana (mem. dec.)

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).
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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
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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
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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
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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.
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