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

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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

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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

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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

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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

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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)).

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[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

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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

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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

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(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.

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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

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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)

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(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.

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