Justin McIntosh v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: June 16, 2015
• Docket: 49A05-1410-CR-459
• Status: Published

Opinion

MEMORANDUM DECISION Jun 16 2015, 8:37 am Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Deborah Markisohn Gregory F. Zoeller Marion County Public Defender Agency Attorney General of Indiana Indianapolis, Indiana Christina D. Pace Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Justin McIntosh, June 16, 2015

Appellant-Defendant, Court of Appeals Case No. 49A05-1410-CR-459 v. Appeal from the Marion Superior Court Criminal Division 15

State of Indiana, The Honorable John Chavis, Judge Appellee-Plaintiff Cause No. 49F15-1401-FD-4104

Friedlander, Judge.

Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015 Page 1 of 5 [1] Justin McIntosh was convicted of Pointing a Firearm and Criminal

Recklessness,1 both class D felonies. On appeal, McIntosh challenges his

conviction for criminal recklessness,2 presenting one issue for our review: did

the State present sufficient evidence to support his conviction for criminal

recklessness?

[2] We affirm.

[3] The facts favorable to the conviction are as follows. On December 25, 2012,

Jonathon Harden and his girlfriend Jamie Walker arrived at their apartment

complex around 11:00 p.m. As they pulled into the complex, McIntosh was

driving directly in front of them. McIntosh came to a complete stop after

driving over the last speed bump. Harden waited about twenty seconds before

he drove around McIntosh and proceeded to his apartment building. As

Harden and Walker were gathering their belongings, McIntosh drove up behind

Harden’s car “almost immediately” and squealed his tires. Transcript at 537.

After parking next to Harden’s car, McIntosh exited his car and stood two feet

away from Harden, who had also exited his car. Both men engaged in a verbal

1 Ind. Code Ann § 35-42-2-2(a),(b) (1) (A) (West, Westlaw 2012). Effective July 1, 2014 this offense has been reclassified as a Level 6 felony. Ind. Code Ann. § 35-42-2-2(a), (b) (1) (A). (West, Westlaw current with P.L. 1-2015 to P.L. 87-2015 of the 2015 First Regular Session of the 119th General Assembly, with effective dates through April 29, 2015). Because McIntosh committed this offense prior to that date, it retains its prior classification as a class B felony. 2 On appeal, McIntosh does not challenge his conviction of Pointing a Firearm, a class D felony.

Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015 Page 2 of 5 altercation for one to three minutes. McIntosh placed his fast-food bag on the

ground, reached into his coat pocket, pulled out a gun, and pointed it at

Harden’s chest. Harden raised his hands up to his chest and said, “Don’t

shoot.” Id. at 227. Harden then backed away from the gun and turned away

from McIntosh. Walker, who was seated in the car, watched McIntosh pick up

his fast-food bag, walk toward the apartment building, fire his gun straight into

the air, and enter into the apartment building. Harden was in the process of

dialing 911 when he heard the “pop” of the gun. Id. at 229.

[4] On February 3, 2014, the State charged McIntosh with, pointing a firearm

(count I), and criminal recklessness (count II), both class D felonies. Count II

was later amended to change the language of the charge from “inflicted serious

bodily injury” to “created a substantial risk of bodily injury.” Appellant’s

Appendix at 47, 50. Following a jury trial, McIntosh was convicted as charged.

[5] On appeal, McIntosh contends there is insufficient evidence to support his

conviction for criminal recklessness. McIntosh argues that the State presented

evidence only of a potential risk, rather than an actual, substantial risk of injury.

[6] When reviewing the sufficiency of the evidence needed to support a criminal

conviction, we neither reweigh evidence nor judge witness credibility. Henley v.

State, 881 N.E.2d 639 (Ind. 2008). “We consider only the evidence supporting

the judgment and any reasonable inferences that can be drawn from such

evidence.” Id. “(This court) will affirm unless no reasonable fact-finder could

Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015 Page 3 of 5 have found the crime proven beyond a reasonable doubt.” Dumes v. State, 23

N.E.3d 798, 801 (Ind. Ct. App. 2014).

[7] To convict McIntosh of criminal recklessness as charged, the State was required

to prove that: (1) McIntosh, (2) recklessly, knowingly, or intentionally, (3)

performed an act, (4) that created a substantial risk of personal injury to another

person, (5) while armed with a deadly weapon. I.C. § 35-42-2-2 (a), (b) (1) (A).

McIntosh challenges the element that he created a substantial risk of personal

injury. What constitutes a “substantial” risk is not defined in I.C. § 35-42-2-2.

Consequently, we construe the word in its plain, ordinary, and usual sense.

Young v. Hood's Gardens, Inc., 24 N.E.3d 421 (Ind. 2015). A substantial risk is a

risk that has “substance or actual existence” rather than mere speculation. Smith

v. State, 688 N.E.2d 1289, 1291 (Ind. Ct. App. 1997).

[8] McIntosh argues the State did not provide enough evidence to prove he created

a substantial risk of injury, and for that reason there is insufficient evidence to

sustain the criminal recklessness conviction. McIntosh directs us to Elliot v.

State, 560 N.E.2d 1266 (Ind. Ct. App. 1990), where this court reversed the

conviction of criminal recklessness when the defendant fired shots into a

neighboring woodland that was also a common hunting area. This court held

that Elliot’s conduct did not create a substantial risk of bodily injury to another

person because “there were no people in or near his line of fire.” Id. at 1267.

[9] In contrast, McIntosh did not fire in an abandoned area; he fired his gun in a

residential area. McIntosh disregarded the risk of injuring Harden, who was in

Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015 Page 4 of 5 the parking lot, Walker, who was inside a parked vehicle, and the residents of

International Village Apartments. To sustain his conviction, the State was

required to show that McIntosh’s acts created a substantial or actual risk of

injury, rather than a speculative risk. Smith v. State, 688 N.E.2d 1289. Actual

existence of a risk of injury was proven where the evidence showed that

McIntosh purposefully fired one shot in the air while in a residential area,

knowing that there was a risk of injury. The State presented sufficient evidence

from which the jury could infer that McIntosh created a substantial risk of

injury to Harden, Walker, and the residents of International Village.

Baker, J., and Najam, J., concur.

Court of Appeals of Indiana | Memorandum Decision 49A05-1410-CR-459 | June 16, 2015 Page 5 of 5