Leslie Michelle New v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: October 31, 2019
• Docket: 19A-CR-575
• Status: Published

Opinion

FILED Oct 31 2019, 7:06 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE R. Thomas Lowe Curtis T. Hill, Jr. Lowe Law Office Attorney General New Albany, Indiana Megan M. Smith Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Leslie Michelle New, October 31, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-575 v. Appeal from the Orange Circuit Court State of Indiana, The Honorable Steven L. Owen, Appellee-Plaintiff Judge Trial Court Cause No. 59C01-1509-F5-854

Crone, Judge.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 1 of 13 Case Summary [1] Leslie Michelle New appeals her convictions, following a jury trial, for level 5

felony criminal recklessness and class B misdemeanor resisting law

enforcement. She asserts that the trial court abused its discretion in refusing to

give one of her tendered jury instructions, and that her substantial rights were

prejudiced as a result. She also asserts that the State presented insufficient

evidence to support her convictions. We agree with New that the trial court

abused its discretion in instructing the jury and that her substantial rights were

prejudiced as to her criminal recklessness conviction. Accordingly, we reverse

that conviction and remand for a new trial. We find that the State presented

sufficient evidence to support New’s conviction for resisting law enforcement,

so we affirm that conviction.

Facts and Procedural History [2] In the summer of 2015, New’s five-year-old autistic daughter, M.N., began

residing on a permanent basis with New’s aunt and uncle, Barbara and Joe

New, in their double-wide mobile home located on sixty-one acres of property

in Paoli. Barbara and Joe had been close with M.N. since her birth and were

willing to help New because she “was having a tough time.” Tr. Vol. 3 at 86.

New granted Barbara and Joe a power of attorney so that they could make

decisions on M.N.’s behalf. During that summer, New did not visit her

daughter much. When it was time to enroll M.N. in kindergarten that fall,

New entered into a third-party custody agreement with Barbara and Joe so that

they could enroll M.N. in school.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 2 of 13 [3] On Monday, September 14, 2015, New showed up unannounced to Barbara

and Joe’s house around 3:15 p.m. After New visited with M.N. for

approximately one hour, Barbara informed New that M.N. was scheduled for

her first gymnastics class at 5:00 p.m. Barbara had signed up for the gymnastics

class to help M.N. socialize. The women began arguing after Barbara refused

to tell New the location of the class because Barbara did not want New to come

to the class and “cause problems.” Id. at 103. New grabbed M.N.’s hand, led

her to her vehicle, and placed the child in the front passenger seat. Barbara

followed, asking New what she was doing, and telling her that M.N. had school

the next morning. Barbara attempted to unbuckle the seatbelt and remove

M.N. from the vehicle. Barbara was unable to get M.N. unbuckled and out of

the vehicle, so she told New that she was going to call the police. Barbara

closed the passenger door of the vehicle and walked around the back of the

vehicle while dialing 911. Barbara stood behind the vehicle as Joe came outside

and walked to the driver’s-side door, trying to block New from entering the

vehicle. Joe grabbed New’s car keys out of her hand and yelled to Barbara that

he had the keys. Still standing directly behind the vehicle, Barbara yelled back

that New had another set of keys and that she could see that New was looking

through her purse for the extra set.

[4] New located her extra set of keys, got in the vehicle, locked the door, and

started the engine. New put the vehicle in reverse and backed up, bumping into

Barbara and knocking her to the ground. Barbara screamed, and New then

pulled the vehicle forward, “circled through the yard[,]” and drove away. Id. at

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 3 of 13 110. Barbara, who was still on the phone, told the 911 dispatcher that New had

struck her with a vehicle and driven away.

[5] Orange County Sheriff’s Department officers responded to Barbara’s call that

“started out as a domestic issue over a child … and then at some point …

changed and … became a hit and run.” Id. at 240. As Chief Deputy Dennis

Lanham was traveling to the scene, he observed a vehicle matching the

description of New’s vehicle driving in the opposite direction. Deputy Lanham

initiated a traffic stop. When Deputy Lanham approached the vehicle, he

noticed that New was driving the vehicle and that M.N. was in the front

passenger seat. Deputy Lanham thought New behaved oddly because she

“kind of just stared” at him and then asked him for his police credentials even

though he had identified himself, was in full uniform, and was driving a marked

police vehicle. Id. at 244. Deputy Lanham asked New several times to exit the

vehicle so that he could speak to her about the incident with Barbara, but New

just continued to stare at him. Deputy Lanham informed New that he was

going to have to remove her from the vehicle. Once Deputy Lanham opened

the driver’s-side door, New finally complied and stepped out of the vehicle.

[6] Deputy Lanham walked with New to the rear of her vehicle. New began

stating that she could “fix this” and wanted to “go back” to Barbara and Joe’s

house to “straighten this out.” Id. at 248-49. New then turned around and

started walking back toward the driver’s door. Deputy Lanham “got her by the

arm, turned her back around and … started back around the vehicle again.” Id.

at 249. New pulled away from Deputy Lanham and tried to walk back toward

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 4 of 13 the driver’s door again. This “occurred three times” before Deputy Lanham

“finally grabbed [New] by both shoulders, held her firmly against the vehicle

and said, [‘]look, this has got to stop. … I can’t have you going back to the

car.[’]” Id. at 249. New seemed to understand and “be okay[,]” but as soon as

Deputy Lanham relaxed his grip, “she attempted to go get in the car” a fourth

time. Id. at 250. Deputy Lanham decided “there was no more talking to her

and convincing her to comply,” so he turned New around to put her in

handcuffs. Id. New, who was “fairly strong[] for a small woman[,]” resisted

and struggled with Deputy Lanham as he attempted to place the handcuffs on

her. Id. Another officer who had arrived at the scene had to help Deputy

Lanham secure New. Deputy Lanham arrested New for resisting law

enforcement, and she was transported to jail.

[7] The State subsequently charged New with level 5 felony battery by means of a

deadly weapon, class B misdemeanor criminal recklessness, and class A

misdemeanor resisting law enforcement. Following a three-day trial, the jury

found New guilty of criminal recklessness and resisting law enforcement, but

not guilty of battery by means of a deadly weapon. The trial court imposed

consecutive sentences of 180 days, with eighty-two days executed and ninety-

eight days suspended, with credit for eighty-two days previously served, on the

criminal recklessness count, and 365 days, fully suspended, on the resisting law

enforcement count. This appeal ensued.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 5 of 13 Discussion and Decision

Section 1 – The trial court abused its discretion in refusing to give New’s tendered jury instruction regarding negligence. [8] Because we find it dispositive to our resolution of New’s appeal as it pertains to

her criminal recklessness conviction, we first address her challenge to the trial

court’s instruction of the jury. Specifically, New asserts that the trial court

abused its discretion in refusing to give her proposed instruction regarding the

definition of negligence as it related to the criminal recklessness charge. 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

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 (citation omitted). However,

even if the refusal to give a tendered jury instruction was error, this Court must

assess whether the defendant was prejudiced by the trial court’s failure to give

the instruction. Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015).

[9] To convict New of class B misdemeanor criminal recklessness, the State was

required to prove beyond a reasonable doubt that New recklessly, knowingly, or

intentionally performed an act that created a substantial risk of bodily injury to

another person. See Ind. Code § 35-42-2-2(a). The State’s theory here was that

New behaved recklessly when she backed her vehicle into Barbara. “A person

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 6 of 13 engages in conduct ‘recklessly’ if [s]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.” Ind. Code § 35-41-2-2(c).

[10] Regarding final jury instructions, New requested that, in addition to being

instructed on the definitions of recklessly, knowingly, and intentionally, the jury

be given an instruction defining negligence and distinguishing between

negligence and recklessness. Specifically, New’s counsel proposed that the jury

be given an instruction that:

in addition to defining recklessly it says uh, this requires the State to prove more than mere negligence on the part of the defendant because a person may be negligent but not, but may not have acted recklessly. Negligence is the failure to do what a reasonably careful and prudent person would do under the same or similar [c]ircumstances or the doing of something that a reasonably careful and prudent person would not do under the same or similar [c]ircumstances. In other words negligence is the failure to exercise reasonable or ordinary care. If you find that the defendant only acted negligently but not recklessly you must find the defendant not guilty.

Tr. Vol. 4 at 65. The trial court denied counsel’s request, concluding that the

pattern jury instructions on the three applicable levels of culpability for criminal

recklessness were sufficient. The court determined that adding an instruction

regarding negligence could confuse the jury because “I don’t want the jury

thinking that there’s a negligence culpability that’s available … either [the State]

met [its] burden [on one of the three applicable levels] or [it] didn’t.” Id. at 66.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 7 of 13 [11] In support of her argument that the trial court’s decision constituted an abuse of

discretion as well as reversible error, New directs our attention to the fact that

in at least two instances, Indiana appellate courts have reversed reckless

homicide convictions based on incidents involving the operation of a motor

vehicle where the trial court failed to give the defendant’s proposed jury

instructions regarding negligence. Cichos v. State, 243 Ind. 187, 184 N.E.2d 1

(1962); Sipp v. State, 514 N.E.2d 330 (Ind. Ct. App. 1987).1 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 the 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 of the evidence and the law establishing such theory was never given to the jury in any instructions.

1 We note that although these cases involved convictions for reckless homicide rather than criminal recklessness, the “reckless” mens rea is the same.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 8 of 13 Cichos, 243 Ind. at 192, 184 N.E.2d at 3.

[12] In Sipp, the defendant, who was operating his vehicle in excess of fifty miles per

hour, sideswiped 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. The defendant 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, the

Sipp court agreed that the instructions should have been given to the jury and

reversed the conviction. Sipp, 514 N.E.2d at 332.

[13] More recently, in Springer v. State, 798 N.E.2d 431 (Ind. 2003), our supreme

court noted that, as a general matter, negligence is an argument and not a legal

defense to criminal recklessness. Id. at 435. In other words, a defendant’s

“negligence argument is simply a statement that [the] State failed to prove that

he was reckless,” and so long as the jury is properly instructed on the definition

of the reckless mens rea, no additional instruction is required. Id. However,

the court approved of the rationale in Cichos and Sipp and acknowledged that

such additional instruction regarding negligence may very well be required in

cases where there is a legal question of negligence at stake, such as in those

cases involving “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).

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 9 of 13 [14] We are convinced that this is a case where there is a legal question of

negligence at stake, as New was engaged in conduct that can be undertaken

with due care, namely operating a motor vehicle. The main theory of New’s

defense was that she backed her vehicle into Barbara completely on accident. It

is well settled that “[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)). New’s claim that she was only

negligent was at least a theory, with some foundation in the evidence, that

could have led to her acquittal, and therefore she was entitled to have a jury

instruction explaining that theory. Contrary to the State’s assertion, simply

allowing New’s counsel to argue that what she did was negligent rather than

reckless was an inadequate substitute for an instruction from the trial court

explaining the concept. Understanding the difference between reckless and

negligent conduct is not an easy task, and “even those trained in the legal

profession have grappled with abstract notions regarding degrees of

culpability.” Taylor v. State, 457 N.E.2d 594, 599 (Ind. Ct. App.1983).

[15] Under the circumstances presented, we conclude that New’s proposed

instruction was a correct statement of law, was based upon the evidence, was

not covered by other instructions, and was necessary to enable the jury to fairly

consider New’s theory or defense. As such, New’s substantial rights were

prejudiced by the trial court’s failure to give the instruction. Therefore, we

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 10 of 13 reverse New’s criminal recklessness conviction and remand for a new trial as to

that charge.2

Section 2 – The State presented sufficient evidence to support New’s conviction for resisting law enforcement. [16] We next address New’s claim that the State presented insufficient evidence to

support her conviction for resisting law enforcement. Sufficiency of the

evidence claims “face a steep standard of review.” Griffith v. State, 59 N.E.3d

947, 958 (Ind. 2016). When reviewing a challenge to the sufficiency of

evidence, we neither reweigh evidence nor judge witness credibility. Moore v.

State, 27 N.E.3d 749, 754 (Ind. 2015). Rather, we consider only the evidence

and reasonable inferences most favorable to the verdict and will affirm the

conviction unless no reasonable factfinder could find the elements of the crime

proven beyond a reasonable doubt. Id. Reversal is appropriate only when

reasonable persons would be unable to form inferences as to each material

element of the offense. McCray v. State, 850 N.E.2d 998, 1000 (Ind. Ct. App.

2006), trans. denied.

[17] To convict New of class A misdemeanor resisting law enforcement, the State

was required to prove beyond a reasonable doubt that Hill knowingly or

intentionally forcibly resisted, obstructed, or interfered with a law enforcement

officer or a person assisting the officer while the officer was lawfully engaged in

2 As stated above, the instructional error is dispositive of our consideration of New’s criminal recklessness conviction. Thus, we need not address her challenge to the sufficiency of the evidence regarding that charge.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 11 of 13 the execution of the officer’s duties. Ind. Code § 35-44.1-3-1(a)(1). New

concedes that Deputy Lanham was lawfully engaged in the execution of his

duties as a law enforcement officer. She claims only that the State failed to

prove that she “forcibly” resisted Deputy Lanham in the execution of those

duties.

[18] A person forcibly resists a police officer when she uses strong, powerful, violent

means to impede an officer in the lawful execution of his duties. Walker v. State,

998 N.E.2d 724, 726-27 (Ind. 2013). An overwhelming or extreme level of

force is not required; rather, forcible resistance may be satisfied with even a

modest exertion of strength, power, or violence. Id. at 727. Deputy Lanham

testified that after he was finally able to get New to comply with his request to

exit her vehicle, she repeatedly disregarded his attempts to lead her to the rear

of the vehicle, each time pulling away from his grip to try to get back to the

driver’s door. At one point, Deputy Lanham had to grab New by the shoulders

to try to prevent her from yet again ignoring his commands. After she

maneuvered away a third time, Deputy Lanham attempted to put handcuffs on

New, but New began struggling to an extent that another officer had to step in

to assist. Deputy Lanham described New as being “fairly strong for a small

woman resisting being placed in handcuffs.” Tr. Vol. 3 at 250. The jury could

reasonably infer from this evidence that New engaged in at least a modest

exertion of strength to impede Deputy Lanham in the execution of his duties as

a police officer. The State presented sufficient evidence to support New’s

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 12 of 13 conviction for class A misdemeanor resisting law enforcement, and therefore

we affirm that conviction.

[19] Affirmed in part, reversed in part, and remanded.

Baker, J., and Kirsch, J., concur.

Court of Appeals of Indiana | Opinion 19A-CR-575 | October 31, 2019 Page 13 of 13