Barber v. State

• Decision Date: 09 April 2007
• Docket Number: No. 49A02-0608-CR-689.,49A02-0608-CR-689.
• Citation: 863 N.E.2d 1199
• Parties: Benton BARBER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
• Court: Indiana Appellate Court

863 N.E.2d 1199

Benton BARBER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.

No. 49A02-0608-CR-689.

Court of Appeals of Indiana.

April 9, 2007.

COPYRIGHT MATERIAL OMITTED

Ruth Johnson, Marion County Public Defender Agency, Indianapolis, IN, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Gary Damon Secrest, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

VAIDIK, Judge.

Case Summary

Benton Barber appeals his convictions and sentence for two counts of reckless homicide and one count of failure to stop after an accident resulting in death. We conclude that the evidence is sufficient to support Barber's convictions, that the trial court did not abuse its discretion in sentencing Barber, and that Barber's sentence is not inappropriate in light of the nature of his offenses and his character. Furthermore, because, as this Court held in White v. State, 849 N.E.2d 735 (Ind.Ct. App.2006), reh'g denied, trans. denied, Indiana Code § 35-50-2-1.3 adds no restrictions on the ability of trial courts to impose consecutive sentences beyond the restrictions already in place by virtue of Indiana Code § 35-50-1-2(c), the trial court did not err in imposing consecutive maximum sentences for Barber's two reckless homicide convictions. Therefore, we affirm the judgment of the trial court.¹

Facts and Procedural History

At 11:49 a.m. on March 21, 2004, seventeen-year-old Lindsey Thompson ("Thompson") was driving south on I-465 in Indianapolis with a passenger, fifteen-year-old Kevin Gregg. The road was wet, and Thompson was driving in excess of the speed limit of fifty-five miles per hour when she came upon the forty-one-year-old Barber, who was driving the speed limit in the far right lane. As Thompson quickly approached Barber from behind, Barber, who was driving with his wife and thirteen-year-old son, "slammed" on his brakes. Tr. p. 57. As Thompson passed Barber in the middle lane, Gregg gave Barber "the finger." Id. at 175. Thompson re-entered the far right lane in front of Barber. Barber then pulled into the middle lane, accelerated to catch up with Thompson, gave Thompson and Gregg "the finger," id. at 176, and began "weaving" his car toward Thompson, id. at 150. According to Barber's wife, Barber then "cut [Thompson and Gregg] off, got in front of them a little bit too close. [Thompson] was like tailgating and then [Barber] hit the brake." Id. As Thompson began to move her vehicle to the left toward the middle lane, Barber "swerve[d]" to the left and came within "a couple feet" of Thompson's vehicle. Id. at 33-34. When Thompson moved to avoid Barber, she lost control of her car, crossed the grassy median, and collided head-on with a truck pulling a horse trailer. Thompson and Gregg both died at the scene from "blunt force trauma." Id. at 105.

The collision occurred just north of the 56th Street exit off of I-465. After Thompson lost control of her car, Barber "slowed down to look at the accident," id. at 34, but then sped up to "75 to 80 mile an hour," id. at 36. Despite having ample room on the shoulder to pull his car over, Barber continued down the interstate and exited at 38th Street. An eyewitness followed Barber off of the interstate and into the parking lot of a restaurant. The eyewitness told Barber that he should return to the scene of the accident, and Barber responded that he "had nothing to do with it." Id. at 75. When the eyewitness said that Thompson and Gregg had been killed, Barber stated, "No, they weren't." Id. at 181. Barber eventually promised to return to the scene of the collision, but when he reached the on-ramp for I-465, he drove past and continued home. When he arrived home, Barber called the police and told them about the collision. The Indiana State Police officer investigating the incident indicated that it was Thompson's act of following too closely that was the primary cause of the collision. See Ex. p. 14.

The State charged Barber with two counts of reckless homicide, a Class C felony,² and one count of failure to stop after an accident resulting in death, also a Class C felony.³ After a bench trial, the trial court found Barber guilty as charged. In sentencing Barber, the trial court identified two aggravating circumstances— Barber's criminal history and the fact that Barber was on probation when he committed the instant offenses—and three mitigating circumstances—Barber's remorse, Barber's "health conditions," Tr. p. 262, and the fact that Barber had been suffering from depression. Finding that the aggravators outweigh the mitigators, the trial court imposed the maximum sentence of eight years for each offense. The court ordered the sentences for the two reckless homicide convictions to run consecutively with the sentence for failure to stop to run concurrently. Finally, the trial court suspended eight of the sixteen years and ordered four years of probation. Barber now appeals.

Discussion and Decision

On appeal, Barber argues that (1) the evidence is insufficient to support his convictions for reckless homicide and failure to stop after an accident resulting in death and (2) the trial court improperly sentenced him.

I. Sufficiency of the Evidence

Barber first argues that the evidence is insufficient to support his convictions for reckless homicide and failure to stop after an accident resulting in death. Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of witnesses. McHenry v. State, 820 N.E.2d 124, 126 (Ind.2005). We must consider only the probative evidence and reasonable inferences supporting the verdict. Id. We must affirm if the probative evidence and reasonable inferences drawn from the evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond a reasonable doubt. Id.

A. Reckless Homicide

Barber asserts that the evidence is insufficient to support his convictions for reckless homicide. Indiana Code § 35-42-1-5 provides that "[a] person who recklessly kills another human being commits reckless homicide, a class C felony." "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." Ind.Code § 35-41-2-2. "Proof that an accident arose out of the inadvertence, lack of attention, forgetfulness or thoughtlessness of the driver of a vehicle, or from an error of judgment on his part, will not support a charge of reckless homicide." Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953).

As Barber notes, the trial court concluded that Barber's final swerve to the left caused Thompson to lose control over her car. Barber argues that his movement to the left was "an error in judgment which would be negligence but not recklessness." Appellant's Br. p. 10. In support of this argument, Barber directs us to this Court's opinion in Whitaker v. State, 778 N.E.2d 423 (Ind.Ct.App.2002), trans. denied.

Whitaker followed two to four car lengths behind a car driven by Cox and traveled at around sixty miles per hour, which was five miles per hour above the speed limit. The weather was clear and the pavement was dry. Cox began braking and signaled that she was going to turn left. Whitaker did not attempt to apply his brakes or otherwise evade Cox until almost the precise moment he struck her car in the rear. This propelled Cox's car into the oncoming lane of traffic, where it was run over by a dump truck. Cox died instantly, and Whitaker was convicted of reckless homicide.

Whitaker appealed, arguing that the evidence was insufficient to support his conviction. Apparently relying on Whitaker's testimony to the effect that he failed to notice that Cox was stopped until it was far too late for him to stop or avoid her car, the State posited "that the fact Whitaker failed to take any action to stop or evade Cox's car after she applied her brakes and signaled to turn is, in itself, evidence of his recklessness." Id. at 428. We rejected this argument, noting that this "would be evidence of inadvertence or lack of attention; in other words, negligence, not recklessness." Id. (citing Beeman, 232 Ind. at 690, 115 N.E.2d at 922). We further noted the State's urging to the jury that Whitaker did see Cox stopped in front of him but calculated, erroneously, that she would turn before he reached her. We stated that even if this were true, it would represent a gross error in judgment, and such an error constitutes negligence, not recklessness. Id. (citing Beeman, 232 Ind. at 690, 115 N.E.2d at 922). In reversing Whitaker's conviction, we concluded, "In short, this case involves a non-intoxicated, well-rested truck driver who drove slightly above the speed limit and arguably followed too closely behind another vehicle on a clear, dry day, with undeniably tragic results." Id.

The instant case is distinguishable from Whitaker. First, there is evidence that Barber's involvement in the collision did not arise from inadvertence or lack of attention. Eyewitness Gregory Robinson testified that as Thompson began to move her vehicle to the left toward the middle lane, Barber "swerve[d]" to the left and came within "a couple feet" of Thompson's vehicle. Tr. p. 33-34. Barber testified that he simply intended to move into the center lane to allow Thompson to pass him, but the trier of fact, in this case the trial court judge, did not believe Barber, and it is not the province of this Court to reweigh the evidence or to judge the credibility of witnesses.

Second, the evidence supports a finding that Barber's conduct did not result from a mere error in judgment, or even a "gross error in judgment," which, as we said in Whitaker, would constitute only negligence, not recklessness. 778 N.E.2d at 428 (citing Beeman, 232 Ind. at 690, 115 N.E.2d at 922)...