Coy v. State, 48A02–1301–CR–65.
| Decision Date | 18 December 2013 |
| Docket Number | No. 48A02–1301–CR–65.,48A02–1301–CR–65. |
| Citation | 999 N.E.2d 937 |
| Parties | Paul J. COY, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff. |
| Court | Indiana Appellate Court |
Christopher A. Cage, Anderson, IN, Attorney for Appellant.
Gregory F. Zoeller, Attorney General of Indiana, Ian McLean, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Paul Coy and his friend Mike Ducheteau raced cars on a two-lane road in Anderson, Indiana. Coy drove as fast as 106 miles per hour before losing control of the car and crashing it into a group of trees on the side of the road, killing one passenger, Darian Hurn, and seriously injuring his other passengers, A.K. and Z.M. Coy now appeals his convictions for one count of Class C felony reckless homicide and two counts of Class D felony criminal recklessness. Finding that the trial court properly declined to give a lesser-included instruction, there was not a fatal variation in the charging information, the trial court did not abuse its discretion by considering aggravators and failing to consider or give proper weight to mitigators, and Coy's sentence is appropriate in light of the nature of the offenses and his character, we affirm.
At approximately 1:30 p.m. on March 15, 2012, sixteen-year-old A.K. and sixteen-year-old Z.M. left school early without permission to spend time with nineteen-year-old Coy and seventeen-year-old Hurn. It was Hurn's birthday. Coy picked the girls up from school with his grandmother's car, a black 2010 Chevrolet Cobalt. Hurn was in the passenger seat. A.K. and Z.M. sat in the back seat.
After leaving the school, the group drove to Casey's Gas Station in Alexandria to meet Mike Ducheteau. Ducheteau was driving a gray Pontiac Grand Am.1 Ducheteau's friends, Sam Gustin and Shantell Pritchett, were passengers in his car. When Coy arrived, Coy and Ducheteau put gasoline in their cars. The group visited Hurn's house briefly and then began driving toward Anderson, Indiana.
At the intersection of State Road 128 and Madison Avenue, Hurn rolled down his window and asked Ducheteau if they wanted to race. Ducheteau agreed. Coy later admitted that he also wanted to race, stating that he Tr. p. 527. Ducheteau preferred to race on Madison Avenue because he was concerned about the police on State Road 9. Id. at 294. When the cars turned onto Madison Avenue, a rural two-lane road, they were both in the right lane with Ducheteau's car in front. The race began with both cars “burning out,” accelerating so that the car's tires were “squealing” as they drove north on Madison Avenue. Id. at 442, 445. After the turn onto Madison, Coy drove his car into the left lane, where oncoming traffic travels, and attempted to pass Ducheteau. As Coy began to pass Ducheteau, Ducheteau sped up. Coy went back into the right lane. He then tried to pass Ducheteau a second time. Ducheteau again sped up, preventing Coy from passing.
On the third passing attempt, a pickup truck approached from the opposite direction in the left lane and Ducheteau rolled down his window and told Coy to get into the right lane. At this point, Coy was traveling 106 miles per hour. Tr. p. 475–76; Ex. 56. After Coy pulled into the right lane, Ducheteau slammed on his brakes and Coy swerved to avoid hitting Ducheteau's car. Coy lost control of the car, swerved onto the grass on the right side of the road, and hit a patch of trees. Between one second and one-tenth of a second before hitting the trees, Coy's car was traveling at thirty-eight miles per hour. Id.
A.K. remained in the car for about ten minutes after the accident. Coy helped A.K. out of the car and she fainted. Because of the damage to the car, Z.M. and Hurn could not get out of the car without assistance. Emergency responders used a mechanical spreader and saw to create an opening large enough for them to be removed from the car. The impact broke A.K.'s vertebrae at L1 and L2 and shattered her wrist. Z.M. sustained a broken pelvis and sternum, a blood pocket under her spleen, and bruised intestines. The crash caused the Cobalt's dashboard to be pushed into the front seat, striking Hurn. Hurn, who was bleeding, spoke briefly to A.K. before losing consciousness. Hurn was then air lifted to Methodist Hospital in Indianapolis. He sustained severe blunt-force trauma that damaged his lung, tore his spleen, and stopped his heart. Physicians at Methodist performed surgery to apply cardio-pulmonary resuscitation. They also performed surgery to repair his lung and remove his spleen. Hurn continued to bleed internally and was placed on life support. Because his heart would not beat normally and a computerized tomography scan of his brain indicated that he had sustained a “non survivable head injury ,” Hurn's family took him off of life support. Tr. p. 486. He died early in the morning of March 16, 2013. Ex. 60.
Meanwhile, Coy moved to Tennessee to live with his mother. A.K. called him to inform him that there was a warrant for his arrest. Once he confirmed there was an arrest warrant, he surrendered himself to the police.
The State charged Coy with one count of Class C felony reckless homicide for Hurn and two counts of Class C felony2 criminal recklessness resulting in serious bodily injury for A.K. and Z.M. As a condition of being released on bond, Coy signed a protective order promising not to have contact with anyone who was in the car with him. Despite this, Coy continued to communicate with A.K., who was still his girlfriend, and was also charged with invasion of privacy during the pendency of this case.
At trial, Coy testified in his own defense. He claimed that he did not know how fast he was going, but he knew he was speeding. After the close of evidence, defense counsel requested that an instruction for reckless driving be provided as a lesser-included offense of reckless homicide. The State objected, arguing that no evidentiary dispute existed that would allow the introduction of the lesser-included offense. The court sustained the objection and refused to give the lesser-included instruction to the jury. The jury found Coy guilty of all charges.
At sentencing, the trial court found that Coy's lack of criminal history was a mitigator, but because he had a prior speeding ticket and “was aware of what the law was and the possible ramifications of speeding,” the mitigator was given little weight. Tr. p. 623. The trial court found that Coy's violation of the protective order with A.K. was an aggravator, stating that “[h]e has flaunted the law.” Id. at 624. It also found the fact that there were multiple victims in the case was an aggravator.Id. As a result of these circumstances, the trial court determined that the aggravating circumstances outweighed the mitigating circumstances. The court sentenced Coy to eight years in the Department of Correction for Class C felony reckless homicide, and three years for each count of Class D felony criminal recklessness, running concurrently. Id.
Coy now appeals.
Coy asserts that the trial court erred in refusing to allow the lesser-included offense of reckless driving to be argued and included in the jury instructions, the State presented a fatal variation between the charging information and the proof at trial, the trial court abused its discretion in imposing the maximum sentence for reckless homicide, and his sentence is inappropriate in light of the nature of the offense and his character.
Coy argues that the trial court erred by failing to instruct the jury that it had the option of convicting him of reckless driving as a lesser-included offense of reckless homicide.3 The State responds that Coy waived the issue by not tendering the pattern jury instruction.
It is well settled that “[t]he manner of instructing a jury is left to the sound discretion of the trial court.” Albores v. State, 987 N.E.2d 98, 99 (Ind.Ct.App.2013), trans. denied. When reviewing a trial court's decision to refuse or give jury instructions, this Court “considers: (1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Watson v. State, 972 N.E.2d 378, 383 (Ind.Ct.App.2012) ().
If a trial court errs by declining to give a jury instruction, “a tendered instruction is necessary to preserve error because, without the substance of an instruction upon which to rule, the trial court has not been given a reasonable opportunity to consider and implement the request.” Garrett v. State, 964 N.E.2d 855, 856 (Ind.Ct.App.2012) (quoting Mitchell v. State, 742 N.E.2d 953, 955 (Ind.2001) ), reh'g denied, trans. denied.
Indiana Rule of Criminal Procedure 8(D), in pertinent part, states the following:
Requested instructions must be reduced to writing (identified as to the party making submission), separately numbered, and accompanied by a cover sheet signed by the party, or his attorney, who requests such instructions and will be deemed sufficiently identified as having been tendered by the parties or submitted by the court if it appears in the record from an order book entry, bill of exceptions or otherwise, by whom the same were tendered or submitted.
Indiana Trial Rule 51(E) also permits a party to request jury instructions from the Indiana Pattern Jury Instructions “by merely designating the number thereof in the publication.”4 Here, Coy merely requested that a lesser-included offense instruction be provided for reckless driving without tendering proposed jury instructions or identifying a number from the Indiana Pattern Jury Instructions. Tr. p. 538–40. For this reason, Coy has waived this issue on appeal.
Waiver...
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