Dewhitt v. State
| Decision Date | 29 June 2005 |
| Docket Number | No. 49A02-0406-CR-540.,49A02-0406-CR-540. |
| Citation | 829 N.E.2d 1055 |
| Parties | David L. DeWHITT, Appellant-Defendant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Frederick Vaiana, Voyles Zahn Paul Hogan & Merriman, Indianapolis, for Appellant.
Steve Carter, Attorney General of Indiana, Grant H. Carlton, Deputy Attorney General, Indianapolis, for Appellee.
Following a jury trial, David L. DeWhitt was convicted of one count of Criminal Recklessness as a Class D felony.1 Upon appeal, DeWhitt presents four issues for our review, which we restate as:
I. Whether the evidence is sufficient to support DeWhitt's conviction;
II. Whether the trial court erred in denying DeWhitt's motion for judgment on the evidence;
III. Whether DeWhitt was denied the effective assistance of trial counsel; and
IV. Whether the trial court violated the Blakely rule in sentencing DeWhitt.
We affirm the conviction, but remand for sentence modification.
The facts most favorable to the jury's verdict reveal that on March 3, 2003, DeWhitt drove his Ford Expedition to work at Fort Benjamin Harrison in Indianapolis. DeWhitt parked his vehicle in the employee parking lot, but because there was snow and ice on the lot, he claimed it was difficult to see the parking spaces. DeWhitt parked his vehicle next to another parked vehicle and went to work. Later that morning, Ginger Miller, an employee of Lawrence Towing, got a call from police at Fort Harrison that some vehicles were improperly parked and needed to be towed away. Miller dispatched a tow-truck driver who returned with DeWhitt's Ford.
When DeWhitt went back to the lot to look for his vehicle, he discovered that his vehicle was missing and eventually learned that it had been towed away. DeWhitt then placed a call to Lawrence Towing and told Miller that he wanted his car brought back to the Fort. Miller told DeWhitt that if they brought the vehicle back for DeWhitt that he would be charged an additional towing fee. DeWhitt hung up the phone.
DeWhitt had someone drop him off at Lawrence Towing approximately one hour later. DeWhitt did not enter the office but instead went straight to the impound lot. Two employees of Lawrence Towing, Walter Taylor and James Eads, went outside to the lot to talk to DeWhitt. They told DeWhitt that he needed to pay for the towing and complete some paperwork before he could reclaim his vehicle. DeWhitt refused to comply.2 DeWhitt entered his vehicle and began to drive out of the lot without paying. Ms. Miller later testified that she heard a car door shut, the engine start, and tires spinning. Eads shut the lot gate, but before he could get the gate completely shut, DeWhitt hit it. DeWhitt drove through the gate and struck Eads in his right leg above the knee with the bumper of the truck. DeWhitt quickly exited the lot. Miller telephoned the police, and Eads was later taken to the hospital.
As a result of this incident, on March 6, 2003, the State charged DeWhitt as follows:
"David L DeWhitt, on or about March 3, 2003, while armed with a deadly weapon, that is: a motor vehicle, specifically, a Ford Expedition SUV, recklessly performed an act that created a substantial risk of bodily injury to James Eads, that is: drove said vehicle at James Eads as he attempted to close security gates, striking James Eads in the leg with the vehicle." App. at 26.
Upon the conclusion of the State's case-in-chief in the jury trial held on February 18, 2004, DeWhitt moved for a judgment of acquittal. The trial court denied the motion. After both sides had rested, DeWhitt "renewed" his motion "in the form of a motion to dismiss the information. . . ." Tr. at 256. The trial court denied this motion also. The jury found DeWhitt guilty as charged. Following a sentencing hearing held on May 20, 2004, the trial court sentenced DeWhitt to three years; one year executed and served upon in-home detention, and two years suspended and served on probation. The trial court also imposed a $10,000 fine. DeWhitt filed a notice of appeal on June 18, 2004.
DeWhitt claims that the evidence cannot support his conviction. Specifically, he claims that the victim, Eads, created the substantial risk of bodily injury. Upon review of challenges to the sufficiency of the evidence, we neither reweigh evidence nor reassess the credibility of witnesses. Kien v. State, 782 N.E.2d 398, 407 (Ind.Ct.App.2003), trans. denied. Instead, considering only the evidence which supports the jury's verdict and any reasonable inferences which the jury may have drawn therefrom, we will affirm the conviction if there is substantial evidence of probative value from which the jury could reasonably conclude that the defendant was guilty of the crime charged beyond a reasonable doubt. Id.
DeWhitt was charged pursuant to Indiana Code § 35-42-2-2, which provides in relevant part:
"(b) A person who recklessly, knowingly, or intentionally performs:
(1) an act that creates a substantial risk of bodily injury to another person . . .
* * *
commits criminal recklessness. Except as provided in subsection (c), criminal recklessness is a Class B misdemeanor.
(c) The offense of criminal recklessness as defined in subsection (b) is:
(1) a Class A misdemeanor if the conduct includes the use of a vehicle;
(2) a Class D felony if it is committed while armed with a deadly weapon; or
(3) a Class C felony if it is committed by shooting a firearm from a vehicle into an inhabited dwelling or other building or place where people are likely to gather."3
According to DeWhitt, while he drove his vehicle at a low rate of speed Eads came out of the office and attempted to close the gate to the impound lot. "It is only at this point that DeWhitt hits the gate notwithstanding the fact that he tried to swerve to avoid colliding with it." Appellant's Br. at 7. DeWhitt argues that had Eads remained in the office and not tried to stop him from leaving the lot, despite DeWhitt's refusal to pay the towing fee, no substantial risk of bodily injury would have occurred. We cannot agree with this reasoning. First, DeWhitt asks us to look at facts which are not favorable to the verdict. The facts favoring the verdict reveal that DeWhitt refused to pay the towing fees, ignored the warnings of the employees not to leave, and rammed the gate when they tried to prevent him from leaving. Miller testified that she heard tires squealing and the engine "revving." Tr. at 123. As DeWhitt rammed the gate, going "pretty fast," he struck Eads in the leg. Tr. at 167. The jury could reasonably conclude from this evidence that it was DeWhitt, not Eads, who created the substantial risk of bodily injury necessary to sustain the criminal recklessness conviction.
DeWhitt's references to Micinski v. State, 487 N.E.2d 150 (Ind.1986), and Abney v. State, 766 N.E.2d 1175 (Ind.2002), are unavailing. In the former case, defendant Micinski was charged with, among other things, two counts of driving under the influence causing bodily injury. Micinski had been drinking "more than he should have" and decided nevertheless to drive his car home. 487 N.E.2d at 151. As he was driving he struck two students who were walking along the road, seriously injuring them. Upon appeal, one of the issues presented by Micinski was that the evidence was insufficient to support his convictions for driving under the influence causing bodily injury in that there was no proof that his intoxication directly and proximately caused the injuries to the students. The controlling statute at that time provided that it was a Class D felony for a person to operate a motor vehicle while intoxicated if the offense "results in serious bodily injury... other than death, to another person." Id. at 153 (citing Ind.Code § 9-4-1-54(b)(2) (1981)).
Upon transfer, our Supreme Court held that the statute did not require that the driver's intoxication be what caused the defendant to hit the victim. Id. at 154. Instead, the court stated:
Id. (emphasis supplied).
The court then noted, "This is not to say that a drunk driver who hits a child who has run out from between two parked cars is not entitled to ask a jury to find him not guilty because there is a reasonable doubt whether he caused the collision." Id. Moreover, the court stated that the analysis of the statute should focus on the driver's acts and not on speculation as to whether he could have stopped it had he been sober. Id. Thus, the statute had two elements: (1) that the defendant was driving while intoxicated; and (2) that his act of doing so resulted in serious bodily injury to another person. Id. The court reasoned that the jury, having heard the circumstantial evidence regarding the accident, could have reasonably concluded that Micinski had driven under the influence and that he caused an accident in which there was bodily injury. Id. Therefore, the court affirmed Micinski's convictions on these counts. Id.
In Abney, the defendant had been drinking at a tavern, and as he drove home, he hit a bicyclist who died at the scene. Despite having a shattered windshield, a deployed airbag, and a caved-in roof, Abney continued to drive home. When eventually stopped by police, Abney admitted to having hit something but claimed not to know what it was. He was charged with operating a motor vehicle while intoxicated causing death, operating a...
To continue reading
Request your trial
-
Watts v. State, No. 45A03-0506-CR-249 (Ind. App. 9/7/2006)
...State, 838 N.E.2d 1019, 1020 (Ind. 2005); Walker v. State, 843 N.E.2d 50, 55 (Ind. Ct. App. 2006), trans. denied; DeWhitt v. State, 829 N.E.2d 1055, 1067 (Ind. Ct. App. 2005), reh'g The judgment of the trial court is affirmed. BAKER, J., and MAY, J., concur. 1. Ind. Code § 35-42-1-3 (Burns ......
-
Cummings v. State, No. 13A04-0501-CR-43 (IN 5/17/2006)
...fails to sustain that burden in its case-in-chief, it is error for the trial court to deny a T.R. 50 motion. DeWhitt v. State, 829 N.E.2d 1055, 1063 (Ind. Ct. App. 2005), reh'g denied. It would thus seem to follow that a defendant need not sit silently and risk a jury conviction in such cir......
-
Lemond v. State
...of counsel, because "such a claim often requires the development of new facts not present in the trial record." DeWhitt v. State, 829 N.E.2d 1055, 1065 n. 7 (Ind.Ct.App.2005). A defendant may raise a claim of ineffective assistance on direct appeal, but that will foreclose collateral review......
-
Henson v. State
...find ‘that the vehicle can be a deadly weapon if used or intended to be used in [such] a manner.’ " Id.(quoting DeWhitt v. State, 829 N.E.2d 1055, 1064 (Ind. Ct. App. 2005) (emphasis added)). But, as the State points out, the trial court did so instruct the jury. Henson has not demonstrated......