Reed v. State

• Decision Date: 28 March 1979
• Docket Number: No. 2-477A146,2-477A146
• Parties: James REED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 82

387 N.E.2d 82

180 Ind.App. 5

James REED, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 2-477A146.

Court of Appeals of Indiana, Fourth District.

March 28, 1979.

Robert W. Hammerle, Indianapolis, for appellant.

Theo. L. Sendak, Atty. Gen., Kenneth R. Stamm, Deputy Atty. Gen., Indianapolis, for appellee.

MILLER, Judge.

Defendant Reed was convicted by a jury of causing the death of another while driving under the influence of liquor and sentenced to five years imprisonment with a fine of $1,000.00.

We reverse because the State failed to present any substantial evidence that Defendant's unlawful conduct was the proximate cause of an injury to the victim which ultimately resulted in her death.

Defendant was charged with violation of IC 9-4-1-54(b)1 which reads in pertinent part as follows:

"Any person who while under the influence of intoxicating liquor * * * operates or drives a vehicle and when so operating or driving causes the death of another person, is guilty of a felony * * *."

The language of the indictment, omitting formal parts, was as follows:

"* * * JAMES REED, on or about the 5th day of August, A.D., 1976, at and in the County of Marion and in the State of Indiana, did unlawfully and feloniously drive and operate a motor vehicle, to-wit: A 1968 Ford automobile, upon a public street in the City of Indianapolis, County of Marion, State of Indiana, to-wit: On East 9th Street, 75 feet east of its intersection with North Park Avenue, while under the influence of intoxicating liquor and thereby caused the death of EDNA FINKBAUM, to-wit: By driving and operating the aforesaid motor vehicle as aforesaid into and against with great force and violence two (2) lawfully parked automobiles and thereby inflicted mortal wounds and injuries in and upon the body of the said EDNA FINKBAUM, a passenger in the automobile being operated as aforesaid by the said JAMES REED, of which mortal wounds and injuries the said EDNA FINKBAUM sickened and lanquished, and while so languishing, did in the said County of Marion, State of Indiana on the 6th day of August, A.D. 1976, die, and the mortal wounds, injuries and death of the said EDNA FINKBAUM were proximately caused by and were the direct results of the aforementioned unlawful acts of the said JAMES REED in driving and operating said 1968 Ford automobile as aforesaid, all of which is contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana."

The State presented four witnesses at the trial. Two neighbor eyewitnesses testified that on August 5, 1976, at 4:00 p. m., the Defendant, driving his 1968 Ford stationwagon with Edna Finkbaum as a passenger, started his car from a parked position, struck two cars parked nearby and, finally, accelerated to a speed of between 35 and 45 m. p. h. and drove directly into a brick building. Neither eyewitness testified as to any injuries received by Ms. Finkbaum nor did they indicate where she was seated in the stationwagon. One of said witnesses established the fact that Defendant was intoxicated.

Pathologist James A. Benz performed an autopsy on Ms. Finkbaum two days later at noon on August 7, 1976. He testified from hospital records that she had died the day before, on August 6th at 7:50 p. m. From his own examination it was his opinion that Ms. Finkbaum died as a result of a closed head injury, that is, a blow to the head which resulted in injuries to the brain and the formation of a blood clot which had been surgically removed before she died. He noted that such an injury is produced from a blow to the head or by the head striking a fixed object. The doctor then answered the following questions:

Q. "Doctor, if I told you that the decedent was involved in an automobile accident in which the automobile hit a fixed object at a speed of forty miles an hour, would that be consistent with the injuries sustained?

A. "Yes, sir.

Q. "Could this injury have been sustained in a light fall?

A. "It depends on your definition of a light fall.

Q. "Well, if a person fell and hit his head, say lightly on the ground.

A. "Well, I have seen subdural hematomas caused by people falling and striking their head on the ground, yes, sir.

Q. "Do you have any opinion as to whether this was caused in such a manner?

A. "No, sir."

It was Dr. Benz' opinion that the blow occurred a day or two before death, although it was possible that it occurred as much as two days before the automobile accident. He noted that the surgeon who observed the blood clot upon its removal could make a more accurate estimate of when the injury occurred.

The State's last witness was a police officer who arrived at the scene shortly after the accident. He was able to form an opinion that the Defendant was then under the influence of liquor. He observed the scene of the accident and the three wrecked automobiles, including Defendant's car which was still embedded in the building. On cross-examination he related a conversation with medical technicians at the scene who told him they did not believe Ms. Finkbaum was seriously injured and that she had sustained a knee injury.

The defense called three witnesses who resided in the same apartment building with the Defendant but were not witnesses to the accident. The purpose of their testimony was to attest to the fact the deceased was an alcoholic and had been observed falling down, due to her intoxication, on numerous occasions including an incident fifteen minutes before the accident when she fell and hit the porch steps.

DECISION:

Initially, we stress the fact that we are fully aware of our appellate responsibility to consider only that evidence most favorable to the State and all reasonable inferences drawn therefrom in determining the sufficiency of the evidence. Also, if there is substantial evidence of probative value which would permit a reasonable trier of fact to find the existence of each element of the offense beyond a reasonable doubt the judgment must be affirmed. Schilling v. State (1978), Ind., 376 N.E.2d 1142; Burris v. State (1978), Ind.App., 382 N.E.2d 963.

We have no difficulty in finding that there was very substantial evidence that the Defendant was driving his vehicle while under the influence of intoxicating liquor and as a result of his intoxication drove his car at an excessive speed directly into a brick wall. We fail, however, to find any substantive evidence that Ms. Finkbaum, a passenger in the car, received a head injury or, for that matter, any injury in the accident which resulted in her death.

In a homicide case the State must present evidence that the defendant inflicted, or caused to be inflicted, an injury upon the victim which contributed mediately or immediately to his death. Miller v. State (1975), 263 Ind. 595, 335 N.E.2d 206; Bivins v. State (1970), 254 Ind. 184, 258 N.E.2d 644; Wahl v. State (1951), 229 Ind. 521, 98 N.E.2d 671; Hicks v. State (1938), 213 Ind. 277, 11 N.E.2d 171, 12 N.E.2d 501, cert. den. 304 U.S. 564, 58 S.Ct. 951, 82 L.Ed. 1531. Further, in reckless homicide cases, it is settled that the State must prove the defendant's unlawful conduct (reckless driving) is the direct and proximate cause of the death of the victim. Carter v. State (1968), 250 Ind. 50, 234 N.E.2d 850; State v. Kelsey (1975), Ind.App., 325 N.E.2d 218. Such rule is equally applicable here. Both the statute, IC 9-4-1-54(b)1, Supra, and the charging indictment required proof that the alleged "mortal wounds, injuries and death" of Ms. Finkbaum were proximately caused by and the direct result of the unlawful acts of the Defendant.

Thus, simply stated, it was incumbent upon the State in this case to prove the deceased received a blow to her head in the automobile crash. This the State failed to do. In fact, the only evidence from witnesses at the scene, although hearsay, indicated she had received a knee injury and otherwise was not seriously injured. There was no evidence that she was taken...