Smith v. State
| Decision Date | 11 December 1997 |
| Docket Number | No. 49A02-9701-CR-14,49A02-9701-CR-14 |
| Citation | 688 N.E.2d 1289 |
| Court | Indiana Appellate Court |
| Parties | Curtis Leon SMITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
Curtis Leon Smith ("Smith") appeals his conviction for Criminal Recklessness, as a Class D felony, following a jury trial. The sole issue presented for our review is whether there was sufficient evidence to support his conviction. We affirm.
On March 18, 1996, at approximately 7:30 p.m., Smith repeatedly test fired his Tech 9 millimeter pistol at an old car parked in his backyard. Indianapolis Police Officer Scott Baldwin arrived at the scene in response to a radio dispatch indicating that shots had been fired in that neighborhood. Upon investigation, Officer Baldwin observed that approximately ten residential homes were located within a fifty-yard radius of the old car. Officer Baldwin became particularly concerned when he noticed that one home that was in Smith's direct line of fire had both a light and a television on inside. Despite his attempts, Officer Baldwin could not get anyone inside that house to come to the door. Also during his investigation, Officer Baldwin observed a large mass of people walking on the street near Smith's home. They were leaving a festival which had taken place at a park nearby. The people in the street were clearly in gunfire range of Smith's test firing activity.
When reviewing the sufficiency of the evidence, we neither reweigh the evidence nor determine the credibility of witnesses. Smith v. State, 678 N.E.2d 1152, 1155 (Ind.Ct.App.1997), trans. denied. Instead we look to the evidence most favorable to the verdict together with all reasonable inferences to be drawn therefrom. Id. If there exists substantial evidence of probative value to establish every material element of the offense beyond a reasonable doubt, we will not disturb the verdict. Griepenstroh v. State, 629 N.E.2d 887, 889 (Ind.Ct.App.1994), trans. denied.
To prove the offense of criminal recklessness, the State was required to prove that Smith recklessly, knowingly, or intentionally performed an act that created a substantial risk of bodily injury to another person. IND.CODE § 35-42-2-2(b). Such offense is a Class D felony if it is committed while armed with a deadly weapon. Id.
Smith contends that the State presented insufficient evidence that his conduct created a "substantial risk of bodily injury." "Substantial" risk is risk that has "substance or actual existence." Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind.Ct.App.1995) (citing Elliott v. State, 560 N.E.2d 1266, 1267 (Ind.Ct.App.1990)). Smith points to our opinions in Boushehry and Elliott in support of his argument that the State relied on mere speculation that his actions posed a substantial risk of bodily injury to another person. However, both cases relied upon by Smith are distinguishable from the instant case.
In Elliott, the defendant fired five pistol shots from his place of business over uninhabited fields and woodlands which bordered his business. Elliott, 560 N.E.2d at 1267. Some of Elliott's employees were present at the time; however, none of the employees were in his line of fire. Id. Moreover, although hunters were known to hunt in the adjacent fields and woodlands, no evidence was presented that anyone was present in the woodlands or fields. Id. Accordingly, we reversed Elliot's criminal recklessness conviction concluding that his conduct did not create a substantial risk of bodily injury to another person "because there were no people in or near his line of fire." Id.
Similarly, in Boushehry, the defendant went to a vacant lot and fired two or three shots from his .22 caliber rifle at some geese. Boushehry, 648 N.E.2d at 1176. The defendant's shots were fired in the direction of Shelbyville Road, which bordered the vacant lot. Id. As with the "non-existent hunters in Elliott," we concluded that the possibility of a motorist passing by on Shelbyville Road at the time the defendant fired his gun across presented "only a remote risk of bodily injury." Id. at 1177. Because the record contained no evidence that anyone was in or near the defendant's line of fire, we held that the State failed to prove the actual existence of substantial risk of bodily injury to another person. Id.
Unlike in Boushehry and Elliott, the evidence and reasonable inferences to be drawn therefrom indicate that there were individuals in or near Smith's line of fire. Here, the State presented evidence that Smith test fired his gun at least six times in his backyard by shooting at an old car. Officer Baldwin testified that there were approximately ten residential homes located within fifty yards of the car, and that one of the homes was in the direct line of Smith's gun fire. Although nobody answered the door of that home upon Officer Baldwin's investigation, Officer Baldwin stated that he noticed both a light and a television on in the home, creating a reasonable inference that a person was in the home at the time of the Smith's activity. Moreover, the record shows that a large mass of people inhabited the street near Smith's backyard at the time of his test firing because a festival had just ended at a park nearby. Indeed, Officer Baldwin testified that Smith's test firing activity occurred within a "stone's throw" of these people.
Based upon this evidence, the jury could reasonably infer that Smith's conduct created an actual and substantial risk of bodily injury to another person. There was sufficient evidence to support his conviction for criminal recklessness.
Affirmed.
STATON, J., dissents and files separate opinion.
I dissent for two reasons.
First, there is insufficient evidence that Curtis Smith created a "substantial risk of bodily injury to another person."
Secondly, the rationale employed by the Majority is misplaced when Boushehry v. State, 648 N.E.2d 1174 (Ind.Ct.App.1995) and Elliott v. State, 560 N.E.2d 1266 (Ind.Ct.App.1990) are cited in support of their rationale. Both of these cases should be disapproved by the Indiana Supreme Court because they misinterpret the intent of the legislature. The intent of IND.CODE § 35-42-2-2(b) is to prohibit conduct which creates a "substantial risk of bodily injury" to another person. The emphasis should be placed upon the "substantial risk" of bodily injury and not the...
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