Springer v. State, 31A01-0110-CR-368.

• Decision Date: 03 December 2002
• Docket Number: No. 31A01-0110-CR-368.,31A01-0110-CR-368.
• Citation: 779 N.E.2d 555
• Parties: Steven S. SPRINGER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee.
• Court: Indiana Appellate Court

779 N.E.2d 555

Steven S. SPRINGER, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee.

No. 31A01-0110-CR-368.

Court of Appeals of Indiana.

December 3, 2002.

Matthew Jon McGovern, Louisville, KY, Attorney for Appellant.

Steve Carter, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorney for Appellee.

OPINION

SULLIVAN, Judge.

Steven S. Springer, Jr., appeals from the jury's verdict finding him guilty of Criminal Recklessness, a Class C felony.¹ He presents two issues for our review which we restate as: (1) whether the trial court erred in refusing three of Springer's tendered jury instructions and (2) whether the restitution order was appropriate.

We reverse.

The facts most favorable to the judgment reveal that Phillip Crain had a party on the night of November 5, 1999 at his parent's home. Springer's son, who was not invited to the party, showed up and was told to leave. When he refused, he was attacked and beaten by Phillip. Springer's son then left the party and went home. The following morning, Springer learned that his son had been beaten-up. He and his wife went to the Crain residence to confront Phillip. Before leaving his home, Springer retrieved his handgun to carry with him.

Upon arriving at the Crain residence, Springer loaded a bullet into the chamber of the handgun. Springer knocked on the door and hollered at the boys inside to answer the door. Springer gained entry into the home after one of the boys who was at the residence opened the door. Once inside, Springer heard noise coming from behind the basement door. He approached the door and opened it. According to Springer, as he opened the door, he stepped back and stumbled. When he stumbled, the gun fired.² The bullet passed through a refrigerator and a wall before striking an individual in the chest. Springer then took the wounded individual to the hospital.

I Jury Instructions

Springer contends that the trial court erred in refusing his tendered jury instructions on negligence and accident. Springer contends that the instructions were necessary to explain his defense to the criminal recklessness charge. Trial courts are given broad discretion in instruction of the jury. Patton v. State, 760 N.E.2d 672, 674 (Ind.Ct.App. 2002). The trial court's decision in instructing the jury is reviewed for an abuse of discretion. Id. In instructing a jury, the trial court has a statutory duty to state to the jury all matters of law which are necessary for its information in giving its verdict. Ind.Code § 35-37-2-2(5) (Burns Code Ed. Repl.1998); Dayhuff v. State, 545 N.E.2d 1100, 1102 (Ind.Ct.App.1989),trans. denied. "As a general rule, a defendant in a criminal case is entitled to have the jury instructed on any theory of defense which has some foundation in the evidence." Dayhuff, 545 N.E.2d at 1102. This is so even if the evidence supporting the defense is weak and inconsistent. Id. However, the evidence must have some probative value to support the defense. Id.

In Sipp v. State, 514 N.E.2d 330 (Ind.Ct. App.1987), this court reviewed a trial court's failure to give the jury the defendant's tendered instructions on negligence as his defense to reckless homicide. In determining that the trial court erred in refusing to give some of the tendered instructions, this court relied upon the decision in Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962), wherein our Supreme Court addressed appellant's contention that the trial court erred in failing to give his tendered instructions on negligence. The appellant had been charged with reckless homicide and involuntary manslaughter following an accident in which his vehicle hit another vehicle head-on, resulting in the death of two occupants in the other vehicle. Cichos tendered instructions stating that his negligence could not give rise to criminal liability for the crimes of reckless homicide or involuntary manslaughter. In reaching its decision, our Supreme Court stated:

"Whether the evidence in this case establishes that the deaths alleged in the indictment occurred from a mere accident, from negligent conduct or from willful and/or wanton misconduct so as to amount to recklessness, is dependent on the weight given the various aspects of the case and the evidence by the jury. The very purpose of the jury is to determine, after deliberation and pursuant to the court's instructions, the legal category into which the jury feels the defendant's conduct falls. The appellant's theory of the evidence and the law establishing such theory was never given to the jury in any instructions." Cichos, 243 Ind. at 192, 184 N.E.2d at 3.

The Supreme Court concluded by determining that the trial court's failure to give the tendered instructions constituted reversible error and remanded for a new trial. Id.

In Sipp, this court determined that the failure of the trial court to give the tendered instructions prevented Sipp from establishing his theory of the evidence and the law to the jury through any instructions. 514 N.E.2d at 332. This court determined that the tendered instructions on negligence were not covered by the instructions given by the trial court, which stated that accident was a defense unless the act was committed recklessly. Id. The failure to give the tendered negligence instructions was held to be reversible error, and the cause was remanded for a new trial. Id. Concurring in the decision, Judge Garrard stated:

"Thus, the court's refusal to give instructions as to what does not constitute recklessness is not rendered harmless because of the instruction given as to what would constitute recklessness. Indeed, I have no quarrel with holding that in cases where the understanding of a particular term is crucial, the court may not refuse a correctly drawn instruction that serves to amplify the definition by insuring that the jury understand the difference between the crucial conduct and some closely similar conduct. The purpose of instructions is to fairly advise the jury on the law applicable to the case." Id.

In refusing to give tendered instructions Number 2 and Number 3 to the jury, the trial court stated that the case was "not about negligence." Transcript at 437. The trial court further stated that the State did not have to prove negligence so the "instructions concerning negligence go to something that is not an issue before the jury." Id. As the trial court further elaborated, to say that Springer was negligent is the same as the jury finding that the State had not proved that Springer was reckless. To the trial court, finding Springer negligent is the same as the State not proving his recklessness.

The trial court's reasoning has merit. It is true that the State had to prove that Springer was reckless, and if it failed, the jury would be required to acquit Springer. It would not matter if the jury found that Springer was negligent so long as it did not find that he was reckless. However, as was true in Sipp and Cichos, the jury was dealing with an issue in which it was imperative that the jurors understand the difference between a party being negligent and a party being reckless. Springer argued throughout the trial that he was only negligent. During deliberations, the jury sent a note to the trial court requesting the legal definition of negligence. From this, we can deduce only that there was some question among the jury about whether Springer was negligent or reckless. Had the jury received an instruction defining negligence, the decision of the jury may have been different because the jury could have used the legal definition of negligence to aid in its deliberations. Based upon the holdings in Sipp and Cichos, Springer was warranted in his request to have the jury instructed on the negligence theory of his defense.

However, while the jury should have been instructed on Springer's negligence defense, the tendered instructions should have been given only if they meet the requirements set out for our review of the failure to give such instructions. When reviewing a trial court's decision to refuse a tendered instruction, this court considers: (1) whether the refused instruction is a correct statement of the law; (2) whether evidence supported giving the instruction; (3) whether the instruction repeats material adequately covered by other instructions; and (4) whether the substantial rights of the tendering party were prejudiced by the failure to give the instruction. McCarthy v. State, 751 N.E.2d 753, 755 (Ind.Ct.App.2001), trans. denied.

We begin by analyzing tendered Instruction No. 2, which states:

"Recklessly Defined

A person engages in conduct `recklessly' if he engages in the conduct in plain, conscious and unjustified disregard of the harm that might result therefrom, and the disregard involves a substantial deviation from acceptable standards of conduct. This requires the State to prove more than mere negligence on the behalf of the Accused." Appendix at 175.

The State contends that the instruction was an incorrect statement of the law because the last sentence of the definition noted that the State was required to prove more than mere negligence and that the instruction was adequately covered by Final Jury Instruction No. 5 which defined "recklessly." There is no dispute that the evidence supported the instruction. Also, the instruction as tendered defining "recklessly" was a correct statement of the law as it follows the statutory definition of "recklessly." See Ind.Code § 35-41-2-2(c) (Burns Code Ed. Repl.1998).

The State's contention that the last sentence to the instruction made it an incorrect statement of the law is unfounded. While the statutory definition of "recklessly" does not include a reference to negligence, it cannot be disputed that to prove a defendant was reckless the State must prove that the party was more than merely negligent. See Warner v. State, 577 N.E.2d 267, 269 (Ind.Ct.App.1991) (stating...