Taylor v. State, 4-1282A384

CourtCourt of Appeals of Indiana
Citation457 N.E.2d 594
Docket NumberNo. 4-1282A384,4-1282A384
PartiesLaurel E. TAYLOR, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
Decision Date19 December 1983

Howard S. Grimm, Jr., Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., G. Douglas Seidman, Deputy Atty. Gen., Indianapolis, for appellee.

YOUNG, Judge.

After trial by jury, defendant-appellant Laurel Taylor was convicted of Reckless Homicide 1 and sentenced to six years imprisonment. In appealing the conviction, Taylor raises the following issues: 2

1) whether the evidence is sufficient to support the verdict; and

2) whether the court erred in prohibiting Taylor's counsel from discussing the difference between negligence and recklessness during final argument.

In reviewing Taylor's first claim, we may examine only the evidence most favorable to the State and any reasonable inferences which may be drawn therefrom. Porter v. State, (1982) Ind.App., 440 N.E.2d 690. Such evidence, as reflected in the record, reveals that on the evening of October 15, 1981, Taylor was northbound on Alber Road when he ran a stop sign and collided with a vehicle travelling west on U.S. 24. The speed limit on Alber Road was thirty miles per hour; Taylor was travelling at approximately seventy miles per hour, according to the testimony of eyewitness Randy Curless. 3 Both the driver and the passenger in the westbound vehicle died as a result of the collision.

Citing Hall v. State, (1977) 174 Ind.App. 334, 367 N.E.2d 1103, the State refutes Taylor's claim of insufficiency, correctly claiming that excessive speed and the fact that a defendant had been drinking tend to show recklessness. While it is true Taylor testified he had consumed two beers on the day of the collision, that fact is completely irrelevant to the determination of recklessness in this case. In addition to Reckless Homicide, Taylor was also charged with two counts of Driving While Intoxicated of which he was acquitted. The Indiana Code defines "intoxicated" as follows:

"Intoxicated" means under the influence of:

(1) alcohol;

(2) a controlled substance;

(3) any drug other than alcohol or a controlled substance; or

(4) any combination of alcohol, controlled substances, or drugs;

such that there is an impaired condition of thought and action and the loss of normal control of a person's faculties to such an extent as to endanger any person. Ind.Code 9-4-1-54 (emphasis added).

Although the record in this case does not include a copy of the instructions read to the jury, during closing arguments the prosecutor read one of those instructions; it defined "intoxicated" in the same manner as the above-cited statute. Because the jury found Taylor not guilty of Driving While Intoxicated, we must therefore conclude it found his driving ability was not impaired by alcohol consumption. It follows that Taylor's admitted consumption of two beers on the day of the collision in no way established or even tends to prove he was driving in a reckless manner. 4 Any evidence of his drinking is irrelevant to the reckless homicide conviction in light of his acquittal on the driving while intoxicated charges. 5 Therefore, we may consider only the fact that Taylor was driving approximately forty miles per hour over the posted speed limit in determining whether he acted recklessly. 6

We have found no Indiana cases which directly answer our query. Other jurisdictions are split on the issue of whether driving at an excessive rate of speed constitutes recklessness and, in some states, that question has been answered by the legislature. See generally 61A C.J.S. Motor Vehicles Secs. 609, 610, 657(6) (1970).

Although our legislature has not specifically addressed the issue with regard to Reckless Homicide, it has defined Reckless Driving in the following manner:

A person operating a vehicle who recklessly:

(1) drives at such an unreasonably high rate of speed, or at such an unreasonably low rate of speed, under the circumstances, as to endanger the safety or the property of others, or as to block the proper flow of traffic;

(2) passes another vehicle from the rear while on a slope or on a curve where vision is obstructed for a distance of less than five hundred (500) feet ahead;

(3) drives in and out of a line of traffic, except as otherwise permitted; or

(4) speeds up or refuses to give one-half ( 1/2) of the roadway to a driver overtaking and desiring to pass;

commits a Class B misdemeanor; and, if the offense results in damage to the property of another person, the court shall recommend the suspension of the current driving license of the person for a fixed period of not less than thirty (30) days nor more than one (1) year. Ind.Code 9-4-1-56.1 7 (emphasis added).

Initially, it would appear the Reckless Driving statute is of minimal assistance in resolving the issue before us, given the use therein of the word "recklessly." We believe, however, that the adverb "recklessly" was employed to lend flexibility to the operation of the statute. As we interpret the statute, Reckless Driving may be based on any one of the enumerated acts, but proof thereof creates a presumption of recklessness which the defendant may rebut. Therefore, in certain circumstances, operating a motor vehicle at an "unreasonably high rate of speed" may be sufficient to support a conviction of Reckless Driving.

Although the legislature elected not to define "unreasonably high rate of speed," it is clear that driving forty miles per hour in excess of the speed limit is unreasonable and reckless. The dangerousness of Taylor's speeding vehicle was exacerbated by the fact that the pavement was wet and by the fact that he was unfamiliar with the area.

Further, our determination of Taylor's recklessness would stand absent the provisions of the Reckless Driving statute. The general intent necessary to support a conviction of Reckless Homicide has been defined as a choice of action, either with the knowledge of serious danger to others involved therein or with the knowledge of facts which would disclose danger to a reasonable person. Salrin v. State, (1981) Ind.App., 419 N.E.2d 1351. See also Shorter v. State, (1954) 234 Ind. 1, 122 N.E.2d 847 (appeal from convictions of Reckless Driving and Driving While Intoxicated); Beeman v. State, (1953) 232 Ind. 683, 115 N.E.2d 919.

The circumstances of this case reveal the dangerous nature of Taylor's actions. Speed limits are regulated for the protection of public safety and are assessed with regard to particular road conditions. Failure to adhere to the speed limit, however, does not necessarily constitute recklessness. A slight deviation from the limit does not thereby create a great risk of danger and, alternatively, it is conceivable that some violations are due to inadvertence. We cannot state that either is true in Taylor's case, given the substantial differential between the speed of his vehicle and the speed limit.

Taylor does not directly challenge the evidence of recklessness by arguing any justification for his speed or by stating any claim his speeding was involuntary. Rather, he provides us with an alternative theory as to the cause of the collision. His argument is of no avail, as we have found evidence of probative value to support the conviction and may not reweigh the evidence. Napier v. State, (1983) Ind., 445 N.E.2d 1361; Jackson v. State, (1980) Ind., 402 N.E.2d 947.

In the absence of any rebuttal evidence, we must conclude that the evidence is sufficient to support the conviction of Reckless Homicide, and Taylor is not entitled to an acquittal. We do believe, however, that Taylor's second issue is of merit and entitles him to a new trial.

During final argument, the court prohibited Taylor's counsel from arguing the difference between negligence and recklessness to the jury, stating that negligence was irrelevant to the determination of whether Taylor acted recklessly. We disagree.

It is well-settled that the proper scope of final argument is within the trial court's sound discretion. Vanyo v. State, (1983) Ind., 450 N.E.2d 524; Roose v. State, (1983) Ind., 449 N.E.2d 594; Whitacre v. State, (1980) Ind., 412 N.E.2d 1202. On appeal, we will not find the trial court abused its discretion unless its decision is clearly against the logic and effect of the facts and circumstances before it. State v. Cowdell, (1982) Ind.App., 421 N.E.2d 667; Winker v. State, (1977) 174 Ind.App. 258, 367 N.E.2d 26. In seeking reversal of a conviction, however, it is incumbent upon the appellant to establish not only the trial court's abuse of discretion but also any resulting prejudice to his or her rights. Jenkins v. State, (1975) 263 Ind. 589, 335 N.E.2d 215; Owens v. State, (1975) 263 Ind. 487, 333 N.E.2d 745.

In first determining whether the court abused its discretion, we note that it is proper for counsel to argue both law and facts, Indiana Constitution, Art. 1 Sec. 19; Inman v. State, (1979) 271 Ind. 491, 393 N.E.2d 767; Horn v. State, (1978) 176 Ind.App. 527, 376 N.E.2d 512, including any argument as to position or conclusions based on the attorney's analysis of the evidence. Flynn v. State, (1978) 177 Ind.App. 360, 379 N.E.2d 548. In certain circumstances, the trial court may limit such argument without abusing its discretion. (The trial court may prohibit counsel from reading cases or other legal authorities to the jury. Lax v. State, (1981) Ind., 414 N.E.2d 555; counsel does not have the right to misstate the law or argue a theory unsupported by the evidence. Kilgore v. State, (1976) 170 Ind.App. 569, 354 N.E.2d 254; nor may counsel express his or her personal opinion as to the defendant's guilt or innocence. Flynn v. State, supra.)

We cannot agree with the trial court that an argumentative comparison of negligence and recklessness was irrelevant. See ...

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