Tipton v. State

• Decision Date: 21 December 2012
• Docket Number: No. 47A01–1201–CR–4.,47A01–1201–CR–4.
• Citation: 981 N.E.2d 103
• Parties: Kenneth S. TIPTON, Appellant–Defendant, v. STATE of Indiana, Appellee–Plaintiff.
• Court: Indiana Appellate Court

981 N.E.2d 103

Kenneth S. TIPTON, Appellant–Defendant,

v.STATE of Indiana, Appellee–Plaintiff.

No. 47A01–1201–CR–4.

Court of Appeals of Indiana.

Dec. 21, 2012.

Lorinda Meier Youngcourt, Lawrence County Public Defender Agency, Bedford, IN, Attorney for Appellant.

Gregory F. Zoeller, Attorney General of Indiana, Aaron J. Spolarich, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

MAY, Judge.

Kenneth Tipton was convicted of Class C felony criminal recklessness; ¹ Class D felony dealing in marijuana; ² and being an habitual offender ³ after he shot at a house during a standoff with police. He argues on appeal the evidence was insufficient to convict him of criminal recklessness because that offense requires proof there was a risk of injury to a person, but nobody was in the house when he shot at it.⁴ We affirm.

FACTS AND PROCEDURAL HISTORY⁵

On August 16, 2009, two Bedford police officers went to Tipton's house to arrest him after his wife reported a domestic battery. Tipton's brother Donnie allowed the officers to enter the house, and he told the officers he was there alone. As one officer walked toward the hallway, he saw Tipton coming toward him with a gun. The officer yelled “gun” and both officers tried to exit through the front door. (Tr. at 1639.) Tipton fired a shot while the officers were still in the house.

The officers ran in different directions when they left the house, and they sought cover behind trucks. Tipton fired at one of the officers, and then retreated into the house. The other officer called for reinforcements. Tipton allowed his brother to leave the house, but then he fired another shot. After additional officers arrived, Tipton fired more shots, two of which hit a police car. Some shots hit the house across the street. The residents, Adam Mullis and his wife, were not home at the time.

Police spoke to Tipton on the telephone, and Tipton agreed he would surrender if he were charged with only a minor offense. An officer at the police station wrote a letter saying Tipton would be charged only with criminal recklessness if he surrendered, and the officer read the letter to Tipton over the telephone. Tipton surrendered, but then was charged with criminal recklessness along with three other charges: attempted murder,⁶ dealing in marijuana,⁷ and being an habitual offender.

A jury acquitted Tipton of attempted murder but found him guilty of the other charges. The court sentenced him to a total of twenty-three years.

DISCUSSION AND DECISION

A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness. Ind.Code § 35–42–2–2. The offense is a Class C felony if it is committed “by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather.” Id. Tipton argues the State did not prove the element “substantial risk of bodily injury to another person” because nobody was in the dwelling when Tipton shot at it.

The State initially notes, correctly, that the plain language of the statute does not require that the person who faces the risk of injury be an inhabitant of the house, nor does it explicitly require “any person be physically inside of the building at the exact moment of the defendant's reckless action.” (Br. of Appellee at 13.) As there were a number of other persons who were at risk, specifically all the police officers, the State argues the statutory requirements are satisfied.

We decline to affirm on that ground, as that is not the way the State charged Tipton or prosecuted him. The charging information stated Tipton performed “an act that created a substantial risk of bodily injury to another person by shooting a firearm into an inhabited dwelling, to wit [the Mullis residence].” (App. at 19.) It did not allege the police officers were at risk. In its opening statement, the State told the jury “the evidence is going to show you and you're going to be firmly convinced that he committed criminal recklessness. When he's shootin [sic] in the inhabited house behind him, the place where his neighbors live gets shot up.” (Tr. at 601.) In closing argument, the State argued to the jury that:

[Tipton] surrendered, but not before the damage was done, not before ... the home of Adam Mullis, the place where Adam Mullis slept, the place where Adam Mullis, [sic] had food in his refrigerator, a TV to watch, a couch to sit on in the living room. [Tipton] surrendered but not before he had shot that house.... Adam Mullis lived there. He inhabited that house and Kenny Tipton's shooting was reckless.⁸

( Id. at 1882–83) (footnote added).

We must therefore determine whether Tipton's acts created “substantial risk of bodily injury” to the Mullises. They did. We reviewed our decisions on the object of “substantial risk” in Smith v. State, 688 N.E.2d 1289 (Ind.Ct.App.1997). Smith test fired his pistol at an old car parked in his backyard. Several homes were located within a fifty-yard radius of the old car. Inside one home that was in Smith's direct line of fire, a light and a television were on, but a police officer could not get anyone inside that house to come to the door. There was a “large mass of people,” id. at 1290, walking on the street near Smith's home. They were leaving a festival at a nearby park and were in range of Smith's gunfire. Smith contended the State presented insufficient evidence his conduct created a substantial risk of bodily injury.

Distinguishing decisions that found no such risk, we disagreed:

“Substantial” risk is risk that has “substance or actual existence.” Boushehry v. State, 648 N.E.2d 1174, 1177 (Ind.Ct.App.1995) [, reh'g denied, trans. denied ] (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 “nonexistent hunters in Elliott,” we concluded that the possibility of a motorist passing by on Shelbyville Road at the time the defendant fired his gun 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 gunfire. 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 [sic] criminal recklessness.

Id. at 1291. In the case before us, as in Smith, a reasonable inference could have been drawn that a person might have been in the Mullis home when Tipton shot at it.

The statute under which Tipton was charged requires there be an inhabited dwelling: “criminal recklessness is a Class C felony if it is committed by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather.” ⁹Ind.Code § 35–42–2–2. Tipton argues the house was not the “inhabited dwelling” the statute requires because nobody was home. He notes a statutory definition of “dwelling” ¹⁰ as “a building, structure, or other enclosed space, permanent or temporary, movable or fixed, that is a person's home or place of lodging,” Ind.Code § 35–31.5–2–107, and claims: “If the Legislature intended to elevate criminal reckless [sic] to a class C felony simply upon a showing that the building or structure shot into was a ‘person's home or place of lodging,’ then the word dwelling would have sufficed.” (Reply Br. of Appellant at 4.) CompareInd.Code § 35–43–2–1 (burglary is a Class B felony if it is committed while armed with a deadly weapon or the building or structure is a...