Whitaker v. State, 26A04-0204-CR-164.

Decision Date13 November 2002
Docket NumberNo. 26A04-0204-CR-164.,26A04-0204-CR-164.
Citation778 N.E.2d 423
PartiesJohn E. WHITAKER, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
CourtIndiana Appellate Court

Lynne D. Lidke, Thomas E. Farrell, A. Jack Finklea, Scopelitis, Garvin, Light & Hanson, Indianapolis, IN, Attorneys for Appellant.

Steve Carter, Attorney General of Indiana, Ellen H. Meilaender, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.

OPINION

BARNES, Judge.

Case Summary

John Whitaker appeals his conviction for reckless homicide, a Class C felony. We reverse.

Issue

The dispositive issue is whether there is sufficient evidence to sustain Whitaker's conviction.1

Facts

The evidence most favorable to the conviction reveals that on the morning of August 22, 2001, Whitaker traveled south in his tanker truck on State Road 57 in Gibson County, a two-lane highway. He followed two to four car lengths behind a car driven by Kim Cox and traveled at around sixty miles per hour, which was five miles per hour above the speed limit. At approximately 8:00 a.m., Cox began braking and signaled that she was going to turn left onto County Road 950 East. Whitaker did not attempt to apply his brakes or otherwise evade Cox until almost the precise moment he struck her car in the rear. This propelled Cox's car into the oncoming lane of traffic, where it was run over by a dump truck. Cox died instantly. Photographs taken at the scene indicate that the weather was clear and the pavement was dry. Toxicology reports did not reveal any illicit drug or alcohol consumption by Whitaker, who had begun work at 7:00 a.m. after sleeping in his cab the night before. There was no evidence of any mechanical defects in Whitaker's truck.

The State charged Whitaker with reckless homicide. After a jury trial conducted on February 25-27, 2002, Whitaker was convicted as charged. He now appeals.

Analysis

We acknowledge our traditionally deferential standard of review when considering questions of the sufficiency of the evidence to support a conviction. In reviewing a sufficiency claim, we neither reweigh the evidence nor assess the credibility of the witnesses. Love v. State, 761 N.E.2d 806, 810 (Ind.2002). We look to the evidence most favorable to the verdict and reasonable inferences drawn therefrom. Id. We will affirm the conviction if there is probative evidence from which a reasonable jury could have found the defendant guilty beyond a reasonable doubt. Id. Nevertheless, evidence of guilt of substantial and probative value, as required to affirm a conviction, requires more than a mere scintilla of evidence. Short v. State, 564 N.E.2d 553, 557 (Ind.Ct.App.1991). Evidence that only tends to support a conclusion of guilt is insufficient to sustain a conviction, as evidence must support the conclusion of guilt beyond a reasonable doubt. Id. (citing Vuncannon v. State, 254 Ind. 206, 258 N.E.2d 639 (1970)).

Indiana Code Section 35-42-1-5 provides that "[a] person who recklessly kills another human being commits reckless homicide, a class C felony." "A person engages in conduct `recklessly' if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct." Ind.Code § 35-41-2-2. "Proof that an accident arose out of the inadvertence, lack of attention, forgetfulness or thoughtfulness of the driver of a vehicle, or from an error of judgment on his part, will not support a charge of reckless homicide." Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953).

It is helpful to review some of the cases that have addressed the evidence necessary to sustain a conviction for reckless homicide arising out of a motor vehicle collision. The following are examples of cases where the fact patterns were held sufficient to sustain a reckless homicide conviction: Nichols v. State, 591 N.E.2d 134, 137-38 (Ind.1992) (driving while intoxicated and substantially across the centerline for an extended period of time); Anderson v. State, 743 N.E.2d 1273, 1279 (Ind.Ct.App.2001) (a police officer driving through a flashing yellow light at 100 miles per hour without his lights or siren activated); Carrigg v. State, 696 N.E.2d 392, 395 (Ind.Ct.App.1998),trans.denied. (driving 50 miles per hour down a narrow residential street with a 30 mile per hour speed limit and cars parked on both sides, while another person was standing on a running board, holding onto the driver's side mirror); Gibbs v. State, 677 N.E.2d 1106, 1109 (Ind.Ct.App.1997),trans.denied. (operating a vehicle on a very dark highway during the early morning hours without headlights) (but see opinion of Sullivan, J., dissenting, 677 N.E.2d at 1109-11); Green v. State, 650 N.E.2d 307, 309 (Ind.Ct.App. 1995) (consuming alcohol and later driving around a corner at approximately 100 miles per hour); Warner v. State, 577 N.E.2d 267, 269-70 (Ind.Ct.App.1991) (driving "erratically" and forty to fifty miles per hour where speed limit was thirty-five but snow and ice made twenty miles per hour the maximum safe speed); Hergenrother v. State, 425 N.E.2d 225, 228 (Ind.Ct.App.1981) (intentionally crossing the centerline for the purpose of greeting a friend according to a local custom).

On the other hand, the following cases held the facts were insufficient to support a reckless homicide conviction: DeVaney v. State, 259 Ind. 483, 493-94, 288 N.E.2d 732, 738-39 (1972) (driving while intoxicated and crossing the centerline without any indication of how long the defendant drove in the wrong lane); Seibert v. State, 239 Ind. 283, 286-89, 156 N.E.2d 878, 879-80 (1959) (attempting to pass another vehicle when the defendant's view was obstructed, in violation of the reckless driving statute); Johnson v. State, 164 Ind.App. 12, 20-21, 326 N.E.2d 637, 642-43 (1975) (similar to DeVaney). Whitaker also directs us to a case from Illinois whose facts are very similar to this case, People v. Frary, 36 Ill.App.3d 111, 343 N.E.2d 233 (1976). In that case, the defendant was convicted of involuntary manslaughter and reckless homicide, which in Illinois required a showing that the defendant operated his vehicle recklessly or wantonly so as to demonstrate an utter disregard for the safety of others under circumstances likely to cause injury. Id. at 114, 343 N.E.2d at 236. The evidence established the defendant was traveling ten to fifteen miles per hour over the speed limit, or approximately seventy-five miles per hour, and one witness testified that the defendant was following "awfully close" behind the motorcycle he struck. Id. The Appellate Court of Illinois concluded, "[t]he only improper conduct with which defendant can reasonably be charged is failure to maintain a safe interval and driving in excess of the speed limit, which we hold is insufficient in this case to prove beyond a reasonable doubt willful or wanton conduct, recklessness, or criminal negligence." Id. at 114-15, 343 N.E.2d at 236.

From these cases, we discern the following: relatively slight deviations from the traffic code, even if they technically rise to the level of "reckless driving," do not necessarily support a reckless homicide conviction if someone is subsequently killed. Some gross deviations from the traffic code, however, may under certain circumstances be such a substantial departure from acceptable standards of conduct that they will support a reckless homicide conviction, such as ignoring traffic signals at a high rate of speed, driving on a dark road at night without headlights, or intentionally crossing the centerline without a legitimate reason for doing so. Speed may support a reckless homicide conviction, but only greatly excessive speeds, such as twenty or more miles per hour over the posted speed limit, or where inclement weather and poor road conditions render higher speeds greatly unreasonable.

The State urges that this case is analogous to Gibbs and Hergenrother, the driving without headlights and crossing the centerline to greet a friend cases, respectively. In those cases, the defendants' reckless homicide convictions stemmed from conduct prohibited by the traffic code. Specifically, it is a Class C infraction to drive without headlights at night or to improperly cross over from the right half of a roadway into oncoming traffic. See I.C. §§ 9-21-7-2, 9-21-7-13, 9-21-8-2, 9-21-8-49. It is also a Class B or C infraction to drive in excess of posted speed limits and a Class C infraction to "follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of both vehicles, the time interval between vehicles, and the condition of the highway." See I.C. §§ 9-21-5-13, 9-21-8-14, 9-21-8-49.2

There is a significant difference, however, between the traffic code violations in Gibbs and Hergenrother and the alleged traffic code violations in this case. First, viewing the evidence regarding Whitaker's speed in the light most favorable to the State, he was traveling approximately five miles per hour above the posted speed limit. However, the evidence also demonstrated that the two vehicles behind Whitaker were also traveling at about the same speed, and one witness expressly agreed that the flow of traffic was about sixty miles per hour. Thus, even if Whitaker was violating the traffic code by speeding, he also was traveling at the same speed as other motorists, making it clear that he was not substantially deviating from acceptable driving standards.

The State places more emphasis on Whitaker's allegedly following Cox's car at an unsafe distance. The only evidence as to how closely Whitaker was following Cox was his own testimony that he could not remember the precise distance, but that it could have two, three, or four car lengths. Tr. p. 491. However, whether one vehicle is too closely following behind another is a much more subjective and difficult question to answer than whether one is...

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