dissenting.
I respectfully dissent from the majority's determination that the trial court erred in refusing to give Springer's tendered instructions on negligence to the jury. This is not a case about negligence. Negligence law presupposes that an individual is engaged in lawful conduct which cam be undertaken with due care for the safety of another person. The cases relied upon by the majority, Sipp, 514 N.E.2d at 330 and Cichos, 184 N.E.2d at 1, involve such conduct, that of operating a motor vehicle. The mere negligent operation of a motor vehicle does not render one operating it criminally liable should harm ensue. Id. at 8.
Here, in contrast, Springer was engaged in conduct that he had no legal right to engage in; specifically, entering another's home in a confrontational manner, holding an unlicensed weapon, which he admitted was "locked and cocked" with "one in the chamber." (Tr. 386.) Springer was in a course of criminal conduct from the moment he demanded entry to another's home, armed and on a mission to intimidate the person he believed to be responsible for the besting of his son. Had the course of conduct ended with the victim fatally wounded, Springer would properly have been tried on a charge of felony murder.
The majority accepts as uncontroverted the factual contention that Springer "stepped back and stumbled" while holding the gun and that "when he stumbled, the gun fired." Op. at 557. However, these were claims made by Springer and contested by the State, which presented evidence that the trajectory of the bullet was consistent with the deliberate firing of a warning shot into a wall. The State also presented evidence that the gun had a safety mechanism and was not defective, and that deliberate pressure on the trigger was required for firing. However, even assuming that Springer stumbled once inside the house, upon failing to exercise due care to avoid tripping, this does not render all his foregoing conduct merely negligent.
Considering either Springer's version-that he took a "locked and cocked" gun into a residence and thereafter stumbled- or the State's version-that he took his gun into a residence and fired a warning shot while demanding to know the whereabouts of his son's attacker-the discharge could not be lawful. Springer had no right to be in the residence; he was not acting in defense of a person or property; he had no excuse or justification for his actions recognized by law and did not suffer from diminished capacity. The illicit activities that had taken place in the residence, as well as the illegal conduct directed toward Springer's son, had already terminated before Springer appeared. Springer elected not to summon police, but to seek retribution on his own. To allow negligence instructions under such cireumstances would be tantamount to accepting vigilante jus*565tice without an imminent threat to person or property.
Moreover, assuming that an instruction including language that "This requires the State to prove more than mere negligence on the behalf of the Accused," App. at 175, is relevant to an issue before the jury, the jury would not have been adequately apprised of negligence law by the instructions tendered. The tendered instructions omit a definition of "reasonable and ordinary care" for obvious reasons-there is no definition of reasonable and ordinary care that encompasses the cireumstance of an uninvited person seeking confrontation in the occupied residence of another person, while wielding a loaded, cocked weapon without the safety mechanism engaged. Ultimately, Springer may argue a particular version of the facts in support of his theory of the case. However, under the cireumstances of this case, he is not entitled to have the support of the law to further his theory. '
Finally, error in failing to give an instruction does not warrant reversal absent prejudice to the defendant. Bragg v. State, 695 N.E.2d 179, 180 (Ind.Ct.App.1998). Springer was not prejudiced by the omission of negligence instructions. The jury could not have found Springer negligent under either factual seenario presented.
I would affirm the refusal of the negli-genee instructions. In all other respects, I concur with the majority.