Attorneys for Appellant Attorneys for
Appellee
Matthew Jon McGovern Steve Carter
Louisville, Kentucky Attorney General
of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
________________________________________________________________________
In the
Indiana Supreme Court
________________________________________________________________________
No. 31S01-0302-CR-89
Steven S. Springer, Jr.,
Appellant (Defendant below),
v.
State of Indiana,
Appellee (Plaintiff below).
________________________________________________________________________
Appeal from the Harrison Superior Court, No. 31D01-9911-CF-955
The Honorable Roger D. Davis, Judge
____________________________________________________________________________
__
On Petition To Transfer from the Indiana Court of Appeals, No. 31A01-0110-
CR-368
____________________________________________________________________________
__
November 6, 2003
Sullivan, Justice.
When the son of Defendant Steven S. Springer, Jr., tried to crash a
party at a private residence, the host beat him up. Defendant responded by
taking a loaded and cocked handgun to the residence. The weapon discharged
and a boy was injured. The Court of Appeals reversed Defendant’s
conviction for criminal recklessness on the ground that the jury had not
been instructed to acquit Defendant if it found him to be negligent rather
than reckless. We find that there was no requirement that the jury be so
instructed.
Background
The facts indicate that on the night of November 5, 1999, Phillip
Crain, eighteen years of age, engaged in some risky business while his
parents were on vacation in Aruba. Although Phillip’s parents had
forbidden him from having any friends over while they were gone, he threw a
party at his parent’s home that about 40 to 50 teenagers attended. There
was some alcohol consumption at the party and the services of an adult
entertainer were procured.
Defendant’s son, who had not been invited, crashed the party at some
point during the evening. Phillip told him to leave about three times but
Defendant’s son did not. Ultimately, Phillip attacked Defendant’s son and
kicked him for about five or ten minutes. After the fight, at
approximately one or two in the morning of November 6, Defendant’s son left
the party and drove home. His head and body were badly bruised and
swollen.
Upon returning home, Defendant’s son fell asleep without telling his
parents about the events at the party and without contacting the police.
At about eight o’clock in the morning of November 6, Defendant Steven
Springer, Jr., and his wife learned that their son had suffered a beating
the previous night. Defendant became very angry about what had happened
and decided to confront the individuals responsible for the beating. He
grabbed his unregistered .45 caliber semi-automatic handgun and drove with
his wife to the Crains’ home. He had not obtained any medical aid for his
son at that time, nor had he notified the police about the beating.
When he arrived at the Crains’ home, he loaded a bullet into the
chamber of his gun before approaching. Defendant banged on the door and
demanded to be let inside. One of the boys opened the door and Defendant
asked if he was Phillip Crain. Another of the boys, Benjamin Waldo, ran to
the basement when he saw Defendant approaching the house with a gun.
Defendant heard shuffling behind the basement door and headed towards it.
Benjamin heard Defendant cursing and yelling for Phillip as well as the
sound of drums being kicked.
While this was going on, Jonathan Wendell was washing his face in the
bathroom. Jonathan heard a commotion in the house and then was shot in the
chest. The bullet that injured Jonathan traveled from Defendant’s gun,
through a refrigerator in the kitchen, through the back wall, and into the
bathroom.
After he was shot, Jonathan fell to his knees. Jonathan gathered
himself and then walked to the kitchen and asked Defendant what he was
doing. Defendant asked Jonathan if he was Phillip Crain. Defendant
replied that he was not and Defendant took him to the hospital. Jonathan
received medical treatment, but the bullet remains in his lung because of
the medical risk of removal.
The State charged Defendant with Criminal Recklessness, a Class C
felony. At trial, Defendant admitted that he carried the gun into the
house with a bullet in the chamber and the hammer back but claimed that the
safety was on. He claimed that his weapon fired accidentally when he
stumbled as a result of jerking open the basement door. The State
presented evidence showing that Defendant’s gun had several working
safeties and that the firearm could not have discharged accidentally.
Defendant tendered instructions on the definition of negligence,
definition of recklessness, and the defense of accident to the trial court.
The trial court rejected each of these instructions over Defendant’s
objection.
The jury found Defendant guilty of Criminal Recklessness.
At sentencing, Phillip’s father was granted restitution for property
damage to his residence as well as the cost of his airline tickets back
home from vacation following the shooting. Defendant was sentenced to
seven years incarceration with two of those years suspended.
The Court of Appeals reversed the conviction. Although it found that
the trial court properly rejected Defendant’s tendered instruction on his
accident defense, the Court of Appeals concluded that the trial court erred
in refusing to give Defendant’s tendered instructions on negligence.
Springer v. State, 779 N.E.2d 555, 562-63, 564 (Ind. Ct. App. 2002). It
also determined that the trial court improperly granted restitution for the
cost of airline tickets home from vacation. Id. at 563. Judge Bailey
dissented from the finding that the trial court abused its discretion in
rejecting the tendered instructions involving negligence. Id. at 564-65.
We granted transfer. Springer v. State, 792 N.E.2d 39 (Ind. 2003).
Discussion
I
Defendant maintains that the trial court abused its discretion by
refusing his tendered instruction no. 2 defining “recklessly” and tendered
instruction no. 3 defining “negligence.”
“This Court reviews a trial court's refusal to give a tendered
instruction for an abuse of discretion. We consider (1) whether the
instruction correctly states the law; (2) whether there is evidence in the
record to support the giving of the instruction; and (3) whether the
substance of the tendered instruction is covered by other instructions that
are given.” Forte v. State, 759 N.E.2d 206, 209 (Ind. 2001) (citations
omitted).
The trial court gave the jury an instruction defining “recklessly.”
In relevant part, final jury instruction no. 5 read: “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.”
(Appellant’s App. at 186.)
Defendant proffered two instructions as an alternative to the
court’s. The key factor distinguishing Defendant’s proposed instructions
from the trial court’s final instruction was their emphasis on negligence.
Defendant’s tendered instruction no. 2 also defined “recklessly.” It
read: “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.” (Appellant’s App.
at 175.)
Defendant’s tendered instruction no. 3 defined “negligence.” It said:
“Negligence is the failure to do what a reasonably careful and prudent
person would have done under the same or like circumstances, or the doing
of some thing which a reasonably careful and prudent person would not have
done under the same or like circumstances; in other words, negligence is
the failure to exercise reasonable or ordinary care.” (Appellant’s App. at
176.)
Defendant claims that his tendered instruction no. 2 should have been
used because the trial court’s instruction was an incorrect statement of
the law. Defendant suggests that “the Indiana Court of Appeals has
repeatedly held that the state must prove recklessness as opposed to mere
negligence,” and he suggests that his instruction defining “recklessly”
more accurately states the law because it reminds the jury that
recklessness is graver than negligence. (Br. of Appellant at 10.)
The instruction given by the trial court defined recklessly in terms
almost identical to Defendant’s proposal. Indeed, the trial court’s
instruction closely tracks the statutory definition of recklessness.[1] In
its review of the matter, the Court of Appeals found that “it is
undisputable that the definition of ‘recklessly’ itself was adequately
covered” by the trial court’s instruction. Springer, 779 N.E.2d at 560.
We agree that the trial court’s instruction defining “recklessly” correctly
stated the law.
Defendant also claims that both of his instructions should have been
given because none of the trial court’s jury instructions explained the
difference between recklessness and negligence and, therefore, the
substance of his tendered instructions nos. 2 and 3 was not covered by
other instructions that were given. He points out that “nowhere in the
trial court’s final instructions was the word ‘negligence’ even mentioned.”
(Br. of Appellant at 12.) A direct result, Defendant maintains, is that
the trial court effectively prohibited the jury from hearing any
instruction on any theory of his defense.
To this point, the trial court noted that the State had to prove that
Defendant “intentionally, knowingly or recklessly” acted, not that he
“negligent[ly] discharged a firearm.” (R. at 437.) The trial court
commented that if the jury found that the State had not met its burden of
proof, it would have to acquit the Defendant.
The Court of Appeals disagreed with the trial court. It held that
Defendant’s “substantial rights were most likely prejudiced by the failure
of the trial court to explain the legal concept of negligence.” Springer,
779 N.E.2d at 560. In significant part, the Court of Appeals relied on
Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962), and Sipp v. State, 514
N.E.2d 330 (Ind. Ct. App. 1987), for this conclusion.
In Cichos, the defendant was convicted of reckless homicide after he
was involved in a head-on collision. 243 Ind. at 188-90, 184 N.E.2d at 1-
2. He claimed that the trial court abused its discretion by failing to
give his tendered instructions, some of which explained negligence. Id. at
189-91, 184 N.E.2d at 2-3. This Court found that, in the context of a
reckless homicide charge in an automobile accident, the failure to give the
instructions constituted an abuse of discretion because the substance of
the instructions was not covered by any others given. Id. at 191-92, 184
N.E.2d at 3.
Sipp involved a similar claim arising from an automobile accident.
Relying on Cichos, the Court of Appeals found an abuse of discretion when
the trial court failed to give instructions that it viewed as substantively
the same as those tendered in Cichos. See Sipp, 514 N.E.2d at 331-32.
On transfer, the State argues that it was not error for the trial
court to deny the instructions because negligence was simply not an
available defense. (Br. of Appellee at 6.) In his dissent, Judge Bailey
also took this position. He argued that “[n]egligence law presupposes that
an individual is engaged in lawful conduct which can be undertaken with due
care for the safety of another person” but that Defendant’s actions were
those of a vigilante seeking “retribution on his own.” Springer, 779
N.E.2d at 564-65.
Viewed in totality, the facts support Judge Bailey’s analysis.
On the morning of November 6, 1999, Defendant learned that his son
had been involved in a physical altercation at the Crains’ home the
previous night after he tried to attend a party to which he had not been
invited. In a state of anger, Defendant grabbed his unlicensed firearm and
he and his wife drove to the Crains’ home. Defendant did not take a moment
to notify the police that his son had been in a fight, nor did he obtain
medical aid for his son. At the Crains’ home, Defendant loaded a bullet
into his gun – later admitting that it was “locked and cocked” with “one in
the chamber.” (R. at 383, 386.) Still angry, he proceeded to bang on the
door demanding entry and when he gained entry, he demanded to know the
whereabouts of Phillip Crain, whom he believed had beaten his son the night
before. In the midst of this activity, Defendant’s gun fired and a bullet
became lodged in Jonathan Wendell’s lung, where it remains to this day.
At trial, evidence was presented showing that Defendant’s gun had
several working safeties and that the gun could not have discharged
accidentally. The State maintains that Defendant intentionally fired a
warning shot but Defendant maintains that the firing was an accident.
Under these facts, we are unable to say that the trial court abused
its discretion by denying an instruction on negligence. Negligence, as
used by Defendant here, is an argument not a legal defense. Defendant’s
legal defense was and is that he is not guilty of criminal recklessness
because his actions did not meet the legal requirements of recklessness.
The jury was properly instructed that the State was required to prove
beyond a reasonable doubt that Defendant had acted “in plain, conscious and
unjustified disregard of the harm that might result therefrom, and the
disregard involve[d] a substantial deviation from acceptable standards of
conduct.” Defendant was free to and did argue that he did no more than
fail “to exercise reasonable or ordinary care.” As the trial court
accurately observed, Defendant’s negligence argument is simply a statement
that State failed to prove that he was reckless. No additional instruction
to the jury on this point was required.
Another factor pointing away from a finding of an abuse of discretion
on the trial court’s part is that no reasonable interpretation of the facts
suggests that Defendant’s conduct was merely negligent, that he merely
failed to exercise reasonable or ordinary care. As Judge Bailey pointed
out, “there is no definition of reasonable and ordinary care that
encompasses the circumstance of an uninvited person seeking confrontation
in the occupied residence of another person, while wielding a loaded,
cocked weapon without the safety mechanism engaged.” Springer, 779 N.E.2d
at 565. From the very beginning, Defendant engaged in conduct in which he
had no right to engage and which, when viewed in its best light, indicates
an intent to intimidate. “While the criminal code is willing to excuse the
use of force in certain circumstances to protect against certain unlawful
activity, it does not countenance and will not sanction premeditated
retaliation for past violence.” Henson v. State, 786 N.E.2d 274, 278 (Ind.
2003).
While the jury had the responsibility of determining whether
Defendant’s conduct was reckless, there was no legal question of negligence
at stake. In this respect, the factual circumstances of this case
distinguish it from Cichos and Sipp. Both of those cases involved conduct
that can be undertaken with due care – the conduct of driving a motor
vehicle. See Cichos, 243 Ind. at 189-90, 184 N.E.2d at 3; Sipp, 514 N.E.2d
at 330.
II
Defendant also claims that the trial court abused its discretion by
refusing his tendered instruction no. 4 on the defense of accident. The
proposed instruction reads:
In general, prohibited conduct may be excused when it is the result of
an accident. This defense contains three elements: (1) The conduct
must be without unlawful intent or evil design on the part of the
accused; (2) The act resulting in injury must not have been an
unlawful act; (3) The act must not have been done recklessly,
carelessly, or in wanton disregard of the consequences. The State has
the burden of disproving this defense beyond a reasonable doubt.
(Appellant’s App. at 177.)
The Court of Appeals found that it was not error to deny the accident
instruction because Defendant “cannot show that his substantial rights were
prejudiced by not giving such an instruction.” Springer, 779 N.E.2d at
563. It reasoned that “were the jury to decide that the shooting was a
result of an accident, there is no question that the jury could not find
that he was reckless.” Id. We adopt the opinion of the Court of Appeals
on this point.
III
Finally, Defendant challenges the restitution order entered against
him to the extent that it requires him to reimburse Phillip Crain’s father
for the cost of airline tickets to return home from vacation as a result of
the shooting. (Br. of Appellant at 20-22.)
Relying on our holding in Roach v. State, 711 N.E.2d 1237 (Ind.
1999), and the text of Ind. Code § 35-50-5-3 (1998),[2] the Court of
Appeals found that the trial court erred in requiring Defendant to
reimburse for the costs of the airline tickets. Springer, 779 N.E.2d at
563. It reasoned the General Assembly has not authorized the trial court
to include this expense in its restitution order because none of the
statutory restitution categories includes any language that could be
construed to authorize it. Id.
We summarily affirm the opinion of the Court of Appeals on this point.
Conclusion
Having previously granted transfer pursuant to Ind. Appellate Rule
58(A), we adopt the portion of the opinion of the Court of Appeals
affirming the trial court’s rejection of Defendant’s tendered instruction
no. 4 and summarily affirm the portion reversing the trial court’s grant of
restitution for airplane tickets. We find that the trial court did not
abuse its discretion in rejecting Defendant’s tendered instructions nos. 2
and 3 and therefore affirm the judgment of conviction of Criminal
Recklessness.
Shepard, C.J., and Boehm, J., concur.
Dickson, Justice, dissenting.
The Court concludes that no additional instruction was required
regarding negligence and that "no reasonable interpretation of the facts
suggests that Defendant's conduct was merely negligent." Slip op. at 8. I
respectfully dissent, believing, as did the Court of Appeals, that the
trial court erred in refusing to give the defendant's tendered instructions
defining "recklessly" and "negligence."
The charging information alleged that criminal recklessness occurred
when the defendant "discharged a .45 caliber handgun causing the
bullet/projectile to enter the chest of Jonathan Windell" (R. at 14). It
did not charge that the defendant was reckless by entering a dwelling full
of people with a loaded, cocked handgun. In defense, the defendant claimed
that the gun discharged as a result of an accident, or at the most
negligence, and that his conduct did not rise to the level of recklessness.
He testified at trial that, because the occupants of the house had
baseball bats, he took the gun with him for self-defense, he believed that
the safety was on, and he carried the gun in his non-dominant hand because
he had no intention of using it. He stated that, after entering the house,
he heard shuffling behind the door leading to the basement and, because he
didn't know who was on the other side, he opened the door and stepped back
for his own protection. As he did so, he stumbled backwards, and
accidentally discharged the weapon. He insisted that at no time did he
point the weapon at anyone, but kept it down by his side. The bullet
passed through a refrigerator and a wall, ultimately injuring a third party
in another room.
A defendant in a criminal case is entitled to have the jury instructed
on any theory of defense that has some probative foundation in the
evidence, however weak and inconsistent. Wilson v. State, 268 Ind. 112,
117, 374 N.E.2d 45, 48 (1978); Hedrick v. State, 229 Ind. 381, 389, 98
N.E.2d 906, 910 (1951); Taylor v. State, 629 N.E.2d 852, 855 (Ind. Ct. App.
1994); Dayhuff v. State, 545 N.E. 2d 1100, 1102 (Ind. Ct. App. 1989).
Although negligence is technically not a defense to criminal
recklessness, prior Indiana decisions have often emphasized that to prove
recklessness, the State must prove that a defendant acted recklessly and
not merely negligently. See, e.g., Beeman v. State, 232 Ind. 683, 690, 115
N.E.2d 919, 921 (1953); Warner v. State, 577 N.E.2d 267, 269 (Ind. Ct. App.
1991); Young v. State, 161 Ind. App. 532, 546, 316 N.E.2d 435, 443 (1974);
Coconower v. Stoddard, 96 Ind. App. 287, 293, 182 N.E. 466, 469 (1932).
In Cichos v. State, 243 Ind. 187, 184 N.E. 2d 1 (1962), this Court
found that the trial court committed reversible error in refusing to give
tendered negligence instructions in a reckless homicide case. The 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.
Id. at 192, 184 N.E.2d at 3. (emphasis added). Relying on Cichos, the
Court of Appeals in Sipp v. State, 514 N.E. 2d 330 (Ind. Ct. App. 1987),
found that the trial court erred in refusing to give a tendered negligence
instruction in a reckless homicide case. Judge Garrard explained in his
concurring opinion:
[T]he 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 the instructions is
to fairly advise the jury on the law applicable to the case.
Id. at 332. Similarly, in Rickner v. Haller, 124 Ind. App. 369, 379, 116
N.E.2d 525, 530 (Ind. Ct. App. 1954) the Court of Appeals stated:
In this case, the fact of wanton or willful misconduct is in issue.
Appellant was, therefore, entitled to instructions which defined and
distinguished such conduct from ordinary negligence. This rule has
been stated as follows: "Where the question of 'willfulness,'
'wantonness,' and 'recklessness' are in issue, those terms should be
defined and distinguished from 'ordinary negligence.'"
Id. at 530 (quoting 65 C.J.S., Negligence, § 289c).
For the defendant to have a fair opportunity to present his defense,
it was crucial that the jury understand the difference between negligence
and recklessness. Distinguishing between reckless and negligent conduct is
not an easy task, and "even those trained in the legal profession have
grappled with abstract notions regarding degrees of culpability." Taylor
v. State, 457 N.E.2d 594, 599 (Ind. Ct. App. 1983). In the present case,
the jury expressed a similar concern. During deliberations, it sent a note
to the judge requesting the legal definition of negligence, but none was
provided by the court.
I believe that the defendant's tendered instructions were correct
statements of law, were based upon the evidence, were not adequately
covered by any other instructions, and were necessary to enable the jury
fairly to consider the defendant's theory of defense. Because the trial
court refused these instructions, I would reverse and remand for a new
trial.
Rucker, J., concurs.
-----------------------
[1] Ind. Code § 35-41-2-2(c) (1998) (“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.”).
[2] In relevant part, it states:
“The court shall base its restitution order upon a consideration of: (1)
property damages of the victim incurred as a result of the crime, based on
the actual cost of repair (or replacement if repair is inappropriate); (2)
medical and hospital costs incurred by the victim (before the date of
sentencing) as a result of the crime; (3) earnings lost by the victim
(before the date of sentencing) as a result of the crime including earnings
lost while the victim was hospitalized or participating in the
investigation or trial of the crime; and (4) funeral, burial, or cremation
costs incurred by the family or estate of a homicide victim as a result of
the crime.”