dissenting.
The Court concludes that no additional instruction was required regarding negligence and that "no reasonable interprétation of the facts suggests that Defendant's conduct was merely negligent." Op. at 485. 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 hegligence 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, 248 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 megligent conduct or from willful and/or wanton misconduct so as *438to 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 Cichkos, 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.