MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), 08/31/2017, 9:36 am
this Memorandum Decision shall not be CLERK
Indiana Supreme Court
regarded as precedent or cited before any Court of Appeals
and Tax Court
court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. Barnhart Curtis T. Hill, Jr.
Brooke Smith Attorney General of Indiana
Keffer Barnhart, LLP
Indianapolis, Indiana Tyler G. Banks
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Jay Lavender, August 31, 2017
Appellant-Defendant, Court of Appeals Case No.
45A03-1701-CR-105
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1408-F5-6
Barnes, Judge.
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Case Summary
[1] Jay Gary Lavender appeals his conviction for Class B misdemeanor reckless
operation of a tractor-trailer. We affirm.
Issues
[2] Lavender raises two issues on appeal:
I. whether the trial court abused its discretion by refusing
Lavender’s proposed jury instruction; and
II. whether the evidence is sufficient to sustain Lavender’s
conviction for Class B misdemeanor reckless operation of
a tractor-trailer.
Facts
[3] On August 9, 2014, Ajit Andrew Das stopped in Hobart to get gas for his
minivan at a gas station located on the corner of U.S. 30 and Mississippi Street.
Hobart Police Department Officer Christopher Sipes was parked at the gas
station, on duty and watching traffic for potential violations. As Das pulled out
of the station, heading west, he made a legal right turn into the first through-
lane. There were two cars stopped at a red light in front of him. Lavender’s
truck was about 240-270 feet behind Das when he pulled out. As Das was
coming to a stop, he heard Lavender begin to honk his horn and continue to
honk his horn until he approached Das’s vehicle. Das later said, “I mean, he
probably would have slowed down somewhat, but to come to the stop where I
am, to come to stop at the light, it seemed awfully aggressive on the speed. I’ve
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never seen a truck close a red light with that sort of speed.” Tr. Vol. I p. 49.
Lavender stopped the tractor-trailer at an angle. The cab of the truck stopped in
the left lane next to Das’s driver’s-side window, and the trailer of the truck was
behind Das’s vehicle.
[4] Once the vehicle was stopped, Lavender got into the passenger seat of his truck,
rolled down the window, and began yelling at Das. Das did not roll down his
window because he did not want to make the situation worse. After Lavender
yelled at Das, Lavender climbed back into the driver’s seat, angled the front of
the cab toward Das’s vehicle, and “lurched” at him two or three times. Id. at
53. Das was afraid the truck would hit his vehicle but it did not, although it
came within inches of doing so.
[5] Officer Sipes observed the incident between Das and Lavender. He believed
that, based on his training and experience, Das had not committed any traffic
violations when he pulled out of the gas station and that Lavender had enough
room to stop without colliding with Das’s vehicle. Officer Sipes later explained
that Lavender’s “[stop] appeared controlled to me. It didn’t look like he was
driving recklessly at that point. It looked like he could have stopped if he had
chosen to.” Id. at 112. Officer Sipes also witnessed Lavender yell at Das and
then lurch the tractor-trailer toward Das’s vehicle. Officer Sipes pulled over
both Lavender and Das; Das was soon allowed to leave, but Lavender was
arrested.
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[6] On August 11, 2014, the State charged Lavender with Level 6 felony
intimidation, Level 6 felony criminal recklessness, Class B misdemeanor
reckless operation of a tractor-trailer, and the Class C infractions of excessive
use of a horn and unsafe lane movement. A jury trial began on October 25,
2016. Following the State’s evidence, the trial court granted Lavender’s request
for a directed verdict for the Level 6 felony intimidation charge, but denied his
request for the remaining charges.
[7] During the trial, Lavender tendered a proposed jury instruction, which
provided: “If the evidence merely tends to establish a suspicion of guilt or the
mere opportunity to commit the charged act, it is clearly insufficient to sustain a
conviction.” App. Vol. II p. 111. The trial court refused to give the instruction,
stating: “I think it’s largely covered already in the burden of proof instruction . .
. and presumption of innocence instruction that the Court’s already giving the
jury. I do not believe that this instruction adds anything more than what’s
already being given.” Tr. Vol. II p. 50.
[8] The jury found Lavender guilty of Class B misdemeanor reckless operation of a
tractor-trailer and found him not guilty or not liable for the other charges. A
sentencing hearing was held on December 14, 2016. During the hearing,
Lavender moved for judgment notwithstanding the verdict. The trial court
denied the motion and sentenced Lavender to time served. Lavender now
appeals.
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Analysis
I. Proposed Jury Instruction
[9] Lavender argues that the trial court abused its discretion when it refused to give
his tendered instruction. The purpose of jury instructions is to inform the jury
of the law applicable to the facts without misleading the jury and to enable it to
comprehend the case clearly and arrive at a just, fair, and correct verdict.
Murray v. State, 798 N.E.2d 895, 899 (Ind. Ct. App. 2003). We review a trial
court’s decision on how to instruct a jury for abuse of discretion. Short v. State,
962 N.E.2d 146, 151 (Ind. Ct. App. 2012). In reviewing a trial court’s decision
to give a tendered jury instruction, we consider whether the instruction
correctly states the law, is supported by the evidence in the record, and is not
covered in substance by other instructions. Murray, 798 N.E.2d at 900. We will
reverse a conviction based on alleged instructional error only if the defendant
demonstrates that the error prejudiced his or her substantial rights. Id.
[10] Lavender tendered the following proposed jury instruction: “If the evidence
merely tends to establish a suspicion of guilt or the mere opportunity to commit
the charged act, it is clearly insufficient to sustain a conviction.” App. Vol. II p.
111. In rejecting the instruction, the trial court noted that it would give several
instructions on the burden of proof and presumption of innocence that it
believed adequately covered Lavender’s proposed instruction. Those
instructions provided in part:
[A] person charged with a crime is presumed to be innocent.
This presumption of innocence continues in favor of the
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defendant throughout each stage of the trial and you should fit
the evidence presented to the presumption that the defendant is
innocent, if you can reasonably do so.
If the evidence lends itself to two reasonable interpretations, you
must choose the interpretation consistent with the defendant’s
innocence. If there is only one reasonable interpretation, you
must accept that interpretation and consider the evidence with all
the other evidence in the case in making your decision.
To overcome the presumption of innocence, the State must prove
the defendant guilty of each element of the crime charged,
beyond a reasonable doubt.
*****
A defendant must not be convicted on suspicion or speculation.
It is not enough for the State to show that the defendant is
probably guilty. . . .
The State must prove each element of the crimes charged by
presenting evidence that firmly convinces each of you and leaves
no reasonable doubt. The proof must be so convincing that you
can rely and act upon it in this matter of the highest importance.
If you find that there is a reasonable doubt that the defendant is
guilty of the crimes, you must give the defendant the benefit of
that doubt and find the defendant not guilty of the crime under
consideration.
Id. at 94-95.
[11] In Townsend v. State, 934 N.E.2d 118 (Ind. Ct. App. 2010), trans. denied, we
upheld the refusal to give an instruction identical to Lavender’s proposed
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instruction because its substance was adequately covered by the given
instructions. We noted that jury instructions must be considered as a whole
and in reference to each other. Townsend, 934 N.E.2d at 130. Additionally, a
refusal to give a proposed instruction is not reversible error unless the
instructions as a whole misstate the law or misled the jury. Id. A trial court’s
given instructions are adequate if they reasonably inform the jury of the basis
upon which it could, and could not, convict a defendant. Id.
[12] As in Townsend, the trial court here gave numerous instructions regarding the
State’s burden of proof and Lavender’s presumption of innocence. Considering
the instructions as a whole, the proposed “mere opportunity” instruction was
unnecessary. The trial court did not abuse its discretion by refusing to give
Lavender’s proposed instruction. 1
II. Sufficiency of the Evidence
[13] Lavender contends that the evidence was insufficient to sustain a conviction for
Class B misdemeanor reckless operation of a tractor-trailer. When reviewing a
claim of insufficient evidence, we neither reweigh evidence nor judge the
credibility of witnesses. Rutherford v. State, 866 N.E.2d 867, 871 (Ind. Ct. App.
2007). We consider only the probative evidence and reasonable inference
1
Lavender suggests that the jury’s allegedly “inconsistent” verdicts “could mean that it misunderstood its
instructions,” quoting Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010). The next sentence in Beattie, however
is, “But it is much more likely that the jury chose to exercise lenity, refusing to find the defendant guilty of
one or more additionally charged offenses, even if such charges were adequately proven by the evidence.” Id.
We see no indication here that the jury misunderstood its instructions.
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supporting the verdict. Townsend, 934 N.E.2d at 126. We will affirm a
conviction unless we conclude that no reasonable fact-finder could find the
elements of the crime proven beyond a reasonable doubt. Stokes v. State, 922
N.E.2d 758, 763 (Ind. Ct. App. 2010), trans. denied. The evidence is sufficient if
an inference may reasonably be drawn from it to support the verdict. Townsend,
934 N.E.2d at 126.
[14] Pursuant to Indiana Code Section 9-21-8-50, “[a] person who operates a tractor-
trailer combination in a reckless or deliberate attempt to: (1) endanger the
safety or property of others; or (2) block the proper flow of traffic; commits a
Class B misdemeanor.” “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(c). “Recklessness . . . differs
from intentionality in that the actor does not seek to attain the harm; rather he
believes that the harm will not occur.” Humes v. State, 426 N.E.2d 379, 383
(Ind. 1981). The word “endanger” or “endangerment” in a criminal statute
refers to past or present conduct by the defendant that placed a person in danger
and does not require that actual harm or injury occur. See Davis v. State, 13
N.E.3d 500, 503 (Ind. Ct. App. 2014).
[15] Lavender contends that “the movement of the tractor and Das’s subjective
perception or fear does not equate to proof or evidence that Lavender recklessly
or deliberately attempted to endanger Das or his property.” Appellant’s Br. p.
14. Even if Das’s subjective fear of harm was irrelevant, there is ample
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objective evidence that Lavender operated his tractor-trailer in a reckless
manner. The evidence most favorable to the conviction is that Das made a safe
and legal turn onto U.S. 30. According to Officer Sipes, a trained professional
who observed the incident, Lavender had sufficient room to stop his tractor-
trailer behind Das’s vehicle. Instead, Lavender came to a controlled stop with
his cab at Das’s driver’s-side door and the trailer behind Das’s vehicle.
Lavender then yelled and gestured at Das before getting back behind the wheel
and deliberately lurching his tractor-trailer towards Das, coming within inches
of striking Das’s vehicle, before driving away.
[16] This evidence is sufficient to prove that Lavender recklessly endangered Das’s
property or safety. Although no harm actually came from Lavender’s conduct,
the statute criminalizing reckless operation of a tractor-trailer does not require
such harm. Rather, it is clearly intended to dissuade operators of tractor-trailers
from operating their vehicles recklessly due to their large size and potential
danger to other drivers and to prevent actual harm from happening. Lavender’s
actions of stopping his tractor-trailer in the way he did when he did not need to
do so, and then of lurching towards Das’s minivan while in an angry state of
mind, was reckless conduct that could have resulted in serious harm to Das’s
vehicle or Das himself if Lavender had slightly misjudged his stop or lurched
just a few inches further. Lavender’s sufficiency argument is a request to
reweigh the evidence that we must decline.
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Conclusion
[17] The trial court did not abuse its discretion by refusing Lavender’s proposed jury
instruction, and there was sufficient evidence to sustain Lavender’s conviction
for Class B misdemeanor reckless operation of a tractor-trailer. We affirm.
[18] Affirmed.
Baker, J., and Crone, J., concur.
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Jay Lavender v. State of Indiana (mem. dec.)
Combined Opinion