Opinion
24A-CR-921
09-11-2024
Nakeyia J. Anderson, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT R. Brian Woodward Appellate Public Defender Crown Point, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.
Appeal from the Lake Superior Court The Honorable Salvador Vasquez, Judge Trial Court Cause No. 45G01-2110-F5-490
ATTORNEY FOR APPELLANT R. Brian Woodward Appellate Public Defender Crown Point, Indiana
ATTORNEYS FOR APPELLEE Theodore E. Rokita Indiana Attorney General Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
MEMORANDUM DECISION
Bailey, Judge.
Case Summary
[¶1] Following a jury trial, Nakeyia Anderson appeals her conviction of reckless homicide, a Level 5 felony. We affirm.
Issues
[¶2] Anderson raises the following three restated issues:
I. Whether the trial court abused its discretion when it instructed the jury regarding Indiana Rule of Evidence 404(b).
II. Whether the trial court abused its discretion when it refused to give Anderson's proposed jury instruction regarding the defense of necessity.
III. Whether the trial court abused its discretion when it instructed the jury regarding voluntary intoxication.
Facts and Procedural History
[¶3] Anderson and her husband, Tihomas Anderson ("Tihomas"), were married and lived together in a house in Merrillville with their three young children and Anderson's two teenage daughters. On the evening of July 17, 2021, Anderson and Tihomas went to a bar to celebrate Anderson's birthday. At the celebration, they both drank alcohol and argued. On their way home from the bar, Anderson and Tihomas continued to argue, and their argument continued inside their house after they arrived home.
[¶4] At approximately 4:00 a.m. on July 18, Tihomas left the house and got into the front driver's side of the couple's car that was parked in their driveway. Anderson got into the front passenger's side of the car to retrieve her firearm that was located on the floor under the passenger seat. When Anderson retrieved the firearm, Tihomas grabbed it. Anderson and Tihomas struggled over the firearm with the barrel pointed toward Tihomas. During the struggle, the firearm discharged, shooting Tihomas in the chest. Tihomas fell from the driver's side of the car onto the parties' front lawn.
[¶5] When emergency responders arrived, Anderson was leaning over Tihomas, applying pressure to his wound. Several law enforcement officers interviewed Anderson at the scene while wearing body cameras, which recorded their conversations. Anderson was taken to the police station for questioning, and the officer driving her there had his body camera on and recording while he did so. Tihomas was taken to the hospital where he later died from his wound.
[¶6] Anderson was subsequently charged with reckless homicide. Prior to her jury trial, the State filed a notice of intent to introduce witness testimony pursuant to Indiana Evidence Rule 404(b); specifically, witness statements regarding threats Anderson had made about Tihomas in the past. Anderson filed a motion in limine seeking to exclude that evidence. At the pretrial hearing on those motions, the court preliminarily ruled that the evidence was admissible "to show the relationship between the parties." Tr. v. II at 27.
[¶7] Also prior to trial, Anderson tendered a proposed jury instruction on the defense of necessity, and the trial court denied the request to give that instruction. The State tendered a proposed instruction regarding intoxication, which the trial court gave to the jury, over Anderson's objection.
[¶8] At the jury trial, the State presented testimony of Tihomas's sister, Elbony Powell. Anderson renewed her Rule 404(b) objection, and the court overruled it. Anderson then requested that the court issue a limiting instruction to the jury that the Rule 404(b) evidence was only admissible to show absence of mistake or lack of accident. The trial court refused that proposed limiting instruction and instead read Rule 404(b)(1) and (2) to the jury, over Anderson's objection. Powell then testified that Anderson had told her in two separate telephone calls-one in 2020 and the other in 2021-that she was going to kill Tihomas.
[¶9] At trial, the State admitted into evidence and published to the jury four exhibits-State's Exhibits 44-47-that each contained audio and visual recordings from four different law enforcement officers' body cameras in use at the scene, on the way to the police station, and at the police station. While talking to officers at the scene, Anderson stated that she and Tihomas had been arguing that night, she went to the passenger side of her car to retrieve her gun, Tihomas was also in the car and tried to grab the gun from her, and the parties struggled over the gun. Anderson stated repeatedly that her finger was on the gun and, while so stating, she repeatedly made a gesture showing her pointer finger curled.
[¶10] Anderson stated at various times that her finger was: "on [her] weapon," Ex. 45 at 5:40-45; "through the holster," id. at 21:35-40, 22:40-44, Ex. 47 at 13:4050; "through the chamber," Ex. 46 at 12:50-13:10; "through the weapon," Ex. 46 at 37:40-45; and "through the pistol," Ex. 47 at 13:40-45. Anderson further stated at various times that, while she was trying to "yank" the firearm out of Tihomas's hand, Tihomas "pushed [her] finger back on top of his finger," Ex. 47 at 8:50-9:10, and she was "trying to put [her] finger behind his finger," id. at 9:50, and "trying to put [her] finger in it . . . to keep it from discharging," id. at 13:00-05. Anderson also stated that she was "trying to get [her] finger out of the way and [the gun] went off." Ex. 45 at 33:00-20. Anderson twice stated that Tihomas had said to her, "you shot me." Ex. 47 at 10:05-10, 15:20-30. However, she later stated three times that Tihomas had said, "I shot myself." Ex. 46 at 29:40-45, 38:30-40; 38:45-50.
[¶11] The jury found Andeson guilty as charged, and the trial court sentenced Anderson to three years of incarceration, with one year suspended to probation. This appeal ensued.
Discussion and Decision
Standard of Review
[¶12] Anderson appeals portions of the jury instructions given by the trial court. Our standard of review upon claims of instructional error is well-settled:
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. In reviewing a trial court's decision to give [or refuse] a tendered jury instruction, we consider (1) whether the instruction correctly states the law, (2) is supported by the evidence in the record, and (3) is not covered in substance by other instructions. The trial court has discretion in instructing the jury, and we will reverse only when the instructions amount to an abuse of discretion. To constitute an abuse of discretion, the instructions given must be erroneous, and the instructions taken as a whole must misstate the law or otherwise mislead the jury. We will consider jury instructions as a whole and in reference to each other, not in isolation.Phillips v. State, 22 N.E.3d 749, 761 (Ind.Ct.App. 2014) (quoting Munford v. State, 923 N.E.2d 11, 14 (Ind.Ct.App.2010)), trans. denied. However, we will not reverse on the basis of instructional error unless the defendant shows that the probable impact of the error upon a reasonable, average jury affected the defendant's substantial rights and, thus, undermines confidence in the outcome of the proceeding in light of all the evidence in the case. See, e.g., Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023) (citing Ind. Appellate Rule 66).
Limiting Instruction
[¶13] Anderson appeals the trial court's denial of her request for a limiting jury instruction as to the use of Powell's testimony about Anderson's past statements that she was going to kill Tihomas. The trial court did instruct the jury regarding that evidence, but only by reading to the jury the following part of Rule 404(b):
Evidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the defendant acted in accordance with the character.... Permitted uses. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake or lack of accident.Tr. v. II at 202-03. See also Evid. R. 404(b)(1), (2).
[¶14] Anderson contends that Powell's testimony was evidence of a past wrong (i.e., a threat to Tihomas's life) that was not admissible to show Anderson acted in accordance with her character, but only to show her absence of mistake or lack of an accident when she allegedly shot Tihomas. See Evid. R. 404(b)(1), (2). Anderson asserts that the trial court erred by instructing the jury that the evidence may also be admissible to show intent, as a defendant's specific intent is not at issue in a charge of reckless homicide. See I.C. §§ 35-42-1-5; 35-41-2-2(c) (providing that a person "recklessly" kills another person "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.").
[¶15] Anderson is correct that reckless homicide
is not a "specific intent" offense, nor is it an offense wherein knowledge of an attendant circumstance is a material element of the offense. It is, instead, a general intent crime which involves choosing a course of action either with knowledge of the serious danger to others involved therein, or with knowledge of facts which would disclose the danger to any reasonable man.Salrin v. State, 419 N.E.2d 1351, 1354 (Ind.Ct.App. 1981) (citations omitted). Therefore, the State's Rule 404(b) evidence was not admissible to prove Anderson's intent.
We express no view regarding whether the trial court erred by including in the instruction that a permissible purpose for the evidence would be to prove "motive, opportunity, ... preparation, plan, knowledge, [or] identity," as Anderson presents no argument on appeal regarding the admissibility to prove those purposes.
[¶16] Moreover, the trial court was required to provide the requested instruction limiting the evidence's use as to intent, as Indiana Rule of Evidence 105 provides that: "When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and admonish the jury accordingly." (Emphasis added.) The language of that rule is mandatory. "That is, if requested, the court 'shall' restrict the evidence to its proper scope and admonish the jury." Wilhelmus v. State, 824 N.E.2d 405, 415 (Ind.Ct.App. 2005) (citing Ind. Evid. R. 105).
[¶17] However, any error in refusing Anderson's requested limiting instruction was harmless and, therefore, not reversible. In determining whether the error was harmless, we consider all the evidence of recklessness that was before the jury. See App. R. 66(A). Aside from Powell's Rule 404(b) testimony, the jury had before it evidence of Anderson's own statements that she and Tihomas had been fighting before Anderson decided to retrieve her loaded firearm from the car. Body camera footage showed Anderson's admissions that she is the person who introduced a loaded gun into the fraught situation, she and Tihomas then struggled for control of the gun, and her finger was on the gun when it discharged, killing Tihomas. Moreover, there was no evidence that Tihomas was aware of the location of the loaded gun before Anderson retrieved it. Thus, the jury had evidence before it that Anderson chose "a course of action either with knowledge of the serious danger to others involved therein, or with knowledge of facts which would disclose the danger to any reasonable man." Salrin, 419 N.E.2d at 1354.
[¶18] Considering all the evidence, we are confident that the jury would have reached the same determination that Anderson committed reckless homicide, even if the court had issued the requested limiting instruction. Therefore, the court's failure to do so was not a reversible error. See id.; Hayko, 211 N.E.3d at 492.
Necessity Instruction
[¶19] Anderson challenges the trial court's refusal of her proposed jury instruction on the defense of necessity. "A criminal defendant is entitled to have a jury instruction on any theory or defense which has some foundation in the evidence." Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (quotations and citation omitted). In evaluating whether the evidence supports the giving of a defense instruction on a claim of necessity, the court must consider whether there is some evidence of each of the following prerequisites:
(1) the act charged as criminal must have been done to prevent a significant evil;
(2) there must have been no adequate alternative to the commission of the act;
(3) the harm caused by the act must not be disproportionate to the harm avoided;
(4) the accused must entertain a good-faith belief that his act was necessary to prevent greater harm;
(5) such belief must be objectively reasonable under all the circumstances; and (6) the accused must not have substantially contributed to the creation of the emergency.Id. at 367-77 (citing Toops v. State, 643 N.E.2d 387, 389 (Ind.Ct.App.1994)).
[¶20] The trial court did not err in rejecting Anderson's proposed necessity instruction as there was a lack of evidence as to several of the prerequisites for such an instruction. Regarding factors one, four, and five, there was no evidence that it was necessary for Anderson to retrieve her firearm from under the passenger seat in order to prevent a significant evil or some greater harm than death. Anderson argues that it could be "inferred" from the evidence that she sought to stop the "emergency" of an intoxicated person possessing a loaded firearm while driving a vehicle or going back inside the house with the children. Appellant's Br. at 12-13. However, there is no evidence that Tihomas was aware that Anderson's loaded firearm was under the passenger seat; thus, there is no evidence that Tihomas would have had a loaded gun if Anderson herself had not removed it from under the seat in his presence. The evidence showed that Anderson's retrieval of the firearm is what caused Tihomas to grab the gun in the first place, not what was done to prevent him from possessing it. Moreover, there was no evidence that Anderson actually had a good faith belief that it was necessary to retrieve her gun in order to prevent Tihomas from possessing it, nor that such a belief was objectively reasonable under all the circumstances.
While Anderson's attorney speculated about such a belief in his opening statement, no evidence of such a belief was presented.
[¶21] In addition, there was no evidence that Anderson lacked any alternative but to retrieve her gun, as there was no evidence Tihomas was aware of the gun's location before Anderson retrieved it. See Hernandez, 45 N.E.3d at 376 (noting prerequisite 2 for the necessity defense). For the same reason, there was evidence that Anderson substantially contributed to the creation of the "emergency" of Tihomas possessing a loaded firearm by retrieving it from under the passenger seat. Id. (regarding prerequisite 6). Thus, the trial court did not abuse its discretion when it denied Anderson's request for a jury instruction on the defense of necessity as that instruction was not supported by the evidence. See Phillips, 22 N.E.3d at 761.
Intoxication Instruction
[¶22] Finally, Anderson challenges the trial court's decision to give jury instruction number thirteen, which reads: "Voluntary intoxication is not a defense to the charge of reckless homicide, a Level 5 felony. You may not take voluntary intoxication into consideration in determining whether the defendant acted recklessly, as charged in the amended information." App. v. II at 122.
[¶23] Indiana Code Section 35-41-2-5 provides: "Intoxication is not a defense in a prosecution for an offense and may not be taken into consideration in determining the existence of a mental state that is an element of the offense unless the defendant meets the requirements of IC 35-41-3-5 [regarding involuntary intoxication]." Thus, instruction thirteen accurately states the law. See Phillips, 22 N.E.3d at 761. Moreover, there was evidence in the record supporting the instruction, as there was evidence that Anderson had been drinking alcohol on the evening in question. See id. And Anderson has not pointed to any other instruction that covered the substance of instruction thirteen. See id.
[¶24] Nevertheless, Anderson contends that the instruction was given in error because she did not raise the defense of intoxication. However, both this Court and the Indiana Supreme Court have held that the intoxication instruction was properly given where it correctly stated the law, was supported by the evidence, and was not covered by other instructions-even when the defendant did not raise intoxication as a defense. See Schweitzer v. State, 552 N.E.2d 454, 458 (Ind. 1990); Phillips v. State, 22 N.E.3d at 761-62. We reach the same conclusion here.
Conclusion
[¶25] To the extent the trial court erred when it refused to give Anderson's proposed limiting instruction on Rule 404(b) evidence, the error was harmless and not reversible. And the trial court did not abuse its discretion when it refused to give a jury instruction regarding the defense of necessity and gave a jury instruction on voluntary intoxication.
[¶26] Affirmed.
Altice, C.J., and Mathias, J., concur.