Opinion
24A-CR-311
10-11-2024
Neil Allen Escue, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff
ATTORNEY FOR APPELLANT Nicole A. Zelin Pritzke & Davis, LLP Greenfield, Indiana ATTORNEYS FOR APPELLEE Theodore E. Rokita Attorney General of Indiana Jennifer Brooke Anwarzai 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 Appellate Rule 65(D), this Memorandum Decision is not binding precedent for any court and may be cited only for persuasive value or to establish res judicata, collateral estoppel, or law of the case.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 Hancock Superior Court The Honorable Dan E. Marshall, Judge Trial Court Cause No. 30D02-2305-F6-743
ATTORNEY FOR APPELLANT
Nicole A. Zelin
Pritzke & Davis, LLP
Greenfield, Indiana
ATTORNEYS FOR APPELLEE
Theodore E. Rokita
Attorney General of Indiana
Jennifer Brooke Anwarzai
Deputy Attorney General
Indianapolis, Indiana
May and Weissmann Judges concur.
MEMORANDUM DECISION
Foley, Judge.
[¶1] Following a jury trial, Neil Allen Escue ("Escue") was found guilty of Level 6 felony criminal recklessness committed with a deadly weapon. The trial court sentenced Escue to two years, with the first 180 days executed in the Hancock County Jail followed by 545 days on community corrections as a direct commitment. The trial court also entered a domestic violence determination at sentencing. On appeal, Escue raises three issues, which we consolidate and restate as follows:
I. Whether there was sufficient evidence to support that: (A) his conduct created a substantial risk of bodily injury; and (B) he used his truck as a deadly weapon; and
II. Whether the trial court erred when it found the victim qualified as a family or household member, thus warranting the trial court's domestic violence determination.
[¶2] We affirm in part and reverse in part.
We held an oral argument on August 28, 2024, at Rising Sun High School. We thank the parties and the high school for their participation, and we thank the advocates for their skilled presentations.
[¶3] Escue and Justus Green ("Green") were involved in a five-year-on-and-off relationship that ended a few years prior to the instant offense. In May of 2023, Escue lived alone and was renting a house located on East Mill Street in Fortville, Indiana. On May 15, 2023, John Boggess ("Boggess") was working outside at a job site located across from Escue's residence when he heard a vehicle crash, which caused him to stop what he was doing and turn around to see what happened. Boggess observed a four-door silver Honda-later identified as Green's vehicle-drive around the corner away from the scene of the collision. Moments later, Boggess observed Green's vehicle return and park on the street in front of Escue's house.
[¶4] Green then got out of her vehicle and walked on the sidewalk towards Escue's house. Escue, who was on the front porch of his house at this point, walked to his white Ford F-150 truck and drove down the street, ultimately making a right turn. In the meantime, Green got back inside her vehicle and drove around the block. Escue followed Green in his truck and hit the back of her vehicle with his truck while Green was inside. Green once again parked her vehicle in front of Escue's home, got out, and walked on the sidewalk. Escue also parked and got out of his truck. Boggess's coworker called out to Escue that "[t]his is not how we treat ladies," to which Escue responded, "This is why I bought this brush guard." Tr. Vol. II p. 130-131. Escue then made his way back to his porch.
A brush guard sits in front of the bumper on a vehicle and it can be utilized to ram or attack a vehicle. In the law enforcement world, it is sometimes used to "push vehicles off the road to end pursuits[.]" Tr. Vol. II p. 153.
[¶5] Green got back inside her vehicle and once again drove around the block. Green eventually returned, parked her vehicle in the same spot, got out of her vehicle, and again walked on the sidewalk towards Escue's house. Escue and Green began talking to one another. Boggess testified that he did not hear them yelling or screaming at one another. Escue and Green then returned to their respective vehicles. Green began to drive away from the curb. Escue followed her and drove into the back of her vehicle twice, which caused Green's vehicle to be pushed forward both times. Boggess recorded a video of the final occurrence on his phone, and his coworker called the police.
[¶6] Officer Phillip Allen ("Officer Allen") arrived at the scene and observed the two vehicles. The back of Green's vehicle had extensive damage, and the trunk lid was smashed, elevated, and would not properly close. The brush guard on Escue's truck was discolored with silver paint matching that of Green's vehicle. Officer Allen observed Green in the driver seat of her vehicle, "crying uncontrollably and almost inconsolable." Id. at 149. Officer Allen asked Green, "Who did this?" referring to the damage on her vehicle. Id. at 151. Green responded, "Him." Id. When Officer Allen asked Green to clarify who "him" was, Green identified Escue by his first name. Id. When Officer Allen asked Green if she needed medical attention, Green replied, "No." Id. at 16162.
[¶7] Officer Allen next spoke with Escue, who told him that he "tapped" Green's vehicle because "he wanted her to leave . . . [and] that he needed to protect his property[.]" Id. at 156. Escue eventually admitted to "being in the wrong for hitting" Green's vehicle and told Officer Allen that "he should have called [the police] and that he messed up." Id. at 157.
[¶8] The State charged Escue with: Count I, criminal recklessness as a Level 6 felony; Count II, domestic battery as a Class A misdemeanor; and Count III, criminal mischief as a Class B misdemeanor. The trial court issued a nocontact order restricting Escue from having contact with Green. Subsequently, Green petitioned for the no-contact order to be dismissed, and the trial court vacated the order.
[¶9] A jury trial was held. Boggess and Officer Allen testified. Boggess testified that Escue and Green were both using their "normal tone of voice" when he observed them talking. Id. at 130. Officer Allen testified that, to his knowledge, Escue and Green were involved in an "[o]ff-and-on intimate relationship." Id. at 151. Throughout his experience as a law enforcement officer, Officer Allen has responded to a number of vehicle collisions "with extensive property damage and somehow no physical damage to the people inside" and others with "less property damage than [the instant collision] but more physical damage" to the occupants. Id. at 152. When responding to a vehicle crash, Officer Allen testified that the non-visible injuries he is concerned about include head injuries, internal injuries, and perforated or lacerated internal organs.
[¶10] The State moved to dismiss Count II, and the trial court granted the State's motion. Escue moved for directed verdict on Count III, and the trial court granted Escue's motion. The jury found Escue guilty of criminal recklessness. In the presentence investigation report, Escue described his relationship with Green as a five year "on/off relationship" that "ended a few years ago[.]" Appellant's App. Vol. III p. 95.
[¶11] A sentencing hearing was held, and Green testified that she would describe her relationship with Escue as "[f]riends." Tr. Vol. II p. 237. The trial court sentenced Escue to two years, with the first 180 days executed in the Hancock County Jail followed by 545 days on community corrections as a direct commitment. The State also sought a domestic violence determination pursuant to statute. The trial court entered a domestic violence determination, explaining that: "The statute does not require you being convicted of domestic battery. It requires that a[n] act of . . . domestic violence occur, and [the trial court] find[s] that was proven at trial." Id. at 244. Escue now appeals.
Discussion and Decision
I. Sufficiency of the evidence
[¶12] When there is a challenge to the sufficiency of the evidence, "[w]e neither reweigh evidence nor judge witness credibility." Gibson v. State, 51 N.E.3d 204, 210 (Ind. 2016), cert. denied. Instead, we consider only the evidence most favorable to the judgment together with all reasonable inferences drawn therefrom. Id. "We will affirm the judgment if it is supported by substantial evidence of probative value even if there is some conflict in that evidence." Id. Indeed, we will ultimately "affirm the conviction unless no reasonable fact- finder could find the elements of the crime proven beyond a reasonable doubt." Love v. State, 73 N.E.3d 693, 696 (Ind. 2017).
[¶13] Here, Escue was convicted of criminal recklessness as a Level 6 felony. This offense is defined in Indiana Code section 35-42-2-2(a), which provides as follows: "A person who recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person commits criminal recklessness." The offense is elevated to a Level 6 felony if it is committed while armed with a deadly weapon. Ind. Code § 35-42-2-2(b)(1)(A).
[¶14] To obtain the conviction for criminal recklessness as a Level 6 felony, the State was required to prove beyond a reasonable doubt that Escue: (1) recklessly; (2) performed an act that created a substantial risk of bodily injury to Green; (3) while armed with a deadly weapon. Here, Escue only challenges the last two elements of his criminal recklessness conviction. Therefore, he concedes that sufficient evidence was presented to prove the element of recklessness.
A. Substantial Risk of Bodily Injury
[¶15] Escue contends that there was insufficient evidence that his conduct created a substantial risk of bodily injury. A "substantial risk" is one that has "substance or actual existence." Woods v. State, 768 N.E.2d 1024, 1027 (Ind.Ct.App. 2002). "Here, the criminal recklessness statute does not require that the defendant 'cause' any injury; rather the crime is committed if the defendant recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another." DeWhitt v. State, 829 N.E.2d 1055, 1062 (Ind.Ct.App. 2005) (citing Ind. Code § 35-42-2-2(b)(1)) (emphasis in original). Thus, the question is whether Escue created a substantial risk of bodily injury, not whether he "caused" any injury. See id.
[¶16] Escue asserts that his actions in "slowly" driving his truck "into the rear of Green's vehicle" while Green was inside did not pose a substantial risk of bodily injury to Green. Appellant's Br. p. 8; see also Appellant's Reply Br. p. 4. While Escue admits that his actions caused damage to Green's vehicle, he maintains that his actions did not create a substantial risk of bodily injury and points out that Green was "physically uninjured." Id. The State, on the other hand, argues that Escue created a substantial risk of both external and internal injuries and directs us to Elliott v. State, 560 N.E.2d 1266 (Ind.Ct.App. 1990), and Boushehry v. State, 648 N.E.2d 1174 (Ind.Ct.App. 1995), to support its contention.
[¶17] In Elliott, this court reversed a criminal recklessness conviction because there was no evidence of anyone being in the defendant's line of fire or in the areas where the bullets might have landed. Elliott, 560 N.E.2d at 1267. This court distinguished the factual scenario from others where there was a clear risk to specific individuals and concluded that the possibility of a concealed hunter in the woodlands was mere conjecture and presented only a remote, rather than substantial, risk of bodily injury. Id. This court emphasized that for a risk to be "substantial," it must have "substance or actual existence," which was not demonstrated under the circumstances. Id. In Boushehry, this court reversed a criminal recklessness conviction, reasoning that there was no evidence that "anyone was in or near [the defendant's] line of fire." Boushehry, 648 N.E.2d at 1177.
[¶18] Unlike in Elliott and Boushehry, there is no question here that Green was the focus of Escue's conduct in light of Escue's statement that he rammed into Green's vehicle because he wanted her to leave. Escue repeatedly struck Green's vehicle while she was inside, creating a substantial risk of bodily injury to Green and he struck Green's vehicle with enough speed and force to cause extensive damage such that the trunk lid was smashed, elevated, and would not properly close. Although Green did not suffer visible injuries, Officer Allen's testimony spoke to the substantial risk of non-visible injury posed by Escue's conduct. Indeed, Officer Allen testified that he has responded to collisions with less visible damage but with severe occupant injuries, highlighting his concerns about potential head trauma and internal injuries such as perforated or lacerated organs. Therefore, the evidence was sufficient for a reasonable factfinder to conclude that Escue repeatedly ramming his truck into the back of Green's vehicle created a substantial risk of bodily injury to Green. See DeWhitt, 829 N.E.2d at 1062 (concluding that the jury could reasonably conclude that the defendant's "actions of driving his vehicle through a gate in an attempt to flee" created a substantial risk of bodily injury).
B. Use of Truck as a Deadly Weapon
[¶19] Escue next claims the State failed to present sufficient evidence to prove that he used his truck as a deadly weapon. Indiana Code section 35-31.5-2-86(a)(2) defines "deadly weapon" as, among other things, any "material that in the manner it: (A) is used; (B) could ordinarily be used; or (C) is intended to be used; is readily capable of causing serious bodily injury." In light of that statutory definition, we have repeatedly stated that whether an object is a "deadly weapon" on a given set of facts is determined from the nature of the object, the manner of its use, and the circumstances of the case. E.g., Gleason v. State, 965 N.E.2d 702, 708 (Ind.Ct.App. 2012). "We have further instructed that '[w]hether an object is a deadly weapon based on these factors is a question of fact. The original purpose of the object is not considered. Rather, the manner in which the defendant actually used the object is examined.'" Burgh v. State, 79 N.E.3d 955, 957 (Ind.Ct.App. 2017) (citation omitted). In certain circumstances, an automobile may be considered a "deadly weapon." See DeWhitt, 829 N.E.2d at 1064 (involving a circumstance where the defendant drove his vehicle through a gate and struck the victim's leg with his bumper); see also Solomon v. State, 570 N.E.2d 1293, 1295 (Ind.Ct.App. 1991) (involving a circumstance where the defendant put his car in reverse and accelerated it directly at the victim, who luckily avoided being hit by the defendant's car). Whether the victim sustained actual injuries does not matter if "the defendant had the apparent ability to injure the victim seriously through his use of the object during the crime." Millerv. State, 500 N.E.2d 193, 196-97 (Ind. 1986).
[¶20] Escue claims that the State failed to prove that he used his truck as a deadly weapon because his low-speed collision with Green's vehicle failed to demonstrate a substantial risk of bodily injury to Green. According to Escue, the manner in which he used his truck in this instance "was not consistent with a determination that his use of the vehicle was in the capacity of a deadly weapon." Appellant's Br. p. 10.
[¶21] Gleason involved a victim who was struck by a vehicle operated in a frantic manner by the defendant. 965 N.E.2d at 709. This court upheld the defendant's conviction, reasoning that "it is apparent that [the defendant] drove without any regard to the potential harm that could result to" the victim and that the rate of the defendant's "acceleration to the point of leaving tire marks on the [road] amounts to a substantial deviation from the acceptable standard of driving a vehicle." Id.
[¶22] Although Gleason focused on the recklessly element, which is not at issue in this case, Escue distinguishes the facts of this case from those in Gleason, noting that Green was inside her car and not struck directly, and thus, the manner in which he used his vehicle was not in the "capacity of a deadly weapon." Appellant's Br. p. 10. Escue contends that he did not use his vehicle as a deadly weapon because he slowly moved his truck "to push Green forward in her vehicle" unlike the defendant in Gleason, who operated his vehicle in a "frantic" manner. Id. Unlike the victim in Gleason, Escue emphasizes that Green was inside her vehicle when he struck her vehicle and that Green did not sustain any physical injuries from his actions.
[¶23] Escue incorrectly assumes that the classification of an object as a deadly weapon depends on actual contact or injury. However, whether an object is a deadly weapon depends on the manner in which the object is used. See Burgh, 79 N.E.3d at 957. In his contention, Escue focuses on evidence favorable to his position. But he declines to address inculpatory evidence indicating that he repeatedly crashed the front of his truck into the back of Green's smaller vehicle-while she was inside-with enough force to cause extensive damage to the back of Green's vehicle. Escue also declines to address his statement- "[t]his is why I bought this brush guard"-which demonstrates that he was aware that the brush guard had the ability to increase the force of the collision, in light of Officer Allen's testimony that a brush guard is sometimes used to "push vehicles off the road to end pursuits[.]" Tr. Vol. II pp. 131, 153. Furthermore, Officer Allen testified that he is always concerned about non-visible injuries such as head injuries, internal injuries, and perforated or lacerated internal organs when responding to any vehicle crash, including those collisions that appear less severe than the one caused by Escue. The State presented sufficient evidence demonstrating that Escue used his truck as a deadly weapon.
II. Domestic Violence Determination
[¶24] Escue argues that the trial court abused its discretion when it entered a domestic violence determination at the sentencing hearing. However, his arguments challenge the sufficiency of the evidence supporting the trial court's factual determination. When an appellant appeals a judgment entered by the trial court without a jury, "we employ a clearly erroneous standard of review." Ind. Trial Rule 52(A). "Under this standard, we review only for sufficiency of the evidence." State v. Oney, 993 N.E.2d 157, 161 (Ind.2013). "We neither reweigh the evidence nor determine the credibility of witnesses." Id. "We consider only the probative evidence and reasonable inferences supporting the judgment and reverse only on a showing of clear error." Id. Clear error is "that which leaves us with a definite and firm conviction that a mistake has been made." Id. (citation omitted).
[¶25] Indiana Code section 35-38-1-7.7 provides:
(a) At the time of sentencing, a court shall determine whether a person has committed a crime of domestic violence (as defined in IC 35-31.5-2-78).
(b) A determination under subsection (a) must be based upon:
(1) evidence introduced at trial; or
(2) a factual basis provided as part of a guilty plea.
[¶26] As defined by statute, a "crime of domestic violence" means an offense or the attempt to commit an offense that:
(1) has as an element the:
(A) use of physical force; or
(B) threatened use of a deadly weapon; and
(2) is committed against a family or household member, as defined in section 128 of this chapter.I.C. § 35-31.5-2-78. Section 128 provides, in pertinent part, that: "An individual is a 'family or household member' of another person if the individual . . . is a current or former spouse of the other person . . . [or] is dating or has dated the other person . . . [or] is or was engaged in a sexual relation with the other person." "The statute's plain language does not require a conviction for an offense that explicitly contains a domestic violence element." Kazmier v. State, 863 N.E.2d 912, 916 (Ind.Ct.App. 2007). Instead, the determination is based upon the factual evidence supporting the underlying conviction. Id. (citing I.C. § 35-38-1-7.7(b)).
[¶27] Escue contends that the only evidence presented at trial failed to establish that Green was a "family or household member" as defined by statute. In support of his position, Escue highlights the following: (1) Green did not testify at trial; (2) Escue never testified as to the nature of his relationship with Green; and (3) Officer Allen had no personal knowledge regarding whether Escue and Green were married, previously married, dating, or in a sexual relationship. According to Escue, the evidence was insufficient to establish Green as a family or household member. We agree.
[¶28] The only evidence that alluded to the nature of relationship between Escue and Green was Officer Allen's testimony describing their relationship as an "off-and-on intimate relationship." Tr. Vol. II p. 151. The State contends that Officer Allen's testimony "qualified Green as a family or household member because she was either dating or had dated [Escue] at or prior to the time of the offense." Appellee's Br. p. 18. We disagree. Officer Allen's characterization of the relationship as "off-and-on intimate" was too vague and non-specific to meet the statutory definition. "Intimate" is defined as "associated in close personal relations." DICTIONARY.COM, https://www.dictionary.com/browse/intimate (last visited on October 9, 2024). In this context, the word is ambiguous and could be interpreted to mean that Escue and Green shared any number of types of relationships other than that of a current or former spouse, girlfriend, or sexual partner. Therefore, the record is devoid of any evidence at trial demonstrating that Green was a family or household member. The trial court's domestic violence determination was clearly erroneous.
Pursuant to Indiana Code section 35-38-1-7.7, we only considered evidence presented at trial.
Conclusion
[¶29] We conclude that the State presented sufficient evidence to support Escue's conviction for criminal recklessness as a Level 6 felony because there was evidence at trial proving that Escue's actions created a substantial risk of bodily injury to Green and that he used his truck as a deadly weapon. However, we reverse the trial court's domestic violence determination because there was no sufficient evidence to prove such determination.
[¶30] Affirmed in part and reversed in part.
Vaidik, J. and Weissmann, J., concur.