Someone shooting at a residence, for purposes of a criminal recklessness prosecution, may create a substantial risk of bodily injury to another person even if the resident is away from the home at the moment of the shooting, the Indiana Court of Appeals held in a first impression case.

Kenneth Tipton shot at police who arrived at his home to arrest him on suspicion of domestic battery. Some of the shots hit the house of Adam Mullis and his wife, who were not home at the time. Tipton was convicted of Class C felony criminal recklessness, dealing in marijuana and being a habitual offender.  

Tipton challenged his criminal recklessness conviction, arguing that the state didn’t prove the element “substantial risk of bodily injury to another person” because the Mullises weren’t home when the shots were fired.

The judges found Tipton’s acts did create a substantial risk of bodily injury to the couple. Tipton claimed that the house was not an “inhabited dwelling” as the statute requires since the Mullises weren’t home. The appellate court pointed out that it’s never addressed whether a dwelling remains “inhabited” when the people who live there are temporarily away from the home, but it cited decisions from other jurisdictions that are instructive.

“We adopt the reasoning of those courts that have held the fact the occupants of a house were not physically present does not lessen the risk of danger to others or the recklessness of his behavior and that shooting at a structure currently used as a dwelling poses a great risk or ‘high probability’ of death. We accordingly hold a residence may be ‘inhabited’ for criminal recklessness purposes if someone is likely to be inside,” Judge Melissa May wrote in Kenneth S. Tipton v. State of Indiana,
47A01-1201-CR-4.