COA orders new criminal recklessness trial after jury instruction error

A mother who backed over her aunt with a vehicle before fleeing the scene with her child in the car has won a new trial on a criminal recklessness conviction, though the Indiana Court of Appeals declined to overturn her related conviction of resisting law enforcement.

In Leslie Michelle New v. State of Indiana, 19A-CR-575, Orange County sheriff’s deputies were called to Barbara and Joe New’s Paoli home in September 2015 after Leslie New, their niece, attempted to take her daughter from the home. Barbara and Joe had entered into a third-party custody agreement with Leslie so that the couple could care for her daughter, M.N., while Leslie “was having a tough time.”

Barbara and Leslie began to argue when Barbara refused to tell Leslie where M.N.’s gymnastics class was held. Leslie took M.N. to her car, and after a scuffle with both Barbara and Joe, she backed into Barbara and knocked her to the ground before driving away.

Barbara was on the phone with 911 during the incident, and Chief Deputy Dennis Lanham observed a vehicle matching Leslie’s while en route to the home. Lanham initiated a traffic stop, and Leslie “kind of just stared” at him until he opened the door and she stepped out of the vehicle.

But after saying she wanted to “straighten this out” with her aunt and uncle, New attempted to get back in the vehicle four times before she was handcuffed during a struggle. She was then arrested for resisting law enforcement and later charged with criminal recklessness for backing into Barbara, among other charges.

New was convicted only on the resisting and criminal recklessness charges, and she appealed both convictions. The Indiana Court of Appeals entered a partial reversal in her favor Thursday, finding the Orange Circuit Court erred in refusing to give a tendered jury instruction.

Specifically, New had submitted a proposed instruction regarding the definition of negligence as it related to the criminal recklessness charge. In declining the instruction, the trial court said it didn’t want the negligence definition to confuse the jury.

But “(u)nder the circumstances presented, we conclude that (Leslie) New’s proposed instruction was a correct statement of law, was based upon the evidence, was not covered by other instructions, and was necessary to enable the jury to fairly consider (Leslie) New’s theory or defense,” Judge Terry Crone wrote.

“It is well settled that ‘[a] criminal defendant is entitled to have a jury instruction on ‘any theory or defense which has some foundation in the evidence,’” Crone wrote, citing Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015). “…Contrary to the State’s assertion, simply allowing New’s counsel to argue that what she did was negligent rather than reckless was an inadequate substitute for an instruction from the trial court explaining the concept.”

Thus, finding Leslie’s “substantial rights were prejudiced by the trial court’s failure to give the instruction,” the COA remanded the case for a new trial on the criminal recklessness charge. In a footnote, Crone said the appellate court would not consider her sufficiency-of-the-evidence argument on that conviction, because the issue of the jury instruction was dispositive.

But the appellate court did consider her sufficiency argument as to the resisting conviction, finding sufficient evidence to uphold that conviction. Crone pointed specifically to testimony that Lanham “had to grab New by the shoulders to try to prevent her from yet again ignoring his commands.”

“The jury could reasonably infer from this evidence that New engaged in at least a modest exertion of strength to impede Deputy Lanham in the execution of his duties as a police officer,” he wrote.

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