A Rochester woman convicted in a school bus crash that killed three children and seriously injured a fourth had her misdemeanor reckless driving conviction vacated Monday on double jeopardy grounds. However, her felony convictions will stand.
A Fulton County jury last year convicted Alyssa Shepherd of three counts of reckless homicide, as well as criminal recklessness and passing a school bus, causing injury. Shepherd was sentenced in December to four years in prison for the October 2018 crash that killed 6-year-old twin brothers Xzavier and Mason Ingle and their 9-year-old sister Alivia Stahl and seriously injured another child.
In a brief to the appellate court, Bargersville attorney Stacy Uliana wrote on behalf of Shepherd that the state “failed to present sufficient evidence” that Shepherd acted recklessly as opposed to negligently. The brief stated that because Shepherd was not drinking, texting or otherwise distracted, her actions were “an error in judgement,” not reckless homicide.
The brief also asserted that the jury at Shepherd’s trial was not given proper instruction on the distinction between criminal recklessness and negligence, and that her convictions of criminal recklessness and passing a school bus causing injury violated Indiana’s double jeopardy statutes, meaning one of the two convictions must be vacated.
An appellate panel on Monday affirmed in part and declined to disturb the jury’s verdicts, first finding that in light of Beeman v. State, 232 Ind. 683, 690, 115 N.E.2d 919, 922 (1953), and the totality of the evidence, the jury reasonably concluded that Shepherd recognized that the vehicle before her in the road was a stopped school bus or that she was aware of conditions that would have disclosed that fact to any reasonable person.
“Despite that knowledge, Shepherd made a conscious and voluntary decision not to stop or decrease her speed and, instead, to drive ahead and ‘wait to get closer to the vehicle to determine what they were doing[.],” Judge Patricia Riley wrote for the appellate court. “… We conclude that the jury could have reasonably determined that a person who has decided to drive full highway speed toward a vehicle she knows is a stopped school bus has acted in conscious disregard of the harm that may result.”
The appellate panel further found that the Fulton Superior Court did not abuse its discretion in rejecting Shepherd’s proposed instruction on what evidence will not support a charge of reckless homicide.
“Here, Shepherd does not detail for us what evidence she argues supports the portions of her proffered instruction regarding inadvertence, lack of attention, forgetfulness, or thoughtfulness. Even if there were evidence to support Shepherd’s defense theory that the collision resulted from an error of judgment on her part, she did not offer a separate instruction limited just to that wording. Given the lack of evidence to support the giving of Shepherd’s proposed instruction, we find no abuse of the trial court’s discretion in declining to give it,” the panel concluded.
However, the appellate panel vacated Shepherd’s Class A misdemeanor reckless driving conviction and left standing her Level 6 felony criminal recklessness conviction due to double jeopardy concerns.
“On appeal, the State acknowledges its concession and reiterates that ‘both convictions are based on the same act of recklessly driving past the stopped school bus and injuring [M.L.], and both were established by the same evidence.’ Had the State’s concessions been based completely on its understanding that Shepherd’s dual convictions violated (Richardson v. State‘s, 717 N.E.2d 32 (Ind. 1999)) ‘same evidence’ test, we would conclude those concessions were no longer valid because, as a new rule of criminal procedure, (Wadle v. State, — N.E.3d —, 2020 WL 4782698, (Ind. Aug. 18, 2020)) was potentially applicable to this case,” Riley wrote. “… However, since the State’s concessions were also based upon common law double jeopardy principles, we will honor them.”
As to Shepherd’s suspended driver’s license, the appellate court remanded with instructions to the trial court to issue a new sentencing order expressly indicating that her license suspensions are to be served concurrently, finding that it cannot be discerned from the record before it whether the trial court impermissibly imposed consecutive suspensions of Shepherd’s driving privileges.