Crone, J.
Leslie Michelle New appeals her convictions, following a jury trial, for level 5 felony criminal recklessness and class B misdemeanor resisting law enforcement. She asserts that the trial court abused its discretion in refusing to give one of her tendered jury instructions, and that her substantial rights were prejudiced as a result. She also asserts that the State presented insufficient evidence to support her convictions. We agree with New that the trial court abused its discretion in instructing the jury and that her substantial rights were prejudiced as to her criminal recklessness conviction. Accordingly, we reverse that conviction and remand for a new trial. We find that the State presented sufficient evidence to support New’s conviction for resisting law enforcement, so we affirm that conviction.
In the summer of 2015, New’s five-year-old autistic daughter, M.N., began residing on a permanent basis with New’s aunt and uncle, Barbara and Joe New, in their double-wide mobile home located on sixty-one acres of property in Paoli. … New granted Barbara and Joe a power of attorney so that they could make decisions on M.N.’s behalf. During that summer, New did not visit her daughter much. …
On Monday, September 14, 2015, New showed up unannounced to Barbara and Joe’s house around 3:15 p.m. After New visited with M.N. for approximately one hour, Barbara informed New that M.N. was scheduled for her first gymnastics class at 5:00 p.m. …The women began arguing after Barbara refused to tell New the location of the class because Barbara did not want New to come to the class and “cause problems.” New grabbed M.N.’s hand, led her to her vehicle, and placed the child in the front passenger seat. Barbara followed, asking New what she was doing, and telling her that M.N. had school the next morning. Barbara attempted to unbuckle the seatbelt and remove M.N. from the vehicle. Barbara was unable to get M.N. unbuckled and out of the vehicle, so she told New that she was going to call the police. …
Barbara stood behind the vehicle as Joe came outside and walked to the driver’s-side door, trying to block New from entering the vehicle. Joe grabbed New’s car keys out of her hand and yelled to Barbara that he had the keys. Still standing directly behind the vehicle, Barbara yelled back that New had another set of keys and that she could see that New was looking through her purse for the extra set.
New located her extra set of keys, got in the vehicle, locked the door, and started the engine. New put the vehicle in reverse and backed up, bumping into Barbara and knocking her to the ground. Barbara screamed, and New then pulled the vehicle forward, “circled through the yard[,]” and drove away. …
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The State subsequently charged New with level 5 felony battery by means of a deadly weapon, class B misdemeanor criminal recklessness, and class A misdemeanor resisting law enforcement. Following a three-day trial, the jury found New guilty of criminal recklessness and resisting law enforcement, but not guilty of battery by means of a deadly weapon. The trial court imposed consecutive sentences of 180 days, with eighty-two days executed and ninety-eight days suspended, with credit for eighty-two days previously served, on the criminal recklessness count, and 365 days, fully suspended, on the resisting law enforcement count.
Because we find it dispositive to our resolution of New’s appeal as it pertains to her criminal recklessness conviction, we first address her challenge to the trial court’s instruction of the jury. Specifically, New asserts that the trial court abused its discretion in refusing to give her proposed instruction regarding the definition of negligence as it related to the criminal recklessness charge. … On review, we consider “(1) whether the tendered instruction correctly states the law; (2) whether there was evidence presented at trial to support giving the instruction; and, (3) whether the substance of the instruction was covered by other instructions that were given.” …
To convict New of class B misdemeanor criminal recklessness, the State was required to prove beyond a reasonable doubt that New recklessly, knowingly, or intentionally performed an act that created a substantial risk of bodily injury to another person. See Ind. Code § 35-42-2-2(a). The State’s theory here was that New behaved recklessly when she backed her vehicle into Barbara. “A person engages in conduct ‘recklessly’ if [s]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.” Ind. Code § 35-41-2-2(c).
Regarding final jury instructions, New requested that, in addition to being instructed on the definitions of recklessly, knowingly, and intentionally, the jury be given an instruction defining negligence and distinguishing between negligence and recklessness. …
The trial court denied counsel’s request, concluding that the pattern jury instructions on the three applicable levels of culpability for criminal recklessness were sufficient. The court determined that adding an instruction regarding negligence could confuse the jury because “I don’t want the jury thinking that there’s a negligence culpability that’s available … either [the State] met [its] burden [on one of the three applicable levels] or [it] didn’t.” …
In support of her argument that the trial court’s decision constituted an abuse of discretion as well as reversible error, New directs our attention to the fact that in at least two instances, Indiana appellate courts have reversed reckless homicide convictions based on incidents involving the operation of a motor vehicle where the trial court failed to give the defendant’s proposed jury instructions regarding negligence. Cichos v. State, 243 Ind. 187, 184 N.E.2d 1 (1962); Sipp v. State, 514 N.E.2d 330 (Ind. Ct. App. 1987). …
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We are convinced that this is a case where there is a legal question of negligence at stake, as New was engaged in conduct that can be undertaken with due care, namely operating a motor vehicle. The main theory of New’s defense was that she backed her vehicle into Barbara completely on accident. 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.’” Hernandez v. State, 45 N.E.3d 373, 376 (Ind. 2015) (quoting Toops v. State, 643 N.E.2d 387, 389 (Ind. Ct. App. 1994)). New’s claim that she was only negligent was at least a theory, with some foundation in the evidence, that could have led to her acquittal, and therefore she was entitled to have a jury instruction explaining that theory. … Understanding the difference between reckless and negligent conduct is not an easy task, and “even those trained in the legal profession have grappled with abstract notions regarding degrees of culpability.” Taylor v. State, 457 N.E.2d 594, 599 (Ind. Ct. App.1983).
Under the circumstances presented, we conclude that 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 New’s theory or defense. As such, New’s substantial rights were prejudiced by the trial court’s failure to give the instruction. Therefore, we reverse New’s criminal recklessness conviction and remand for a new trial as to that charge.
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Affirmed in part, reversed in part, and remanded.
Baker, J., and Kirsch, J., concur.