ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
JOHN D. CLOUSE STEVE CARTER
IVAN A. ARNAEZ
Attorney General of Indiana
Clouse Law Offices
ELLEN H. MEILAENDER
Deputy Attorney General
COURT OF APPEALS OF INDIANA
MICHAEL C. ARMSTRONG, )
vs. ) No. 26A05-0401-CR-12 )
STATE OF INDIANA, )
INTERLOCUTORY APPEAL FROM THE GIBSON SUPERIOR COURT
The Honorable Earl G. Penrod, Judge
Cause No. 26A05-0401-CR-12
November 23, 2004
OPINION FOR PUBLICATION
Michael C. Armstrong (Armstrong) was charged in the Gibson Superior Court with failure
to stop after an accident resulting in death, a Class C felony.
Armstrong moved to dismiss the charge. Following a hearing, the trial court
denied the motion to dismiss. Thereafter, the trial court certified the matter
for interlocutory appeal, and we accepted jurisdiction pursuant to Appellate Rule 14(B).
Armstrong raises one issue: whether he was involved in an accident for
purposes of Indiana Code section 9-26-1-1. Concluding that Armstrong was involved in
an accident, but that our interpretation of the statute should not be applied
retroactively to Armstrong, we reverse.
Facts and Procedural History
On May 31, 2003, Craig Mobley (Mobley) was a passenger in a 1998
Ford Expedition driven by Armstrong. As the two headed south on County
Road 400W in Fort Branch, Indiana, Mobley jumped out of the vehicle while
it was moving. Armstrong immediately believed that Mobley had been injured because
he did not move once he hit the ground. However, Armstrong did
not stop at the scene, nor did he use his cell phone to
call for help. Instead, he continued driving south.
A short time later, the property owner discovered Mobley lying motionless in his
yard near the road and called 911. Approximately one hour after emergency
responders had arrived at the scene, Armstrong returned with his father and informed
police that Mobley had jumped out of his vehicle while it was in
motion. Mobley later died as a result of his injuries.
On June 16, 2003, the State charged Armstrong with failure to stop after
an accident resulting in death, a Class C felony. On October 15,
2003, Armstrong filed a motion to dismiss, citing
Honeycutt v. State, 760 N.E.2d
648 (Ind. Ct. App. 2001), and arguing that Indiana Code section 9-26-1-1 did
not apply because Mobley had not been struck by Armstrongs vehicle. The
trial court held a hearing on the motion on November 14, 2003.
On December 17, 2003, the trial court issued a detailed order denying Armstrongs
motion to dismiss. The trial court certified the order for interlocutory appeal
and this court accepted jurisdiction on February 20, 2004.
Discussion and Decision
Armstrong argues that the trial court improperly denied his motion to dismiss the
charge against him because Indiana Code section 9-26-1-1 does not apply. Specifically,
he argues that he was not involved in an accident for purposes of
the statute because his vehicle did not strike Mobley.
The interpretation of a statute is a question of law which we review
de novo. Under a de novo review standard, we owe no deference
to the trial courts legal conclusions. If the language of a statute
is clear and unambiguous, it is not subject to judicial interpretation. However,
when the language is susceptible to more than one construction, we must construe
the statute in accord with the apparent legislative intent.
Woodward v. State, 798 N.E.2d 260, 262 (Ind. Ct. App. 2003), trans. denied
(quoting State v. Gibbs, 769 N.E.2d 594, 596 (Ind. Ct. App. 2002), trans.
The best evidence of legislative intent is the language of the statute, giving
all words their plain and ordinary meaning unless otherwise indicated by the statute.
Brown v. State, 790 N.E.2d 1061, 1063-64 (Ind. Ct. App. 2003).
We will presume that the legislature intended the language used in the
statute to be applied logically and not to bring about an unjust or
absurd result. Id. at 1064. We must also strictly construe
penal statutes against the State to avoid enlarging them beyond the fair meaning
of the language used. Hatcher v. State, 762 N.E.2d 170, 172-73 (Ind.
Ct. App. 2002), trans. denied. Though penal laws are to receive a
strict construction, they are not to be construed so strictly as to defeat
the obvious or expressed intent of the legislature. Fuller v. State, 752
N.E.2d 235, 238 (Ind. Ct. App. 2001).
Undefined words in a statute are given their plain, ordinary, and usual meaning.
Ind. Code § 1-1-4-1(1) (2000);
State v. D.M.Z., 674 N.E.2d 585, 588
(Ind. Ct. App. 1996), trans. denied. In determining the plain and
ordinary meaning of a statutory term, courts may use English language dictionaries as
well as consider the relationship with other words and phrases. D.M.Z., 674
N.E.2d at 588. Statutes are examined and interpreted as a whole and
the language itself is scrutinized, including the grammatical structure of the clause or
sentence at issue. Clifft v. Ind. Dept of State Revenue, 660 N.E.2d
310, 316 (Ind. 1995). Within this analysis, we give words their common
and ordinary meaning, without overemphasizing a strict literal or selective reading of individual
words. Id. (citations omitted).
Indiana Code section 9-26-1-1 provides as follows:
The driver of a vehicle involved in an accident that results in the
injury or death of a person shall do the following:
(1) Immediately stop the vehicle at the scene of the accident or as
close to the accident as possible in a manner that does not obstruct
traffic more than is necessary.
(2) Immediately return to and remain at the scene of the accident until
the driver does the following:
(A) Gives the drivers name and address and the registration number of the
vehicle the driver was driving.
(B) Upon request, exhibits the drivers license of the driver to the following:
(i) The person struck.
(ii) The driver or occupant of or person attending each vehicle involved in
(C) Determines the need for and renders reasonable assistance to each person injured
in the accident, including the removal or the making of arrangements for the
removal of each injured person to a physician or hospital for medical treatment.
(3) Immediately give notice of the accident by the quickest means of
communication to one (1) of the following:
(A) The local police department if the accident occurs within a municipality.
(B) The office of the county sheriff or the nearest state police post
if the accident occurs outside a municipality.
(4) Within ten (10) days after the accident, forward a written report of
accident to the state police department.
Ind. Code § 9-26-1-1 (2004).
Armstrong argues that he was not involved in an accident because his vehicle
did not strike Mobley. The phrase involved in an accident and the
word accident are not specifically defined in the statute. Undefined words in
a statute are given their plain, ordinary, and usual meaning. Ind. Code
§ 1-1-4-1(1) (2000). Accident is broadly defined as an unforeseen and unplanned
event or circumstance and an unfortunate event resulting especially from carelessness or ignorance.
See Merriam Webster Online Dictionary available at
http://www.m-w.com (last visited October 28,
2004). Accident is also defined as an unexpected and undesirable event, especially
one resulting in damage or harm and as [a]n unforeseen incident. See
The American Heritage Dictionary of the English Language (4th Ed. 2000) available at
http://www.bartelby.com (last visited October 28, 2004). Mobleys sudden exit from Armstrongs moving
vehicle was clearly an unexpected and undesirable event resulting in harm, and falls
within the plain and ordinary meaning of the term accident.
In addition, we note that in another chapter of Title 9, the legislature
defined fatal accident in the context of implied consent laws as an accident,
a collision, or other occurrence that involves at least one [ ] vehicle
and results in death or bodily injury that gives a law enforcement officer
reason to believe that the death of at least one person is imminent.
Ind. Code § 9-30-7-1(b) (2004). This definition clearly contemplates that an
incident other than a collision could be a fatal accident for purposes of
In interpreting the predecessor of Indiana Code section 9-26-1-1, our supreme court concluded
that the purpose of the statute is to provide prompt aid for persons
who are injured or whose property is damaged and to sufficiently establish the
identity of the parties so that they and police authorities may know with
whom to deal in matters growing out of the accident.
State, 219 Ind. 352, 357, 38 N.E.2d 235, 237 (1941). Limiting accidents
to only those incidents where a person or vehicle is struck undercuts these
purposes, as the facts of this case clearly demonstrate.
We also observe that a drivers knowledge of the fact that an accident
with injury has occurred is a necessary element of the proof in a
prosecution for failure to stop.
State v. Gradison, 758 N.E.2d 1008, 1011
(Ind. Ct. App. 2001) (citing Micinski v. State, 487 N.E.2d 150, 152-53 (Ind.
1986) (construing substantially similar predecessor statute)). However, the driver need not have
actual knowledge that an accident has resulted in injury to be convicted under
the statute. Id. Where conditions were such that the driver should
have known that an accident occurred or should have reasonably anticipated that the
accident resulted in injury to a person, the requisite knowledge is present.
Id. (quoting Micinski, 487 N.E.2d at 153). Here, Armstrong admitted to police
officers at the scene that he believed Mobley was injured because he did
not move once he hit the ground.
Other courts in other jurisdictions have come to the same conclusion when interpreting
substantially similar statutes. These courts have held that, for purposes of failure
to stop or hit and run statutes, an accident occurred in circumstances other
than a collision between the drivers vehicle and another vehicle or person.
See Wylie v. State, 797 P.2d 651, 658 (Alaska Ct. App. 1990) (driver
whose wife intentionally jumped from his moving vehicle was involved in accident); State
v. Rodgers, 909 P.2d 445, 448 (Ariz. Ct. App. 1995) (driver whose passenger
deliberately jumped from his moving car was involved in an accident); State v.
Carpenter, 334 N.W.2d 137, 138-40 (Iowa 1983) (driver whose intoxicated girlfriend jumped from
his moving pickup truck was involved in an accident); Comstock v. State, 573
A.2d 117, 122 (Md. Ct. Spec. App. 1990) (driver was involved in an
accident where his sudden lane change caused another driver to swerve and collide
with oncoming traffic); State v. Slocum, 492 N.Y.S.2d 159, 160 (App. Div.
1985) (driver whose passenger jumped from the moving vehicle and died as a
result was involved in an accident); State v. Cameron, 596 N.W.2d 49, 54
(S.D. 1999) (single vehicle rollover resulting in injury to passengers was an accident);
Sheldon v. State, 100 S.W.3d 497, 503 (Tex. Crim. App. 2003) (driver whose
passenger intentionally jumped from moving vehicle was involved in an accident); Smith v.
Commonwealth, 379 S.E.2d 374, 377 (Va. Ct. App. 1989) (driver was involved in
an accident when three passengers riding on a trucks bumper fell from the
truck as it was moving); State v. Silva, 24 P.3d 477, 482 (Wash.
Ct. App. 2001) (driver was involved in an accident within meaning of statute
when a police officer was injured while jumping free of his moving vehicle
after the officer reached in to turn off the ignition).
Yet Armstrong directs us to
Honeycutt v. State, where a panel of this
court, including this writer, determined that the scope of Indiana Code section 9-26-1-1
should be limited to incidents involving a vehicle striking something that causes injury
to someone, or a vehicle striking a person and causing injury. 760
In Honeycutt, three brothers were driving home together after
visiting several bars. Id. at 649. The three began to argue,
and at one point, one of the brothers fell or was pushed out
of the moving vehicle and suffered a broken leg. Id. The
driver stopped the vehicle and the injured brother asked the driver for help
getting out of the street. The driver then pulled the injured brother
out of the street and placed him in a nearby driveway. Id.
The injured brother did not request further assistance. Id. The
driver tried to convince the injured brother to get back in the car
to go home, but the injured brother refused, saying that he needed an
ambulance. Id. The driver and the third brother then left the
injured brother there, and drove the remaining three blocks to their home.
Id. Upon these facts, Honeycutt held that there was insufficient evidence to
support the drivers conviction of failure to stop after an accident resulting in
In so holding,
Honeycutt placed significant emphasis on the fact that the statute
includes the phrase person struck. Ind. Code § 9-26-1-1(2)(B)(i). However, we
note that the phrase person struck appears only in subsection (2)(B), which requires
a driver involved in an accident to provide certain identification information when requested.
As discussed above, nothing inherent in the term accident suggests that it
encompasses only incidents where someone or something is struck. Upon closer examination,
we believe the term accident is the bellwether for all of the duties
imposed by Indiana Code section 9-26-1-1, and includes single vehicle incidents involving passengers
who fall, jump, or are pushed from moving vehicles and suffer injuries as
a result. We therefore hold that all of the duties imposed by
the statute apply to a driver of a vehicle involved in an accident.
With our interpretation, we respectfully decline to follow Honeycutt.
In declining to follow
Honeycutt, we acknowledge that our interpretation is so markedly
different as to cause concerns about retroactive application to Armstrong. Constitutional
provisions against ex post facto laws apply only to enactments by legislative bodies.
Bryant v. State, 446 N.E.2d 364, 365 (Ind. Ct. App. 1983) (citing
Marks v. United States, 430 U.S. 188, 192 (1977), Sumpter v. State, 264
Ind. 117, 125, 340 N.E.2d 764, 770 (1976)). However, this court has
recognized that the principle underlying the prohibition of ex post facto laws may
limit the retroactive application of judicial decisions interpreting statutes. Id. The
fundamental concept underlying the prohibition of retroactivity, whether by way of the due
process clause or the prohibition against ex post facto laws, is that of
fair notice to the defendant at the time he acts that his behavior
is deemed criminal. Id. at 365-66. If a judicial construction of
a criminal statute is unexpected and indefensible by reference to the law which
had been expressed prior to the conduct in issue, [the construction] must not
be given retroactive effect. Bouie v. City of Columbia, 378 U.S. 347,
354 (1964) (internal quotation marks omitted).
We note that transfer was not sought in
Honeycutt. Thus, the law
expressed prior to the conduct at issue here included no word from our
supreme court indicating that, for purposes of the failure-to-stop statute, an accident requires
that there be a person struck. However, we believe that our interpretation,
while correct, is unexpected and indefensible by reference to the law which had
been expressed prior to the conduct in issue. Id. We therefore
decline to apply our interpretation to Armstrong.
For all these reasons, when Mobley jumped from Armstrongs moving vehicle and was
injured as a result, Armstrong was involved in an accident for purposes of
Indiana Code section 9-26-1-1, and the duties under that statute were triggered.
Armstrong failed to immediately stop and remain at the scene as required by
Indiana Code section 9-26-1-1(1) & (2). While the trial court properly denied
Armstrongs motion to dismiss under our interpretation of Indiana Code section 9-26-1-1, this
interpretation should not be applied to Armstrong retroactively, and we reverse the trial
court and grant Armstrongs motion to dismiss under Honeycutt.
BARNES, J., and CRONE, J., concur.
We heard oral argument in this case at the Indiana University School
of Law-Indianapolis on September 20, 2004. We extend our appreciation to the
students, faculty, and staff for their interest and hospitality and to counsel for
their written and oral presentations.
Footnote: Ind. Code § 9-26-1-1 (2004); Ind. Code § 9-26-1-8(a)(2) (2004).