APPEAL FROM THE LAKE COUNTY SUPERIOR COURT, The Honorable T. Edward Page, Commissioner, Presiding Judge, Cause No. 2CR-201-1285-803.
Staton, J., Neal, J., and Garrard, P.j., Concur.
Benny Ray Sipp appeals his conviction for reckless homicide,[Footnote 1] a class C felony. Following a trial by jury, the trial Judge entered judgment on the jury's verdict of guilty. Sipp raises two issues on this appeal:
1. Whether the verdict of the jury was supported by sufficient evidence;
2. Whether the trial court erred in failing to give Sipp's tendered jury instructions.
We need not discuss the sufficiency of the evidence issue because we reverse on the instruction issue.
The undisputed evidence shows that Sipp, traveling in excess of fifty miles per hour, side-swiped two cars stopped at a traffic light before slamming into the decedent's car, also stopped at the traffic light. Sipp, who suffers epileptic seizures, testified before the Grand Jury that he did not remember anything about the accident and believes he was suffering from a seizure, causing him to lose consciousness, at the time of the accident.
The instructions tendered by Sipp and refused by the court numbered 1, 2, 3, 4, and 5 read as follows:
DEFENDANT'S INSTRUCTION NO. 1
Proof that the accident which resulted in the death of Bevery [sic] K. White arose out of the inadvertence, lack of attention, forgetfulness or thoughtlessness of the defendant, Benny R. Sipp, as the driver of the other automobile involved in the accident, or from an error of judgment on the part of the said Benny R. Sipp, will not support a charge of reckless homicide, and in that event you must find the defendant not guilty of the charges of reckless homicide.
DEFENDANT'S INSTRUCTION NO. 2
Members of the jury, I instruct you, that if Benny R. Sipp were merely negligent in operating his automobile, then he is not criminally liable, ...