Thomas Kent Upstill, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] After becoming severely intoxicated at a Fishers bar, Thomas Upstill fired six rounds from his handgun from an adjacent parking lot. At the time, two people were on the bar's outdoor patio nearby. Upstill appeals his conviction for Level 6 felony criminal recklessness, arguing the State presented insufficient evidence that his conduct created a substantial risk of bodily injury to another person. We affirm.

Facts

[2] Upstill became intoxicated while drinking at a Fishers bar. When leaving, he fell a couple of times inside the bar, dropping his holstered handgun. The bartender helped Upstill leave the building and then watched him stumble toward his RV, which was in an adjacent parking lot. About 30 minutes later, the bartender noticed that Upstill was still only halfway to the RV.

[3] The bartender soon heard multiple gunshots while she and a bar patron were outside on the bar's patio. Police responding to the bartender's 911 call found Upstill lying shirtless on his back on the parking lot ground. Upstill, who could not stand, told the officers that “one shot had went off.” Tr. Vol. II, p. 42. But six spent shell casings, along with Upstill's handgun and cellphone, were found not far from where he lay. The fired bullets were never recovered.

[4] Charged with several crimes, Upstill was convicted of criminal recklessness and public intoxication. He now appeals, claiming insufficient evidence supports his criminal recklessness conviction.

Discussion and Decision

[5] When reviewing the sufficiency of the evidence to support a criminal conviction, we neither reweigh evidence nor re-examine witness credibility. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind. 2016). We consider only the “probative evidence and reasonable inferences supporting the verdict” and affirm unless “no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt.” Id. (quoting Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).

[6] To convict Upstill of criminal recklessness, the State was required to prove beyond a reasonable doubt that he “recklessly, knowingly, or intentionally perform[ed] an act that create[d] a substantial risk of bodily injury to another person.” Ind. Code § 35-42-2-2(a). In this context, a “substantial risk” is one that has “substance or actual existence” rather than being merely speculative. Woods v. State, 768 N.E.2d 1024, 1028 (Ind. Ct. App. 2002). Upstill argues that the State presented insufficient evidence to prove his gunshots created a “substantial risk” of bodily injury to another person.

[7] Specifically, Upstill compares his case to Elliott v. State, 560 N.E.2d 1266 (Ind. Ct. App. 1990) and Boushehry v. State, 648 N.E.2d 1174 (Ind. Ct. App. 1995). In both decisions, this Court reversed criminal recklessness convictions after concluding that the State did not prove a substantial risk of bodily injury to another person through evidence that the defendant fired shots into vacant areas. Elliott, 560 N.E.2d at 1267 (shots fired over uninhabited fields); Boushehry, 648 N.E.2d at 1177 (shots fired into a vacant lot). But unlike the defendants in Elliott and Boushehry, Upstill discharged his weapon multiple times in an area where people were present and in close range.

[8] Contrary to Upstill's contention, the lack of evidence showing bystanders were directly in his line of fire is not fatal to his criminal recklessness conviction. In Woods, the defendant fired six shots at a vacant house while adults were sitting on a nearby porch and children were playing in the area. 768 N.E.2d at 1028. This Court ruled that firing a weapon in a populated area while intoxicated created a substantial risk of injury, whether from direct fire or ricochet, although the shots were not aimed directly at the bystanders. Id.; see also Tipton v. State, 981 N.E.2d 103, 111 (Ind. Ct. App. 2012) (affirming conviction for criminal recklessness based on the defendant's firing of shots into an inhabited home that was then unoccupied).

[9] The State proved that Upstill fired six rounds while so intoxicated that he had lost physical control of his body. And he did so about 50 feet from a business then occupied by at least two people—the bartender and the bar patron—who were outside on the bar's patio. This evidence is sufficient to prove beyond a reasonable doubt the substantial risk element of criminal recklessness.

[10] We affirm the trial court's judgment.

Weissmann, Judge.

Judges May and Scheele concur. May, J., and Scheele, J., concur.