By Liz Shepherd
InkFreeNews

Alyssa L. Shepherd

ROCHESTER — The State of Indiana has filed a brief with the Indiana Court of Appeals in response to Alyssa Shepherd’s appellant’s brief. Shepherd, the 25-year-old Rochester motorist who struck four children, killing three of them at a bus stop on SR 25, is appealing her sentence.

Attorney General Curtis T. Hill and Supervising Deputy Attorney General Ellen H. Meilaender filed the brief on behalf of the state.

On Oct. 30, 2018, Shepherd was driving a Toyota Tacoma when she struck four children after she disregarded a school bus that had stopped to pick up students along SR 25, just north of Rochester. Six-year-old twins Xzavier and Mason Ingle; and their sister, 9-year-old Alivia Stahl, died at the scene. Maverik Lowe, who was 11 years old at the time of the accident, was severely injured.

In a four-day jury trial in October 2019, Shepherd was found guilty of five criminal charges. In December 2019, Fulton County Superior Court Judge Gregory Heller sentenced Shepherd to four years in prison, three years in community corrections or home detention and three years on formal probation. She is currently serving her prison sentence at Rockville Correctional Facility.

The 53-page document, filed on June 25, lists rebuttals to four main arguments presented in Shepherd’s appellant’s brief.

• Defendant: The State failed to present substantial evidence of a probative value from which reckless conduct could be inferred.
• Plaintiff: The State presented sufficient evidence that Shepherd acted recklessly.

The State argues that sufficient evidence was presented to the jury, who determined that Shepherd acted recklessly when she drove past a stopped school bus without stopping or slowing down. In the brief, the state says that evidence presented in court sufficiently proved that Shepherd realized the vehicle was a school bus.

The discussed evidence includes the time and day; a “watch for school bus” highway sign on SR 25; the operating lights and stop arm on the school bus; other drivers on the road that morning recognizing the vehicle as a stopped school bus; and Shepherd’s admittance that she saw a “very large” vehicle with flashing lights on the road.

“Given this evidence, the jury reasonably could infer that (Shepherd) knew the vehicle she was approaching was a stopped school bus,” read the brief.

In a second sub-point, the state argues that driving past a stopped school bus without stopping or slowing constitutes reckless conduct.

“Driving past a stopped school bus is a voluntary improper act, and failing to slow down at all when approaching a stopped bus is refraining from doing a proper and prudent act,” read the brief.

The brief also states that cases the appellant’s brief references differ from her case in that they rely on drivers who failed to perceive hazards ahead of them on the road, whereas Shepherd perceived the bus ahead of her and had the benefit of a posted sign.

“Indeed, one eyewitness assumed (Shepherd) must have been drunk as there seemed no other possible explanation for her failure to stop,” read the brief. “The same is true of failing to slow down at all when approaching a stopped school bus at highway speeds.”

A third sub-point states that even if Shepherd did not know the vehicle was a school bus, that would not make the presented evidence insufficient to prove recklessness.

“At the very least, the evidence still proved that (Shepherd) was aware of the unidentified hazard on the roadway ahead of her,” read the brief. “…Continuing to drive almost 60 miles per hour without reducing her speed at all or even removing her foot from the accelerator as she sped in the dark toward an unknown vehicle with flashing red and white lights constitutes a gross deviation from accepted standards of conduct.”

The brief goes on to say the question is inappropriate for reweighing and that it is “not a question of law but a question of the community’s standards of conduct.”

“The State presented probative evidence from which a reasonable fact-finder could conclude that (Shepherd’s) conduct was reckless, and the jury’s verdicts to that effect should be affirmed.”

• Defendant: The trial court committed reversible error by failing to give Shepherd’s tendered instruction elaborating on the difference between negligence and recklessness.
• Plaintiff: The trial court properly rejected Shepherd’s tendered instruction.

In the brief, the state argues that the proposed instruction from Shepherd’s defense “improperly focused on a sufficiency standard and was potentially misleading. The tendered instruction only served to improperly emphasize the defense’s view of the evidence and how it should be weighed.”

The brief lists multiple cases involving drivers engaging in reckless conduct as examples.

“Suggesting to the jury that no error of judgment may support a reckless homicide instruction would clearly be misleading given the precedent,” said the brief.

The state also says the instruction was properly rejected due to it not being supported by evidence.

“All of the evidence showed that (Shepherd) perceived the potential hazard ahead on the road,” said the brief. “There was no evidence from which a jury could conclude that inattention or inadvertence had caused (Shepherd) not to see the vehicle to realize it was on the roadway.”

• Defendant: Shepherd’s convictions for criminal recklessness and recklessly passing a school bus violate double jeopardy.
• Plaintiff: Shepherd’s convictions on Counts 4 and 5 implicate double jeopardy.

The State agrees that the conviction for Count 4, a Class A misdemeanor for reckless driving, should be vacated. Both Counts 4 and 5 of Shepherd’s criminal charges are based on the same act and are for the same victim, Maverik Lowe.

In the brief, the State says that this will not change the sentence because, while Counts 4 and 5 were to run concurrently with each other, the sentence on Count 5 is to run consecutively to the sentences imposed in Counts 1 through 3.

• Defendant: The trial court erred by ordering Shepherd’s license suspensions to run consecutively.
• Plaintiff: The records do not show the license suspensions were imposed consecutively.

“Had (Shepherd) timely raised this issue in the trial court, the court could have clarified its sentencing order without need for further expense of judicial time and resources,” read the brief. “In its oral sentencing statement, the court ordered the sentences of imprisonment/probation to run consecutively on the counts of reckless homicide and criminal recklessness, but it never explicitly included within the sentences referenced the separate license suspensions.”

In conclusion, with the exception of vacating Count 4 due to double jeopardy, the State agreed with the trial court’s judgment on Shepherd’s guilt and sentencing.