A 21-page appellant’s reply brief is filed with the Indiana Court of Appeals on behalf of Alyssa Shepherd.

The driver convicted of hitting and killing three children and injuring a fourth as they attempted to board their school bus on Indiana 25 in October 2018 is appealing her October 2019 conviction.

Shepherd’s attorney, Stacy Uliana, filed the brief in direct response to arguments made on behalf of the state by the Indiana Attorney General’s Office.

Uliana also has asked to argue the case in front of the court, not just on paper. She is not the same attorney who represented Shepherd at trial.

Shepherd was convicted by a Fulton County jury of three Level 5 felony counts of reckless homicide, one Level 6 felony count of criminal recklessness and one Class A misdemeanor of reckless driving causing serious bodily injury. She is currently serving a 10-year sentence, seven years executed, four years to the Department of Corrections, three years community corrections home detention and three years probation. She’s housed at Rockville Correctional Center.

The bus was stopped Oct. 30, 2018, in the northbound lane of Indiana 25 with its stop arm extended and lights activated when Shepherd, who was traveling southbound, failed to stop for the bus and struck the children as they were crossing the highway.

Xzavier Ingle, 6, Mason Ingle, 6, and Alivia Stahl, 9, died at the scene. A fourth student, Maverik Lowe, suffered severe injuries.

Shepherd appealed her conviction in January, arguing that the state failed to present sufficient evidence that she acted recklessly as opposed to negligently.

That same argument is reiterated in the reply brief filed this week on Shepherd’s behalf.

“… the State’s evidence proves only that Shepherd should have realized the vehicle was a bus, not that she in fact did realize it was a bus. Failing to recognize a risk she should have foreseen is negligence, not reckless conduct,” a summary of argument states. “The State also did not show that Shepherd’s failure to slow for a vehicle with flashing lights constitutes a gross deviation from the traffic code … As tragic as this accident was, there is not substantial evidence of a probative value from which to infer that its cause was recklessness rather than negligence.”

Shepherd argues that the state failed to present sufficient evidence that she made a conscious choice to pass the bus.

“… the State claims that the following evidence was sufficient from which to infer Shepherd made a conscious decision to drive full-speed past a stopped school bus with the arm extended: 1) Shepherd knew it was morning time on a school day; 2) there was a watch for school bus sign 860 feet before the bus; 3); the nature and characteristics of a stopped school bus, i.e., lights and the color yellow; 4) the Indiana State Police’s second reconstruction video showing the school bus was visible for fifteen seconds; and 5) Shepherd admitted seeing a very large vehicle with flashing red and white lights.

Uliana argues this evidence only supports a finding that Shepherd should have known that the vehicle was a school bus, but is too speculative to infer that she did know it was a school bus and lied about it.

“School buses are not the only large vehicles with flashing lights on the road on an October morning in rural Fulton County. Because it is harvest time, there are also large farm implements,” the reply brief states. “Although there was a watch for school bus sign, there is no evidence Shepherd saw the sign. It could easily be missed by a driver concentrating on the bright lights ahead, and it is unreasonable to infer that Shepherd memorized all the signs on a road just because she had driven that road previously.”

Additionally, Uliana asks the court to reject the state’s claim that Shepherd consciously chose to pass a school bus from the knowledge and perception of other drivers who were in different positions and had different experiences. In her brief, she claims the state erroneously characterizes the driver behind Shepherd at the time of the tragedy as inexperienced.

“She was vastly more experienced than Shepherd at driving that stretch of State Road 25 at 7:00 a.m.,” the brief states about that driver. “Because the driver behind Shepherd had seen the bus stopped at the trailer park a lot, she expected to see it there that morning.”

Uliana argues that Shepherd asserted an “excusable error of judgment” when she misjudged the bus for a farm implement or oversized load that she believed was safe to pass.

The brief also highlights dangerous conditions of the bus stop when the tragedy occurred, citing how children had to cross a highway to board the bus and how it was a very dark morning and there were no street lamps near the bus stop or in the mobile home park. “Since these fatalities, the law has been changed, the bus stop moved, brush trimmed, and lights installed to prevent another tragedy,” the reply brief states. “Contrary to the State’s argument otherwise, there does not have to be a fatality before a situation can be deemed dangerous.”

In the second main argument raised in the appeal, Uliana disputes that the trial court properly rejected proposed instruction elaborating on the difference between negligence and recklessness.

“In order to uphold the trial court’s refusal to instruct the jury that a driver’s inadvertence, lack of attention or error of judgment cannot support a charge of reckless homicide, this Court must overrule Indiana Supreme Court precedent which the Court does not have the authority to do,” a summary of argument states. “For approximately seventy years, Indiana law has considered an error in judgment negligence and not reckless conduct. This law is consistent with Indiana’s policy to not criminalize driver negligence, even when tragedy results. There is nothing misleading about instructing a jury regarding the State’s minimum burden of proof where the State is prosecuting an accident as a crime.”

Uliana argues that a straight-forward application of Cichos v. State and Springer v. State leads to only one conclusion: the trial court abused its discretion by refusing Shepherd’s proffered instruction.

“The State’s brief illustrates that there is a long line of precedent that Shepherd was entitled to the proposed instruction including that an error of judgment is not recklessness,” the reply brief states. “The State has been unable to cite one case where a trial court’s refusal to so instruct was upheld where the basis of criminal liability was a car accident.”

The attorney general’s office has agreed the conviction for Count 4, regarding license suspension, should be vacated, as both Counts 4 and 5 of Shepherd’s conviction are based on the same act and are attributable to the bodily injuries of Lowe.

Uliana responded: “Although the State concedes that the trial court does not have the authority to run Shepherd’s convictions consecutively, the State argues that the trial court’s Order is silent on how the suspensions are to be served. However, in the sentencing order, the trial court set forth each conviction, underneath which he listed the sentence, including fines, restitution, probation and license suspension and ordered the sentences consecutive to one another.”

“From the Order, it is clear the trial court’s intent was to order consecutive suspensions, which is illegal. Thus, the case should be remanded with instructions that the trial court order the suspensions run concurrently.”

“Shepherd requests the court vacate her convictions, or if the court finds sufficient evidence and no reversible error in the guilt phase, remand with instructions to vacate Count 4 and order Shepherd’s license suspensions to run concurrently,” the document concludes.

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