PR 02905.017 Indiana

A. PR 03-008 WIB - Indiana - Whether Conviction of Reckless Homicide Precludes Entitlement for Mildred M. K~, SSN ~; Your Reference: S2D5G6

DATE: September 27, 2002

1. SYLLABUS

Conviction of the crime of Reckless Homicide is not considered an intentional act under Indiana State law. Therefore, a person convicted of Reckless Homicide in causing the death of the number holder in the State of Indiana is not precluded from entitlement to widow(er)'s insurance benefits on that wage earner's record per instructions in POMS RS 00207.001B.1.

2. OPINION

You asked whether Mildred K~'s conviction of Reckless Homicide under Indiana State Law precludes entitlement to Widow's Insurance Benefits (WIB). For the reasons stated below, we conclude that because Mildred K~ was convicted of Reckless Homicide, her intent was “reckless” and not “knowing and intentional,” and therefore, her entitlement to WIB is not precluded.

FACTS

On August 23, 2001, when she was 60 years old, Mildred K~ applied for WIB on the account of Gerald L. K~, the deceased wage earner. Ms. K~ reported that she married Mr. K~ on June 25, 1993, and that the marriage ended with Mr. K~'s death on October 27, 1998. The death certificate indicated that the cause of death was a single contact penetrating gunshot wound to the head, and that he had been shot by another.

Ms. K~ was charged with the death of her husband, and after a jury trial in the Switzerland Superior Court in the State of Indiana in May 1999, she was found guilty of reckless homicide, aggravated battery, battery by means of deadly weapon, and battery resulting in serious injury. Ms. K~ appealed her conviction. On July 25, 2000, the Court of Appeals of Indiana affirmed Ms. K~'s conviction for reckless homicide, reversed her convictions for aggravated battery, battery by means of a deadly weapon, and battery resulting in serious bodily injury, and remanded her case to the trial court for sentencing.

DISCUSSION

The Program Operations Manual System (POMS) specifies that even though a widow could meet all the requirements for entitlement of widow's benefits, entitlement would be precluded if the widow was convicted of the felonious and intentional homicide of the number holder. POMS RS 00207.001B.1. The POMS lists various offenses that are excluded from intentional homicide, but reckless homicide is not included in that list of offenses. POMS GN 00304.065.

Indiana law expressly provides that a person who recklessly kills another human being commits reckless homicide. Ind. Code § 35-42-1-5. Reckless conduct occurs when a person “engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” Ind. Code § 35-41-2-2(c); Brown v. State of Indiana, 703 N.E.2d 1010, 1021 (Ind. 1998). The element that distinguishes reckless homicide from murder is a “reckless” state of mind as compared to a “knowing or intentional” state of mind. Brown, 703 N.E.2d at 1021; See Ind. Code § 35-42-1-1. A person acts knowingly “if, when he engages in the conduct, he is aware of a high probability that he is doing so.” Ind. Code § 35-41-2-2(b).

In this case, the Court of Appeals of Indiana affirmed Ms. K~'s conviction for reckless homicide. Under Indiana law, Ms. K~ acted recklessly when she committed the felonious act in question, and she did not knowingly and intentionally kill Mr. K~. Therefore, Ms. K~'s conviction for reckless homicide was not an intentional act.

CONCLUSION

We conclude that Ms. K~'s conviction for reckless homicide was a felonious act that was not intentional. Therefore, her WIB entitlement is not precluded under POMS RS 00207.001B.1.

Thomas W. C~,
Regional Chief Counsel

By:_______________________
Henry S. K~
Assistant Regional Counsel


To Link to this section - Use this URL:
http://policy.ssa.gov/poms.nsf/lnx/1502905017
PR 02905.017 - Indiana - 04/02/2008
Batch run: 01/27/2009
Rev:04/02/2008