Ellis v. State

• Decision Date: 18 October 2000
• Docket Number: No. 01S00-9910-CR-632.,01S00-9910-CR-632.
• Citation: 736 N.E.2d 731
• Parties: Adam C. ELLIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Supreme Court

736 N.E.2d 731

Adam C. ELLIS, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 01S00-9910-CR-632.

Supreme Court of Indiana.

October 18, 2000.

Donald C. Swanson, Jr., Fort Wayne, Indiana, Attorney for Appellant.

Karen M. Freeman-Wilson, Attorney General of Indiana, Arthur Thaddeus Perry, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee.

SHEPARD, Chief Justice.

Appellant Adam C. Ellis appeals his conviction and sentence for murder, two counts of attempted murder, and burglary. He raises two issues in this direct appeal:

I. Whether the trial court properly refused Ellis' tendered instructions on reckless homicide and criminal recklessness, and

II. Whether the trial court erred when it imposed maximum sentences for the convictions and ordered them served consecutively.

Facts and Procedural History

On the evening of August 5, 1998, Ellis was at his parents' home with a friend, Chris Richardson. Ellis and Richardson played foosball and ate pizza. In anticipation of Ellis' wife coming over, Ellis told Richardson (who had been smoking marijuana) to leave for a while so that Ellis' wife would not complain about his company.

At 12:30 a.m., now August 6th, Angie Ellis arrived to pick up their son Alec. Ellis and Angie were married at the time, but separated. Angie was living at the home of her mother and stepfather. Ellis testified that when Angie arrived to pick up Alec she invited Ellis over to her parents' home to talk. Angie did not want to talk in front of Alec, who was still awake.

Ellis arrived at the home of Angie's parents and saw Angie on the couch kissing Matt Bebout. Ellis left and later returned carrying a .22 caliber handgun.¹

Ellis entered Angie's parents' home, dressed in all black, and approached Bebout and Angie, who were still seated on the couch. He shot Bebout in the right cheek, and the bullet lodged in Bebout's neck. Ellis next shot Angie six times, killing her. Ellis then kicked in the bedroom door of Angie's stepfather, Curt Krauss, and shot him in the cheek and hand.

The jury found Ellis guilty of murder, two counts of attempted murder, and burglary. The trial court imposed consecutive sentences of sixty-five years for murder and fifty years for each attempted murder. It also ordered a concurrent twenty-year sentence for burglary. The sentence thus totaled 165 years.

I. Instructions on Criminal Recklessness and Reckless Homicide

Ellis first asserts that the trial court erred when it refused his tendered instructions on criminal recklessness and reckless homicide.²

Ellis' argument fails because the trial court was not required to instruct the jury on lesser included offenses based upon the analysis set forth in Wright v. State, 658 N.E.2d 563 (Ind.1995).

In Wright, we indicated that a requested instruction for a lesser included offense of the crime charged should be given if the lesser included offense is either "inherently or factually" included in the crime charged, and if, based upon the evidence presented in the case, there existed a "serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense ... [such that] a jury could conclude that the lesser offense was committed but not the greater...." Id. at 567.

Ellis asked the trial court to instruct the jury on reckless homicide as a lesser included offense of murder and criminal recklessness as a lesser included offense of attempted murder.

Reckless Homicide. Reckless homicide is an inherently included offense of murder. Wright, 658 N.E.2d at 567. The two charges are distinguished only by the lesser culpability required to prove reckless homicide.³Id. The remaining question is whether this case presented a serious evidentiary dispute with respect to an element of murder such that a jury could have concluded that the lesser offense was committed but not the greater. Id.

Ellis contends that there was a serious evidentiary dispute regarding his intent based upon his assertion of an involuntary intoxication defense.⁴ He reasons that if the jury had determined that he did not have the requisite intent to commit murder, then the jury could have instead concluded that he committed reckless homicide.

Ellis' logic confuses the function of an involuntary intoxication defense.

Involuntary intoxication is a defense to the crime charged if, as a result of the intoxication, the defendant was unable to appreciate the wrongfulness of the conduct at the time of the offense.⁵ An involuntary intoxication defense disputes the existence of intent.⁶ If successful, this defense would negate culpability for any offenses Ellis committed.⁷

This defense does not simultaneously establish the existence of reckless conduct. Rather, a claim that a person acted "recklessly" requires showing that "he engage[d] in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involve[d] a substantial deviation from acceptable standards of conduct." Ind.Code Ann. § 35-41-2-2 (West 1998). Therefore, to warrant a jury finding of reckless homicide, Ellis must demonstrate that he acted recklessly.

Consequently, a mere assertion of an involuntary intoxication defense does not create a serious evidentiary dispute such that a jury could conclude Ellis did not commit murder, but instead committed the lesser included offense of reckless homicide.⁸ The trial court did not err by refusing to instruct the jury on reckless homicide because no serious evidentiary dispute existed.

Criminal Recklessness. We have consistently held that criminal recklessness is not an inherently included offense of attempted murder. Wilson v. State, 697 N.E.2d 466, 477 (Ind.1998). As for whether criminal recklessness is a factually included offense of attempted murder, Wright, 658 N.E.2d at 567, the answer may be discerned from the charging information.

The attempted murder counts, Count II and Count III, of the charging information stated: Ellis did attempt to commit the crime of Murder by knowingly or intentionally firing a deadly weapon at and against the person of [the victim], which conduct constituted a substantial step toward the commission of the crime of Murder, contrary to the form of the statutes in such cases made and provided by I.C. XX-XX-X-X and I.C. XX-XX-X-X(1) and against the peace and dignity of the State of Indiana.

(R. at 46-47.) Because this charge did not include any element of reckless behavior, reckless homicide was not factually included in the crime charged.⁹ The trial court did not err in refusing to instruct the jury on criminal recklessness because it was neither inherently nor factually included in the crime charged.

II. Was the Sentence Erroneous?

A. No Violation of Article I, Section 16. Ellis first argues that his 165-year sentence violates Article I, Section 16 of the Indiana Constitution, which states, "Cruel and unusual punishments shall not be inflicted. All penalties shall be proportioned to the nature of the offense."¹⁰

In a recent examination of the purpose and scope of Section 16, we stated, "The constitutional prohibition against cruel and unusual punishments proscribes atrocious or obsolete punishments and is aimed at the kind and form of the punishment, rather than the duration or amount." Dunlop, 724 N.E.2d 592, 597 (Ind.2000) (citing Ratliff v. Cohn, 693 N.E.2d 530, 542 (Ind.1998)). In Douglas v. State, we indicated that cruel and unusual punishment is that which "constitutes only purposeless and needless imposition of pain and suffering...." 481 N.E.2d 107, 112 (Ind.1985) (emphasis added). The 165-year sentence imposed upon Ellis does not constitute cruel and unusual punishment.

As for the proportionality clause in Section 16, our Dunlop opinion observed, "We will find a sentence not proportional `only when a criminal penalty is not graduated and proportioned to the nature of an offense.'" 724 N.E.2d at 597 (quoting Conner v. State, 626 N.E.2d 803, 806 (Ind. 1993) (citation omitted)).¹¹

The record clearly indicates that the trial judge considered the nature of the offense when he fashioned the sentence.¹² (R. at 1165.) The 165-year sentence is not disproportional to the nature of the offenses committed.

B. Mitigating Factor Properly Omitted. Ellis next argues that the trial court erred when it failed to find his "relatively young" age a mitigating circumstance.¹³ (Appellant's Br. at 19.) Ellis was twenty-one years old when he committed the offenses.

The finding of mitigating factors is not mandatory; it rests within the discretion of the trial court. Wingett v. State, 640 N.E.2d 372, 373 (Ind.1994). A court is not obligated "to credit or weigh a possible mitigating circumstance as defendant suggests it should be credited or weighed." Archer v. State, 689 N.E.2d 678, 684 (Ind. 1997). "Only when the trial court fails to find a significant mitigator that is clearly supported by the record is there a reasonable belief that it was improperly overlooked." Legue v. State, 688 N.E.2d 408, 411 (Ind.1997).

Focusing on chronological age is a common shorthand for measuring culpability, but for people in their teens and early twenties it is frequently not the end of the inquiry. There are both relatively old offenders who seem clueless and relatively young ones who appear hardened and purposeful. Ellis has not persuaded us that the trial court abused its discretion in declining to give mitigating weight to the fact that he was twenty-one at the time of the crime. See, e.g., Johnson v. State, 725 N.E.2d 864, 868 (Ind.2000)(age of twenty does not compel finding of mitigation). Compare Trowbridge v. State, 717 N.E.2d 138, 149-50 (Ind.1999)(trial court abused its discretion in rejecting fourteen-year-old defendant's age as a mitigating factor).

C. Consecutive Sentence Exceeded Statutory Limitation. Ellis contends that the court erred in ordering consecutive maximum sentences for murder and two...