Johnson v. State

• Decision Date: 29 September 1981
• Docket Number: No. 3-680A165,3-680A165
• Parties: Larry G. JOHNSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
• Court: Indiana Appellate Court

Page 91

426 N.E.2d 91

Larry G. JOHNSON, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).

No. 3-680A165.

Court of Appeals of Indiana, Third District.

Sept. 29, 1981.

Rehearing Denied Nov. 25, 1981.

See 428 N.E.2d 248.

Harriette Bailey Conn, Public Defender, Robert H. Hendren, Deputy Public Defender, Indianapolis, for appellant.

Linley E. Pearson, Atty. Gen., Stephen J. Cuthbert, Deputy Atty. Gen., Indianapolis, for appellee.

STATON, Judge.

A jury found Larry G. Johnson guilty of battery, ¹ a Class C felony. The trial court entered a judgment of conviction accordingly and sentenced Johnson to the Indiana Department of Correction for a period of five years.

On appeal, Johnson raises the following issue for review:

Did the trial court err in refusing to give the lesser included offense instructions tendered by Johnson?

Reversed. ²

On August 6, 1978, Johnson and Brian Jones were playing basketball at a playground in Fort Wayne, Indiana. While trying to slap the ball away from Johnson, Jones fouled Johnson. Jones immediately acknowledged that he had fouled Johnson, but Johnson accused Jones of committing the foul intentionally. The game resumed without further altercation. In the next game, Johnson and Jones collided on the court. As Jones attempted to stand, Johnson stepped over him. Jones asked Johnson if "he did that on purpose." Johnson replied, "Nigger, if you want to start some shit, we can start it." Johnson then drew a handgun from his pocket and shot Jones in the chest. For his conduct, Johnson was charged with and convicted of committing a battery against Jones.

Johnson contends the trial court committed reversible error when it refused to instruct the jury upon the offense of criminal recklessness, which he contends is a lesser included offense of battery. A battery of the Class C felony type is committed when a person "knowingly or intentionally touches another person in a rude, insolent, or angry manner," and such touching "results in serious bodily injury to any other person or ... is committed by means of a deadly weapon." IC 1976, 35-42-2-1 (Burns Code Ed., 1980 Supp.). Johnson sought a jury instruction upon the offense of criminal recklessness, which is defined in IC 1976, 35-42-2-2(b) (Burns Code Ed., 1979 Repl.), ³ as follows:

"(b) A person who recklessly, knowingly, or intentionally inflicts serious bodily injury on another person commits criminal recklessness, a class D felony."

Johnson argued that his conduct constituted criminal recklessness at the most because his use of drugs before playing basketball prevented him from formulating the requisite intent for the commission of a battery. In support of his theory of defense, Johnson tendered the following instructions:

"No. 4: If the jury is unable to find that the Defendant knowingly or intentionally committed the acts he has been charged with but does find that the Defendant committed those acts recklessly, the Defendant may be found guilty of recklessly inflicting serious bodily injury on another person, a lesser included offense.

"No. 5: If the evidence shows beyond a reasonable doubt that the defendant recklessly, knowingly or intentionally inflicted serious bodily injury on another person, the jury may find the defendant guilty of Criminal Recklessness, a Class D felony."

The trial court refused to give both instructions to the jury.

The test for determining the propriety of giving an instruction upon a lesser included offense was delineated by this Court in Roddy v. State (1979), Ind.App., 394 N.E.2d 1098. Relying upon the directives of the Indiana Supreme Court set forth in Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208, this Court developed a two-step methodology that must be employed to determine whether a defendant may properly be convicted of a lesser offense. ⁴ The first step focuses upon determining whether the lesser offense is "included" within the greater offense. This inquiry requires an examination of

"the criminal statutes which define the greater and lesser offenses, together with the allegations of fact contained in the charging instrument. Lawrence v. State, supra. From this examination, the court determines whether a conviction of the greater offense, as it is charged in the indictment or information, requires proof of all essential elements of the lesser offense, plus an additional element which distinguishes the two offenses."

Roddy, supra, 394 N.E.2d at 1104. If it is determined that the lesser offense is included within the charged offense, then the focus of inquiry shifts to the second step of the methodology, which this Court has explained as follows:

"Step two of the Lawrence inquiry is designed to insure that the final instructions which are given to the jury conform to the issues and evidence before it. Harris v. State (1977), Ind., 366 N.E.2d 186, 188. To guard against a violation of this long-standing principle, the trial court examines that evidence which tends to prove or disprove the commission of the elements which compose the greater and lesser included offenses. Based on its examination, the trial court should instruct the jury on the lesser included offense only when it finds that there is 'evidence of probative value from which the jury could properly find the defendant guilty of such lesser included offense.' Lawrence v. State, supra (375 N.E.2d) at 213, quoting Hash v. State (1972), 258 Ind. 692, 698, 284 N.E.2d 770, 774 (DeBruler, J., dissenting)."

Roddy, supra, 394 N.E.2d at 1110. However, the trial court's duty to give an instruction upon a lesser included offense is not triggered automatically by the admission of evidence that indicates the lesser offense was committed. The trial court must engage in an additional inquiry:

"A trial court should not give an instruction and form of verdict on a lesser included offense simply because the evidence indicates that the defendant committed the lesser offense in the process of the acts for which he or she was charged.

"To be sure, the evidence must establish the commission of the elements which comprise the lesser included offense in order for an instruction and form of verdict on that offense to go to the jury. However, the major focus of the evidentiary test is not on the elements of the lesser offense, but rather on the element(s) which distinguish(es) the offense charged from the lesser included offense. If the evidence which indicates that the defendant did in fact commit the distinguishing element is uncontroverted, then the instruction on the lesser included offense should not be given to the jury. If, however, as the Court stated in Lawrence, evidence of probative value raises a 'serious dispute' regarding whether the defendant in fact committed the distinguishing element(s), an instruction and form of verdict on the lesser included offense should be given to the jury. Lawrence v. State, supra (375 N.E.2d) at 213."

Roddy, supra, 394 N.E.2d at 1111.

In applying the Roddy methodology to the present case, it is evident that criminal recklessness constitutes a lesser included offense of battery in this case. Under the facts stated in the charging instrument, every essential element of the lesser offense (criminal recklessness) would have been committed during the course of the charged crime (battery), and each essential element of criminal recklessness as defined in IC 35-42-2-2(b) constitutes an essential element of battery, as charged as a Class C felony. Employing the statutory definition of battery, the charging instrument alleged that Johnson "did inflict serious bodily injury" upon Jones by knowingly touching him in a rude, insolent, and angry manner. As stated previously in this opinion, criminal recklessness is committed when a person "recklessly, knowingly, or intentionally inflicts serious bodily injury on another person." IC 35-42-2-2(b). Under the facts alleged in the charging instrument, Johnson could not have committed a battery of the Class C felony type, as charged, without inflicting serious bodily injury upon Jones. Thus, criminal recklessness is a lesser included offense of battery under the facts of the present case.

Application of the second step of the Roddy methodology requires an examination of the evidence adduced at trial and the elements that distinguish battery from criminal recklessness. In some cases, battery is distinguished from criminal recklessness by the actor's state of mind during the commission of the offense. The degree of culpability required of battery is that the touching occur "knowingly or intentionally." IC 35-42-2-1. Criminal recklessness is committed when the actor "recklessly, knowingly, or intentionally" inflicts serious bodily injury upon another person. ⁵ IC 35-42-2-2(b). The actor's state of mind is a distinguishing element only when the "recklessly" portion of IC 35-42-2-2(b) is the basis of a lesser included offense instruction on criminal recklessness. In the present case, both instructions tendered by Johnson employed the concept of a "reckless" infliction of serious bodily injury as a basis for advising the jury of the offense of criminal recklessness. Instruction No. 4 relied exclusively upon recklessly as the degree of culpability, and Instruction No. 5 used "recklessly" as one of the degrees of culpability for the offense of criminal recklessness. Thus, the distinguishing element which this Court must examine is Johnson's state of mind during the shooting. ⁶

The evidence relating to Johnson's state of mind during the commission of the offense is controverted. There is evidence in the record from which the jury could have inferred that Johnson "knowingly or intentionally" shot Jones. On the other hand, the record contains evidence indicating that Johnson's drug use immediately before the basketball games may have impaired his mental state to a degree that rendered him incapable of formulating the requisite intent for the...