Lesiak v. State, No. 45A03-1204-CR-183

CitationNo. 45A03-1204-CR-183
Case DateDecember 14, 2012
CourtCourt of Appeals of Indiana

BENITO D. LESIAK, Appellant-Defendant,
v.
STATE OF INDIANA, Appellee-Plaintiff.

No. 45A03-1204-CR-183

COURT OF APPEALS OF INDIANA

December 14, 2012


Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:

MARK A. BATES
Lake County Appellate Public Defender
Crown Point, Indiana

ATTORNEYS FOR APPELLEE:

GREGORY F. ZOELLER
Attorney General of Indiana

BRIAN REITZ
Deputy Attorney General
Indianapolis, Indiana

APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Salvador Vasquez, Judge
Cause No. 45G01-1108-MR-6

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

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STATEMENT OF THE CASE

Benito Lesiak appeals his conviction for reckless homicide, a Class C felony, following a jury trial. Lesiak presents two issues for our review:

1. Whether the trial court abused its discretion when it refused to tender a proffered jury instruction.
2. Whether the State presented sufficient evidence to support his conviction.

We affirm.

FACTS AND PROCEDURAL HISTORY

During the early morning hours of August 1, 2011, Lesiak and his live-in boyfriend Scott Philips were arguing when Lesiak stabbed Philips in his abdomen. Lesiak then called 911, reported the stabbing, and requested assistance. Hammond Police Officer Stuart Hinson was the first on the scene, arriving five minutes after the 911 call. Lesiak invited Officer Hinson inside the house and directed him to where Philips, gasping for breath, was lying in a pool of blood. In response to questions by Officer Hinson, Lesiak stated that he had stabbed Philips. Officer Hinson then called for an ambulance and placed Lesiak in handcuffs.

Philips was transported to a hospital, but he died within a few hours. An autopsy later showed that Philips died as the result of a stab wound that was 5.5 inches deep. A forensic pathologist determined that the wound was the result of a significant amount of force.

After his arrest, Lesiak told Hammond Police Detective-Sergeant Daniel Small that he had been fighting with Philips the morning of the stabbing and that if he "had had

Page 3

a gun, [he] would have unloaded the entire clip." Transcript at 574. The State charged Lesiak with murder. At trial, Lesiak claimed that he had stabbed Philips in self-defense. The State presented evidence supporting the murder charge, including the testimony of Philips' brother that during the course of several phone calls in early July 2011, Lesiak had threatened to kill Philips. At the conclusion of the five-day trial, the jury found Lesiak guilty of the lesser-included offense of reckless homicide, a Class C felony. The trial court entered judgment accordingly and sentenced Lesiak to four years. This appeal ensued.

DISCUSSION AND DECISION

Issue One: Jury Instruction

Lesiak contends that the trial court abused its discretion when it did not give the following proffered jury instruction:

The defendant is not required to prove that the killing was accidental. Rather, the State has the burden of proving beyond a reasonable doubt that the killing was intentional or knowing and not accidental. If after considering all the evidence you have a reasonable doubt that the killing was intentional or knowing, then you must find the accused not guilty.

Appellant's App. at 70. As we have discussed:

"The purpose of a jury instruction 'is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict.'" Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State, 581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the sound judgment of the trial court and will not be disturbed absent an abuse of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004), trans. denied. Jury instructions are not to be considered in isolation, but as a whole and in reference to each other. Id. The instructions must be a complete, accurate statement of the law which will not confuse or mislead the jury. Id. at 930-31. Still, errors in the giving or refusing of instructions are harmless where a conviction is clearly sustained by the evidence and the

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jury could not properly have found otherwise. Id. at 933 (citing Dill, 741 N.E.2d at 1233).

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). Further:

In reviewing a challenge to a jury
...

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