Reinbold v. State

• Decision Date: 08 June 1990
• Docket Number: No. 44S00-8710-1018,44S00-8710-1018
• Citation: 555 N.E.2d 463
• Parties: William P. REINBOLD, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 463

555 N.E.2d 463

William P. REINBOLD, Appellant, v. STATE of Indiana, Appellee.

No. 44S00-8710-1018.

Supreme Court of Indiana.

June 8, 1990.

Robert S. Bechert, Randall J. Hammond, Tremper, Bechert, Leonard & Terrill, Fort Wayne, for appellant.

Linley E. Pearson, Atty. Gen., Amy Schaeffer Good, Deputy Atty. Gen., Indianapolis, for appellee.

DeBRULER, Justice.

Following a jury trial, appellant was convicted of voluntary manslaughter, a class B felony, I.C. 35-42-1-3, and was given a twenty-year sentence. Appellant now brings this direct appeal and claims that the trial court erred in giving and refusing certain instructions, in denying his motion for change of venue from the county, and in sentencing.

The facts giving rise to this appeal are essentially without dispute. In 1986, Ronnie Lothamer was a thirty-five-year-old divorced man living with his parents, who had a summer cottage on a lake. Appellant, a retired policeman with twenty years of experience on the Fort Wayne police department, and his wife, Ruth Reinbold, lived next door. The two families had a history of friction regarding property lines and easements which had included numerous loud, profanity-ridden arguments, most often between Ruth Reinbold and Ronnie Lothamer. Ruth Reinbold had also committed several acts of vandalism on the Lothamer property, of which appellant was not aware, and had written Ronnie Lothamer an antagonistic note. At his wife's urging, appellant had lodged several complaints with local officials concerning encroachments by the Lothamers on private and county easements and septic system violations and accusing Ronnie Lothamer of stealing firewood from them. As a result of one of the complaints, the Lothamers had to move a shed which they had constructed because it extended a few feet over their property line.

Ronnie Lothamer decided to remain at the lake through the winter, and on September 7, 1986, he and two others erected an oil tank to provide heat to the cottage. Appellant and Lothamer exchanged words as to whether it was being put up over the property line while Ruth shouted obscenities from her porch. After the Reinbolds went back into their house, Lothamer consulted with another neighbor over a survey map, and they agreed that the tank was within the Lothamers' boundary. When the construction was completed and Lothamer was gone, Ruth knocked the tank over. Appellant unsuccessfully sought the help of a neighbor to put it back up. He decided not to do it himself because, knowing that Lothamer had a reputation for a violent temper, he did not want to be caught alone on the Lothamers' property. When Lothamer returned later that evening and saw that his tank was down, he rushed next door. The Reinbolds were eating supper in their living room as Lothamer burst through the screen door, shouting, "God damn you Reinbolds, I'm going to kill you both." Appellant ran into their bedroom to obtain his .9 mm handgun. While appellant was in the bedroom, Ruth picked up a heavy ceramic figurine from a coffee table and ran at Lothamer, shouting for him to get out. Lothamer turned and ran back out the front door, and Ruth hurled the figurine at him. Appellant saw nothing of this, but heard a crash of glass and his wife shouting, "Shoot him, shoot him," as he came back into the living room, and he fired two shots in rapid succession. The location of empty casings indicated that appellant had fired from near the front door. Lothamer died on the sidewalk at the front of the house of two gunshot wounds. Both entry wounds were to his back; one bullet exited through his chest and the other through his side. He was unarmed.

I. Instructions

Appellant claims that the trial court erred by instructing the jury on voluntary manslaughter as a lesser included offense of murder and by refusing his proffered instructions on the issue of self-defense and on the evaluation of expert testimony. The test applied to review a trial court's decision to give or refuse a tendered instruction is 1) whether the instruction correctly states the law; 2) whether there was evidence in the record to support the giving of the instruction; and 3) whether the substance of the tendered instruction is covered by other instructions which are given. Coates v. State (1989), Ind., 534 N.E.2d 1087.

1. Lesser Included Offense

Appellant was charged with murder for the knowing killing of Ronnie Lothamer pursuant to I.C. 35-42-1-1(1). The information, omitting the formal parts, read as follows:

[O]n or about the 7th day of September, 1986, at and in the County of LaGrange and State of Indiana, William Paul Reinbold did then and there knowingly kill a human being, namely: Ronald L. Lothamer by shooting at and against the body of the said Ronald L. Lothamer, with a certain 9 millimeter handgun loaded with gunpowder and metal bullets, then and there held in the hand of the said William Paul Reinbold, and did then and there inflict mortal wounds in and upon the body of Ronald L. Lothamer causing him to die....

Appellant argues that it was error for the trial court to instruct the jury on voluntary manslaughter because the information was drafted so narrowly as to preclude conviction on any offense other than murder.

In Wedmore v. State (1988), Ind., 519 N.E.2d 546, this Court set out the test for determining the propriety of an instruction on a lesser included offense. The trial court must first examine the statutes involved and the charging information and then examine the evidence to see if an instruction on a lesser included offense is warranted. Id. at 547 (citing Sills v. State (1984), Ind., 463 N.E.2d 228; Jones v. State (1982), Ind., 438 N.E.2d 972; Lawrence v. State (1978), 268 Ind. 330, 375 N.E.2d 208). Appellant cites the decisions from this Court in Sills, Jones, and Compton v. State (1984), Ind., 465 N.E.2d 711, for the proposition that the prosecution may foreclose to a defendant the tactical opportunity to seek conviction on a lesser offense through the drafting of the charging instrument, most typically by closely tracking the statutory definition of the offense and by inserting no additional language which might indicate an intention to charge a lesser offense. See Slayton v. State (1984), Ind.App., 471 N.E.2d 1154. Appellant argues that because the instrument under which he was charged closely tracked the murder statute and there was no additional "sudden heat" language which would have alerted him that the voluntary manslaughter statute might be applicable, the State was foreclosed from seeking a conviction for voluntary manslaughter.

The State bears the same burden of proof in order to obtain a conviction for either murder or voluntary manslaughter. In both cases, the State must prove to a moral certainty beyond a reasonable doubt that the accused knowingly or intentionally killed a human being. The distinction between the two crimes is the presence or absence of the statutory mitigator provided by I.C. 35-42-1-3, which states that one who knowingly or intentionally kills while acting under sudden heat commits voluntary manslaughter, which is a class B felony rather than the murder felony. Palmer v. State (1981), Ind., 425 N.E.2d 640. The voluntary manslaughter statute provides the State the option to charge a lesser offense against one who has knowingly or intentionally killed, but whose culpability appears not to warrant prosecution for murder, and it provides an accused the opportunity to escape conviction for what would otherwise be murder upon a showing that he acted in sudden heat. A murder charge cannot be drafted so as to preclude the possibility of a conviction on voluntary manslaughter upon the introduction of evidence that the defendant acted in sudden heat and upon the acceptance of that evidence by the jury.

Application of the test set forth in Wedmore shows that the trial court properly instructed the jury on voluntary manslaughter. First, the language of the charging instrument supports the giving of an instruction on both murder and voluntary manslaughter since both involve a knowing or intentional killing. Second, the evidence adduced at trial supports instruction on the lesser included offense. Both appellant and his wife testified that as they sat having supper in their living room, Lothamer burst in, cursing them and shouting that he was going to kill them both. Appellant testified that at that moment, the word "massacre" came to his mind and that he screamed and jumped up, sending the dishes on his lap crashing to the floor, and ran for his gun. He testified further that as he came running back into the living room, he heard a crash of glass and his wife screaming, "Shoot him, shoot him," and that he then fired two shots. There was sufficient evidence that appellant was acting under sudden heat at the time of the shooting.

The fact that the State charged appellant with murder and sought final instruction on involuntary manslaughter only after the presentation of all the evidence is not determinative. In a murder trial, once evidence of sudden heat is introduced by either party, an instruction on voluntary manslaughter is appropriate. Underwood v. State (1989), Ind., 535 N.E.2d 118; Palmer, 425 N.E.2d 640.

2. Self-Defense

Appellant's tendered instruction No. 18 was a verbatim quote of three paragraphs from this Court's decision in Banks v. State (1971), 257 Ind. 530, 276 N.E.2d 155, the substance of which is that the acts of one claiming self-defense are to be evaluated from the standpoint and perception, even if mistaken, of that individual at the time and under the circumstances of the incident as shown by the evidence. Appellant argues that the trial court erred by refusing this instruction and by giving its instruction No. 22, which set out the statutory provisions on self-defense. Jury instructions, however, are not to be considered in isolation, but rather as a whole and with reference to each other. Whisman v....