White v. State
| Decision Date | 26 June 2006 |
| Docket Number | No. 71A05-0509-CR-506.,71A05-0509-CR-506. |
| Citation | 849 N.E.2d 735 |
| Parties | Fabian S. WHITE, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Susan K. Carpenter, Public Defender of Indiana, J. Michael Sauer, Deputy Public Defender, Indianapolis, IN, Attorneys for Appellant.
Steve Carter, Attorney General of Indiana, Monika Prekopa Talbot, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
Fabian White appeals from his convictions and 115-year sentence for murder, attempted murder, and escape. We find that the trial court did not err in refusing to instruct the jury on criminal recklessness as a lesser-included offense of attempted murder. Criminal recklessness is not inherently included in the crime of attempted murder, and in this case, it is not factually included because the charging information for attempted murder included no element of reckless behavior. Furthermore, the trial court did not abuse its discretion in sentencing White to consecutive enhanced sentences. Indiana Code § 35-50-2-1.3, which states that "[i]n imposing consecutive sentences in accordance with IC 35-50-1-2[,] a court is required to use the appropriate advisory sentence in imposing a consecutive sentence," adds no restrictions on the ability of trial courts to impose consecutive sentences beyond the restrictions already in place by virtue of the statute it references, Indiana Code § 35-50-1-2. Finally, White's sentence is not inappropriate. The trial court's judgment is affirmed.
The facts most favorable to the jury verdict are as follows. On the night of October 2, 2004, White was at his house in South Bend, Indiana, with Freeman Jordan ("Jordan"), Larry Patterson ("Patterson"), and Candace Marvel ("Marvel"). Mike Wallace ("Wallace") and Jay Johnson ("Johnson") also visited the house, and Wallace talked to White. Wallace and Johnson then left, only to return at approximately 7:00 a.m. the next morning. White heard them knock and went to the door. While Johnson sat on the porch, White and Wallace talked in the living room about drugs, money, and a gun. At some point, White went to a bedroom, retrieved a pistol, and returned to Wallace and Johnson. White then "tussled" with Wallace and Johnson on the porch. Tr. p. 350. Jordan heard gunshots and went out to the porch, where he saw Wallace lying on the floor.
According to Johnson, White then went back to the bedroom and yelled, "Give me my other pistol so I can finish these n____." Id. at 501. After Marvel gave White another gun, White went back to the porch, shot Wallace one or two more times, kicked him, and said, "[T]hat's for hitting me at Boy's School." Id. at 305-06, 340-43. White also shot Johnson multiple times, including as Johnson jumped out of a window to escape the house. White, Jordan, Patterson, and Marvel also left the house. White followed Johnson, who eventually entered another house and called for help. Johnson suffered four gunshot wounds, including two to his abdomen, one in his buttock, and one in his thigh. He underwent surgery and survived, but Wallace died as a result of his gunshot wounds. Police later arrested White in Michigan City, Indiana.
The State charged White with murder,1 attempted murder,2 and escape as a Class D felony,3 based on the fact that White violated a home detention order by leaving his house after the shootings. At trial, White tendered a jury instruction on criminal recklessness as a lesser-included offense of attempted murder. The trial court refused to give the instruction to the jury, explaining:
Somewhere in my office on my desk are two cases Ellis v. State is one of them. It's a Supreme Court case, and the other is also a Supreme Court Case. The second name escapes me right now. I'll give you that in about two seconds. It talks about criminal recklessness being neither factually nor inherently included in attempted murder.
Tr. Vol. 4, p. 81-82. The jury found White guilty of murder and attempted murder, and White pled guilty to the escape charge.
In sentencing White, the trial court found as an aggravating circumstance "White's history of juvenile adjudications and the number and nature of [White's] criminal convictions." Appellant's App. p. 72. The court found no mitigating circumstances and sentenced White to consecutive maximum terms of sixty-five years for murder and fifty years for attempted murder, along with a concurrent maximum term of three years for escape, for a total executed sentence of 115 years. White now appeals.
On appeal, White raises three issues: (1) whether the trial court erred by refusing to instruct the jury on criminal recklessness as a factually lesser-included offense of attempted murder; (2) whether the trial court was required to use advisory sentences in imposing consecutive sentences; and (3) whether White's sentence is inappropriate in light of the nature of his offenses and his character. We address each issue in turn.
White first argues that the trial court erred by refusing to instruct the jury on criminal recklessness as a lesser-included offense of attempted murder. As the Indiana Supreme Court has stated:
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.
Ellis v. State, 736 N.E.2d 731, 733 (Ind. 2000) (citing Wright v. State, 658 N.E.2d 563, 567 (Ind.1995)) (formatting altered). If a trial court rejects a tendered lesser-included offense instruction on the basis of its view of the law, as opposed to a finding that there is no serious evidentiary dispute, appellate review of the ruling is de novo. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.1998). Here, the trial court cited Ellis for the proposition that criminal recklessness is "neither factually nor inherently included in attempted murder." Tr. Vol. 4, p. 82. Because the court's rejection of White's lesser-included offense instruction was based on its view of the law, as opposed to a finding that there was no serious evidentiary dispute, we review its decision de novo. Brown, 703 N.E.2d at 1019.
It is well-established in Indiana that criminal recklessness is not an inherently included offense of attempted murder. Ellis, 736 N.E.2d at 734. However, whether an offense is a factually lesser-included offense of another offense requires a case-by-case determination. The trial court must compare the statute defining the alleged lesser-included offense with the charging instrument in the case. Wright, 658 N.E.2d at 567. If the charging instrument alleges that the means used to commit the crime charged include all of the elements of the alleged lesser-included offense, then the alleged lesser-included offense is factually included in the crime charged. Id. That said, the State may foreclose instruction on a lesser offense that is not inherently included in the crime charged by omitting from a charging instrument factual allegations sufficient to charge the lesser offense. Id. at 570 (citing Jones v. State, 438 N.E.2d 972 (Ind. 1982)). Our Supreme Court has faced the question of whether criminal recklessness is factually included in attempted murder at least twice since it issued its watershed opinion in Wright in 1995, and its decision in those cases guides our resolution of the instant question.
In Wilson v. State, the defendant was charged with attempted murder as follows:
DONALD STEWART WILSON did attempt to commit the crime of Murder, to-wit: Knowingly or intentionally killing another human being, and did so by knowingly or intentionally pointing and firing a Ruger .357 Magnum handgun at the person of Antonio Rodriguez, striking him in his left forearm, said conduct constituting a substantial step toward commission of the crime of Murder upon Antonio Rodriguez, all with the intent to kill Antonio Rodriguez.
697 N.E.2d 466, 477 (Ind.1998), reh'g denied. The Court held that criminal recklessness was not factually included in the crime charged because "it is clear that no element of reckless behavior was included in [the] charge." Id. (quoting Humes v. State, 426 N.E.2d 379, 382 (Ind.1981)).
In Ellis, the defendant was charged with attempted murder as follows: "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[.]" 736 N.E.2d at 735. The Court, citing Wilson, again held that because the attempted murder charge "did not include any element of reckless behavior, [criminal recklessness] was not factually included in the crime charged." Id.
In the instant case, the information charging White with attempted murder provides, in pertinent part: "FABIAN S. WHITE did attempt to kill Jay Johnson, by shooting him several times with a firearm, with the intent to commit the crime of murder, and which constituted a substantial step toward the commission of the crime of murder, that is intentionally killing another human being." Appellant's App. p. 4. This information, like the informations in Wilson and Ellis, includes no element of reckless behavior. Therefore, we find, like our Supreme Court found in those two cases, that criminal recklessness was not factually included in the attempted murder charge.
White seeks to avoid this conclusion by contending that the analysis from Ellis is "flawed." Appellant's Br. p. 13. He focuses on the language of the criminal recklessness statute, which...
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