Mauricio v. State , 1997 Ind. App. LEXIS 1123 ( 1997 )

OPINION

STATON, Judge.

Clifton Mauricio appeals his conviction for murder.¹ He presents two issues for our review which we restate as follows:

I. Whether the trial court erred in failing to instruct the jury on lesser included offenses.

II. Whether the evidence was sufficient to sustain his conviction.

We affirm.

The facts most favorable to the verdict reveal that Mauricio was to meet his twin brother, Clayton, at a local car wash. While waiting for his brother, Mauricio talked with Arasteed Hughes. When Clayton arrived, Hughes walked to his car and suggested that Clayton fight with Raymond Britt. The two began fighting and the fight ended when Clayton kneed Britt in the groin. Britt returned to his car. Hughes then began fighting with Clayton. Hughes, who was larger than Clayton, wrestled Clayton to the ground and began punching him in the head.

Mauricio then pulled out a gun and shot Britt who was still standing by his ear. Britt sustained gunshot wounds in his elbow and foot. Mauricio then ran to where Hughes and Clayton were fighting and shot Hughes three times from close range. Hughes sustained gunshot wounds in the back, the abdomen, and the hip. The shot in the back was fatal.

The State charged Mauricio with the murder of Hughes and battery upon Britt. After a jury trial, Mauricio was found guilty on both counts. This appeal ensued.

I.

Instruction

Mauricio first argues that the trial court erred by failing to instruct the jury on the lesser included offense of involuntary manslaughter. Instructing the jury lies solely within the discretion of the trial court. Marshall v. State, 621 N.E.2d 308, 320 (Ind.1993). A party who fails to tender an instruction on an issue cannot complain that the instructions were incomplete with regard to that issue. Clark v. State, 561 N.E.2d 759, 764 (Ind.1990). This includes instruction on lesser included offenses. Gonzales v. State, 642 N.E.2d 216, 217 (Ind.1994). Here, the record does not show a proper tender of instructions on lesser included offenses by Mauricio.² Thus, he cannot complain because the instructions were incomplete. Gonzales, 642 N.E.2d at 217; Clark, 561 N.E.2d at 764.

Merely giving the number of a pattern jury instruction is not authorized under Ind. Crim. Rule 8 as suggested by the dissenting opinion. Ind.Trial Rule 51(E) does allow the use of Indiana Pattern Jury Instructions in civil trials and allows attorneys to simply reference the instruction number rather than set out the instruction verbatim in the tender of instructions. However, the same use of Indiana Pattern Jury Instructions by merely referring to an instruction number is not mentioned in C.R. 8. Instead, C.R. 8(D) provides that the:

Requested instructions must be reduced to writing (identified as to the party making submission), separately numbered, and accompanied by a cover sheet signed by the party, or his attorney, who request such instructions and will be deemed sufficiently identified as having been tendered by the parties or submitted by the court if it appears in the record from an order book entry, bill of exceptions, or otherwise, by whom the same were tendered or submitted. Where final instructions are submitted to the jury in written form after having been read by the court, no indication of the party or parties by whom instructions were tendered should appear on any instruction.

The entirely different procedures provided in T.R. 51(E) and C.R. 8(D) conflict with each other. “The Indiana rules of trial and appellate procedure shall apply to all criminal appeals so far as they are not in conflict with any specific rule adopted by this court for the conduct of criminal proceedings.” (Emphasis added). Ind.Crim. Rule 21. T.R. 51(E) has no application as suggested by the dissenting opinion.³

Too, it should be noted that T.R. 51(E) states: “... provided, however that in the event of an appeal, where any objections are made to the giving of such instructions or the refusal to give such instruction, such numbered instructions shall be set forth verbatim in the argument section of the brief where argument is presented with reference to the refusal to give or the giving of such numbered instruction.” Ind.Appellate Rule 8.3(A) also requires that any instructions be set out verbatim in the argument section of the brief. This Mauricio failed to do which amounts to a waiver even if T.R. 51(E) applies. Lahr v. State, 640 N.E.2d 756, 763 (Ind.Ct.App.1994), trans, denied. Judge Sullivan concurred with Judge Kirsch and Judge Rucker in Lahr that because Lahr faded to include the tendered lesser included offense instruction verbatim in the argument section of his brief, he waived any error. Id.

Waiver notwithstanding, Mauricio’s argument also fails on the merits. A person commits involuntary manslaughter if he kills someone while attempting to commit battery. Ind.Code § 35-42-1-4 (1993). Even though involuntary manslaughter is factually included in the charged offense of murder, to support the giving of the tendered instruction there still must exist a serious evidentiary dispute concerning Mauricio’s intent such that a reasonable juror could conclude that Mauricio committed involuntary manslaughter but did not commit murder. Wright v. State, 658 N.E.2d 563, 567 (Ind.1995). The evidence presented does not support the giving of the requested instruction on involuntary manslaughter.

Here, although Mauricio testified that he did not intend to kill Hughes, contrary to the dissent’s position, the evidence overwhelmingly points in the opposite direction. No witnesses, other than the Mauri-eio brothers, testified that Hughes had a gun in his hands. Instead, the evidence shows that Hughes’ gun was in his pocket with the safety engaged. In addition, Mauricio did not simply fire the gun in Hughes’ direction in an attempt to stop the fight. He ran to where Hughes and Clayton were fighting and shot Hughes three times at close range in the hip, the back and the abdomen. The location of these shots could not lead to an inference that Mauricio simply intended to “touch” Hughes, but not kill him. The intent to kill can be inferred from the use of a deadly weapon in a manner likely to cause death or serious bodily injury. Cate v. State, 644 N.E.2d 546, 548 (Ind.1994). Nothing in the manner in which the crime was committed leads to the inference of any type of intent other than the intent to kill. See, Castro v. State, 580 N.E.2d 232, 236 (Ind. 1991) (because death is likely result of prolonged, severe beating, no issue of incidental death present which would support instruction on involuntary manslaughter); Smith v. State, 506 N.E.2d 31, 33 (Ind.1987) (four gunshot wounds to the back do not support intent to simply batter and giving of instruction on involuntary manslaughter); Cardine v. State, 475 N.E.2d 696, 700 (Ind.1985) (giving of instruction on involuntary manslaughter not supported where despite defendant’s assertion of self-defense, evidence showed that he stabbed victim with sufficient force that entire blade embedded in body and handle broke); Compare, Lynch v. State, 571 N.E.2d 537, 539 (Ind.1991) (evidence concerning defendant’s delusions and his immediate call to 911 support inference that he did not intend to kill victim but merely injure him); Brown v. State, 659 N.E.2d 652, 657 (Ind.Ct.App.1995) (giving of instruction on involuntary manslaughter supported where defendant immediately called 911 after shooting). Because the evidence overwhelmingly shows Mauricio’s intent to kill Hughes, no reasonable juror could conclude that Mauricio intended simply to batter him and find him guilty of only involuntary manslaughter.⁴ Accordingly, the tendered instruction was correctly refused. Wright, 658 N.E.2d at 567.

II.

Sufficiency

Mauricio also argues that the evidence was insufficient to sustain his conviction. When reviewing a claim of sufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State, 656 N.E.2d 816, 817 (Ind. 1995), reh. denied. We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if evidence of probative value exists from which a jury could find the defendant guilty beyond a reasonable doubt. Id.

The basis of Mauricio’s sufficiency argument is his contention that the State failed to rebut beyond a reasonable doubt his claim of defense of another. To prevail on his claim, Mauricio had to show that he was in a place he had a right to be, he acted without fault, and he acted with a reasonable fear of death or great bodily injury. Id. In addition, the amount of force used must be reasonable and may only be used with the belief that such a degree of force is necessary. Crisler v. State, 509 N.E.2d 822, 823 (Ind. 1987). Once Mauricio presented evidence to raise the issue of defense of another, the burden shifted to the State to disprove one of the elements beyond a reasonable doubt. Jordan, 656 N.E.2d at 817.

Here, Mauricio testified that he feared for his brother’s life because Hughes had a gun in his hand. However, the State presented evidence which showed that Hughes’ gun was in his pocket with the safety engaged. The jury could reasonably find from this evidence that Mauricio did not have a reasonable fear that his brother would suffer death or great bodily harm because Hughes did not have a gun in his hand. Id.

Furthermore, the evidence indicates that Mauricio shot Hughes three times at close range. The location of the three shots in Hughes’ back, abdomen, and hip do not evidence an intent to simply wound Hughes. Because the evidence showed that Hughes did not have a gun in his hands and that Mauricio used an unreasonable degree of force, the jury could reasonably conclude that the use of deadly force was unnecessary to stop the attack. Crisler, 509 N.E.2d at 823. Accordingly, we conclude there is evidence of probative value to support the conviction. Jordan, 656 N.E.2d at 817.

Affirmed.

GARRARD, J., concurs in part and dissents in part with separate opinion. SULLIVAN, J., dissents with separate opinion.

1 . Ind.Code § 35-42-1-1 (1993). Mauricio was also convicted of battery, a class C felony. Ind. Code § 35-42-2-1 (1993). However, none of Mauricio’s allegations of error relate to his battery conviction.

2 . Although Mauricio states in his argument that he tendered an instruction on involuntary manslaughter, the record does not indicate a proper tender. His tendered instruction only states:

Instruction No. 3.09 Involuntary Manslaughter 3. Battery ... (part one) Record at 101. This is an incomplete instruction at best. A tendered instruction which is incomplete and insufficient is properly refused by a trial court. Corley v. State, 663 N.E.2d 175, 178 (Ind.Ct.App.1996).

3 . C.R. 8(H) does reference the procedures found in T.R. 51(C). C.R. 8(H) provides:

(H) The manner of objecting to such instructions, of saving questions thereon, and making the same a part of the record shall be the same as in Rule 51(C) of the Rules of Trial Procedure.

However, this is an entirely different section and procedure than that found in T.R. 51(E) and does not render T.R. 51(E) applicable.

4 . A serious dispute in the evidence regarding intent to justify an instruction on a lesser included offense is left to the judgment of the trial judge not the jury. The dissent appears to be concerned in part that this evidence will be kept from the jury. It will not. The jury will just not be instructed to consider a lesser included offense based on the evidence. The evidence of guilt is for the jury not the question of a serious dispute. If the dissent's position were valid, a lesser included offense instruction would have to be given to the jury no matter how weak and unconvincing the evidence appears to the trial judge.