Daniel Robert Mola v. State of Indiana

Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be FILED
Feb 29 2012, 9:31 am
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ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
MARCE GONZALEZ, JR. GREGORY F. ZOELLER
Dyer, Indiana Attorney General of Indiana
RYAN D. JOHANNINGSMEIER
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
DANIEL ROBERT MOLA, )
)
Appellant-Petitioner, )
)
vs. ) No. 45A03-1105-CR-206
)
STATE OF INDIANA, )
)
Appellee-Respondent. )
APPEAL FROM THE LAKE SUPERIOR COURT
The Honorable Clarence D. Murray, Judge
Cause No. 45G02-0907-MR-5
February 29, 2012
MEMORANDUM DECISION - NOT FOR PUBLICATION
KIRSCH, Judge
Daniel Robert Mola (“Mola”) was convicted, after a jury trial, of voluntary
manslaughter,1 a Class A felony. He appeals from this conviction and raises the following
restated issue for review: whether the trial court abused its discretion when it denied Mola‟s
proposed jury instruction on the lesser-included offense of involuntary manslaughter.
We affirm.
FACTS AND PROCEDURAL HISTORY
On July 18, 2009, Christopher Elkins (“Elkins”) and Mola were at a bar called Buddy
and Pal‟s Place in Winfield, Indiana. Elkins was sitting at the bar area. When Elkins left his
seat, Mola took his place. Later, Elkins returned and entered into a “heated” conversation
with Mola. Tr. at 390. Both men appeared angry and yelled expletives at each other. Bar
employees then separated the two, and Elkins left the bar area.
Elkins accepted an offer from his friend, James Bannister (“Bannister”), to drive him
home. As Bannister and Elkins were preparing to leave the bar, they walked past Mola who
was still sitting in the bar area. Elkins shoved Mola‟s barstool before walking out to the
parking lot. After Elkins passed, Mola stood up, loaded a round into his handgun and
approached the exit while holding the pistol. A bar employee tried to stop Mola, but Mola
continued out to the parking lot.
When Mola reached the parking lot, Elkins and Bannister were near the back of
Bannister‟s vehicle. Mola raised his firearm and yelled to Elkins, “[H]ey[,] [m*f*].” Id. at
833, 836. Elkins turned around and asked Mola, “[W]hat are you going to do[?] [S]hoot
1
See Ind. Code §35-42-1-4.
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me[?]” Id. at 580, 834. Mola then fired two shots in “rapid” succession at Elkins, striking
him in the abdomen. Id. at 496. Elkins died as a result of his gunshot wounds.
On July 20, 2009, the State of Indiana charged Mola with murder and carrying a
handgun without a license. At trial, the court refused Mola‟s proposed instruction on
including involuntary manslaughter as a lesser included offense of murder. Mola was
acquitted of murder and found guilty of voluntary manslaughter, a Class A felony, and
carrying a handgun without a license, a Class A misdemeanor. Mola appeals his conviction
of voluntary manslaughter.
DISCUSSION AND DECISION
The manner of instructing a jury lies largely within the sound discretion of the trial
court, and we review only for an abuse of that discretion. Emerson v. State, 724 N.E.2d 605,
608 (Ind. 2000); Stringer v. State, 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). An abuse of
the trial court‟s discretion occurs “when „the instructions as a whole mislead the jury as to the
law in the case.‟” Ham v. State, 826 N.E.2d 640, 641 (Ind. 2005) (quoting Carter v. State,
766 N.E.2d 377, 382 (Ind. 2002)). A defendant is only entitled to a reversal if he
affirmatively demonstrates that the instructional error prejudiced his substantial rights. Hero
v. State, 765 N.E.2d 599, 602 (Ind. Ct. App. 2002), trans. denied. In determining whether a
trial court properly refused an instruction, we consider the following: “(1) whether the
instruction correctly states the law; (2) whether there is 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” that are given. Emerson, 724 N.E.2d at 608.
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A trial court must engage in a three-step analysis when determining whether to
instruct a jury on a lesser included offense of the crime charged. Wright v. State, 658 N.E.2d
563, 566-67 (Ind. 1995). First, the trial court must consider whether the alleged lesser
included offense is an inherently included offense to the principal charge. Id. If it is not, the
trial court must then decide whether the alleged lesser included offense is a factually included
offense to the principal charge. Id. at 567. Finally, if the alleged lesser included offense is
either an inherently or factually included offense to the principal charge, then the trial court
must determine if there is a serious evidentiary dispute regarding the element that
distinguishes the lesser offense from the principal charge. Id. If such a dispute is present and
a jury could conclude that the lesser offense was committed but not the principal charge, then
it is a reversible error for the trial court to refuse to give the jury instructions on the lesser
included offense. Id.Mola argues that the trial court abused its discretion when it denied his proposed jury
instruction including involuntary manslaughter as a lesser included offense to the murder
charge. He contends that his request should have been granted because involuntary
manslaughter is a factually included lesser offense in this case and there was a serious
evidentiary dispute as to whether Mola intended to kill or merely batter Elkins.
Involuntary manslaughter is not an inherently included lesser offense to murder, but it
may be a factually included lesser offense if the charging instrument alleges that the killing
was accomplished by a battery. Evans v. State, 727 N.E.2d 1072, 1081 (Ind. 2000). A
factually included lesser offense exists when the charging instrument alleges that the means
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used to commit the charged crime include all of the elements of the alleged lesser included
offense. Wright, 658 N.E.2d at 567. The charging information in this case alleged that Mola
killed Elkins “by means of a handgun.” Appellant’s App. at 35. When the charging
information alleges the use of a handgun, it alleges a touching that satisfies the elements of a
battery such that involuntary manslaughter becomes a factually included lesser offense of
murder. See Evans, 727 N.E.2d at 1081. Battery is defined as “knowingly or intentionally
touching a person in a rude, insolent, or angry manner.” Ind. Code § 35-42-2-1. “To kill
with a gunshot is to kill by a touching.” Miller v. State, 694 N.E.2d 770, 774 (Ind. Ct. App.
1998), trans. denied. Accordingly, involuntary manslaughter was a factually included lesser
offense to the murder charge in this case.
As a result, the issue of whether the trial court erred by failing to instruct the jury of
the lesser included offense of involuntary manslaughter depends on whether a serious
evidentiary dispute existed regarding the element of intent that distinguishes murder from
involuntary manslaughter. Murder is defined as “knowingly or intentionally” killing another
human being. Ind. Code § 35-42-1-1(1). Involuntary manslaughter is the killing of a human
being while “committing or attempting to commit . . . battery.” Ind. Code § 35-42-1-4(c)(3).
The trial court‟s refusal to instruct the jury on the lesser included offense would have been
an abuse of discretion only if there was a serious evidentiary dispute as to whether Mola‟s
intent was to kill or merely batter Elkins. Ketcham v. State, 780 N.E.2d 1171, 1178 (Ind. Ct.
App. 2003), trans. denied.
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Knowing or intentional killing may be inferred from the use of a deadly weapon in a
manner likely to cause death or great bodily injury. McDowell v. State, 885 N.E.2d 1260,
1263 (Ind. 2008). Here, the evidence showed that, after Elkins pushed Mola‟s barstool on his
way to the parking lot, Mola deliberately loaded a round in his handgun in order to prepare it
for shooting and ran after Elkins while brandishing the weapon. On his way outside, Mola
resisted a bar employee‟s efforts to discourage him from pursuing Elkins. Once Mola saw
Elkins standing by Bannister‟s vehicle in the parking lot, Mola pointed the handgun at Elkins
and confronted Elkins by yelling, “[H]ey[,] [m*f*].” Tr. at 833, 836. After Elkins asked
Mola whether he was going to shoot him, Mola fired his gun twice at Elkins who was
unarmed. The two shots were fired in “rapid” succession, Id. at 496, and five witnesses
testified that Elkins never advanced toward Mola before he fired the second shot. Id. at 496-
97, 581-82, 837, 937-38, 991.
Both bullets struck Elkins in his abdomen, an area of the body that Mola testified he
knew contained many vital organs, Tr. at 1382, and Elkins died from the gunshot wounds.
After the police arrived, Mola asked for the return of his own gun so that he could shoot
himself because he did not want to go to jail. Mola told officers that he knew the shooting
was not justified. Tr. at 1039, 1060. While Mola testified that he never intended to kill
Elkins, Tr. at 1314, “[a] verbal denial of the requisite criminal intent does not ipso facto
create a „serious evidentiary dispute.‟” Ketcham, 780 N.E.2d at 1178 (quoting Champlain v.
State, 681 N.E.2d 696, 701 n.6 (Ind. 1997)).
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No serious evidentiary dispute was present regarding Mola‟s intent to kill Elkins. The
trial court had sufficient evidence to conclude that Mola acted with the intent to kill and not
merely batter Elkins. Consequently, it was not an abuse of the trial court‟s discretion to deny
Mola‟s proposed jury instruction that included involuntary manslaughter as a lesser included
offense.
Affirmed.
BARNES, J., and BRADFORD, J., concur.
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