*1 the burned of infection of severe the risk to of dependent for attention sary medical already began had the blisters where ex- area care voluntary assumed he had whom to apparent been It should burst. to then. until least at tended seventeen- on a wounds open that Johnson Roark's find Therefore, we cannot infec risk of presented baby month-old by the supported was instruction proposed fortuitously area The fact tion. error find no record, we and evidence conse no is of infected become had not it. give to refusal court's the trial danger where the statute under quence appreciable. actual both infection III. re- argument accept Johnson's To Sufficiency legislature Evidence to conclude us quire game roulette in a engage contend Roark to intended Finally, Johnson respect to inaction or whereby was at presented the evidence ne- convictions. heedless child, albeit their support to the care insufficient long so evi unchecked continue sufficiency of could glectful, reviewing the In child. harm happen evidence not reweigh it did dence, not dowe We do. the witnesses. will credibility of This we judge the to the favorable most evidence to the look Affirmed. inferences reasonable State, all along with there therefrom, if to see be drawn CONOVER, J., PJ., HOFFMAN, value probative evidence substantial concur. supra Storey, the verdict. support Conviction Roark's A. Roark found may have jury both) (or either neglect guilty situation 1) his creation reasons:
two 2) failure burned; whereby A.J. was for A.J. attention medical prompt obtain WELLS, Appellant Quanardel Latez supporting evidence find that Since Below), (Defendant indistinguishable factually former State, v. in Howard presented v. was there we hold supra, Indiana, Appellee. STATE conviction. Roark's supporting evidence 49A02-8807-CR-288. No. Conviction B. Johnson's Indiana, Appeals AJ. since Johnson District. Second ef long term harm or great no suffered 9, 1990. July treatment, in medical delay from the fects 21, 1990. Aug. Rehearing Denied convict insufficient there conten This dependent. neglect of her of has Supreme Court Our no merit. has tion person convict in order stated prove 35-46-1-4, the State IC ato dependent subjected actor appreciable. actual danger (1985), Downey mean does This In actual. must be
injury testified treating physician case, treatment medical secure waiting to A.J. subjected hours, Johnson nearly eight *2 waived, and jurisdiction
Juvenile charged with Wells, age per- The court felony. murder, A a class jury right to a to waive mitted *3 10, February During trial on trial. had fired Wells that determined court concerned was gun. to insufficient was intent proof of The murder. Wells convict pre- to counsel requested therefore court appel- included concerning for lesser Howe, Indianapolis, arguments pare Howard heard 9, the court March On offenses. lant. from counsel argument additional Indiana, Pearson, Gen. Linley Atty. E. bat- "aggravated" guilty of Wells found Gen., Atty. Messer, Deputy Wendy Stone him to felony, and sentenced class C tery, a appellee. for Indianapolis, years. eight SULLIVAN, Judge. issues, following presents Wells restate: (Wells) appeals Latez Wells Quanardel felony. in fail- class C battery, a court erred for trial (1) his conviction Whether We affirm. recklessness criminal consider ing at- offense included as a lesser early morn- disclose The facts murder; tempted 1987, Thomas 19, Corey April ing hours walking pro- erred friends court (2) other the trial several Whether a impeaching from hibiting Wells Indianapolis. rink skating a home from of a Monte a walking, black witness they were State's While stopped. adjudication; them and juvenile up prior beside pulled Carlo got out driver stopped, the car After in al erred trial court (3) Whether hats were why their boys asked testify as Hamby to lowing James boys not did right. When turned resi- gunshot with reference expert into reached the car the driver respond, due; | thing." "give me and said car aggra- for (4) Wells' Whether run boys started The Record supported battery was vated talk- the driver thought they because evidence; and testified Corey Thomas gun. ing about en- improperly court (5) Whether he saw around he turned basis on the sentence hanced Wells' Several gun. little black holding a driver facts. of incorrect struck fired, bullet and one shots were Later in the back. brother Corey Thomas' I stopped a black police evening, erred court the black description of matching the car recklessness criminal failing to consider gun a hand found police Monte Carlo. murd offense included lesser boy a another Corey Thomas the car. car. In Humes driver as the er.1 identified Court, some reason, rath- Supreme some trial didn't, a bench Although case involved this 1. - uh, to have want us wisdom, does record their is clear jury trial, it than er offense an included enti- he was judge not believe recklessness did criminal me, Although, it lesser as a attempt recklessness criminal murder. to consider on tled At the attempted murder. where many situations offense fact included there's like seems 1988, Wells hearing requested held March we do have than Uh, other is there. it recklessness criminal consider offense uh, court battery is an attempted murder. lesser at 513- Record attempt murder." stated: response In the defendant agreement with I'm in think "I they pretty much caselaw our Court held that 'attempted recklessness'". Id. at 388. is not a lesser includ ed offense of the crime of attempted mur proposition general der. The court there stated: application only statute has in tent crimes in past years "It well stated re settled that the test deter- peatedly. eg., Yeagley See mining whether it was error to refuse 730, 73.6; 467 N.E.2d Conley v. State instructions on lesser included offenses (1983) Ind., 103, 105; Smith v. two-step analysis. embodied It (1981) Ind., 1179, 1185; must be by looking determined at the Dist., Rhode v. State 1st 181 Ind. indict, language of the statute and the *4 265, App. 666, However, 668. ment or information whether the lesser stating proposition cases do not offense is necessarily included within the "specific define Recently, intent." our Su greater and also whether there has been preme Court endeavored clarify to evidence introduced at trial to which the proposition. In Henderson v. State included applica- offense instruction was 1105, signaled the court ble." Id. at 882. that the "specific terms "gener intent" and test, Applying compared the court al intent" are no longer accurate terms governing attempted statutes murder and respect with to culpability. noting After criminal recklessness and considered the ways the different in which courts have charging instrument in involved that case. terms, used the and the resultant confu The court then found that there was no sion, stated, element charg- of recklessness in either the "In promote greater order to clarity and ing general information or our attempt precision, 'specific intent'-'general statute, (Burns 1.C. 85-41-5-1 Code Ed. intent' terminology was abandoned Repl.1985). gener- The conclusion that our Model Code. [Citations omitted]. Penal attempt al substantially implemented Indiana statute has no element of reck- this lessness upon was based earlier holdings approach with revision of its criminal general attempt our statute can statutory have code 1976 and the designa- application only specific to intent crimes. tion 'intentionally,' 'knowingly,' 'recklessly' specific as denoting terms de- recklessness, Analyzing Id. crime of grees of __ culpability. Ind.Code the court held 835-41-2-2. § "it is that the offense of reckless- clear Subsequent holding cases ness statutory scheme attempt applica Indiana statute can have include the essential element of only specific tion to intent crimes result reckless general behavior and is a intent reviewing ed from discussions whether offense." Id. at 888. attempt the Indiana applies statute to The court then concluded: requiring crimes a culpability of mere clearly "Since we have held that our at- 'recklessly,' 'intentionally' rather than or tempt application only statute can have 'knowingly.' As [Citations omitted.] crimes, specific to intent and there is no cases, used in this 'spe line of the term element of intent in the offense cific intent' was appli utilized to exclude recklessness, we hold that the offense attempt cation of the statute to crimes of recklessness is not a lesser included requiring 'recklessly' prerequisite as the attempted
offense of the crime of Henderson, mur- culpability." 534 N.E.2d at and, further, der there can be no 1107-1108. purposely engage This statement from Henderson would indi intends to in the conduct attempt applies prohibited purposely cate that our statute to crimes which is to or intends culpability proved "knowingly" bring where the prohibited about result. Rhode has favorably by cited our Court. been discussion "intentionally." Dist., 206, Ind.App. Anthony Rhode v. State 1st See 274 Ind. attempt indicates stat N.E.2d 632, see discussion application only ute has where the defendant Institute, American Law Model Penal Code and There- did so. he culpability dant's longer correct no case, concludes, this fore, Wells only applies attempt statute say whether considered only cor should It is crimes. intent" "specific gun firing specific conduct is not attempt statute say that rect constituting crimi- reckless, thereby merely "recklessly" requiring to crimes applicable nal recklessness. is under It culpability. prerequisite as the en attempt if were that even cannot acknowledges why one standable attempt could, in reckless gage recklessness to find heedlessly result bring about of- instances, a lesser be some However, it is somewhat murder, recklessness uncontemplated. attempted fense the Court of- how "necessarily" understandable be a less this basic stated, transition made Furthermore, Humes we have as fense. a crime al- culpability requires a determination concept murder intentionally. "recklessly" could knowingly culpability legation charge, a lesser inclusion This eliminates Wells, interpreta how- charged. Our attempted murder. crime as such within such leads ever, Henderson suggests of Humes tion *5 prospective that, charging a rea- by permits charge if the evidence conclusion murder reck- acted crime, State he the whether attempt as to an doubt with sonable defendant intentional- knowingly or conduct was than lessly defendant's rather prove must act. reckless if the analysis, may convict ly this Under purposeful. doctrine to the is a reference This assertion ato so, not entitled it is to do fails State is which offenses." conduct "related of of the basis on conviction
merely "reckless."
the doctrine
adopted
yet
has not
Indiana
However,
Su
that Humes
argues
offenses.
related
The defendant
of
in Mah
the doctrine
discussed
that,
consti- preme
proposition
the
stands
murder,
In
(1986)
attempted
v.
offense
la
State
tute a lesser
at-
Mahla,
an
said:
itself be
court
must
the
lesser offense
the
holds
doctrine
offense
argues
'related'
"'the
Wells
crime.
tempted
defen-
the
demonstrates
the evidence
de-
a criminal
circumstances
in
some
if
of-
a lesser
taking the sub-
committed
may have
fendant,
course of
dant
in the
to the
led
charge,
acts that
attempt
in the course
leading to the
fense
step
stantial
offense
if such
even
charge,
greater
conduct
engages
actually
greater
inherently
In the
offense.
lesser
a
constitutes
factual
prosecutor's
charge
the trial
nor
shows
the record
case
firing
by which
guilty of
means
'allegations of
defendant
found
court
committed,
charged
greater
intent
revolver,
found
but
requests,
so
defendant
if the
attempted mur-
to constitute
not sufficient
opportu-
given the
be
should
fact
trier of
because
argues
Wells
der.
of-
lesser
the 'related'
consider
nity to
revolver,
fired the
Wells
found that
at 578-574.
Id.
fense."
the defen-
dispute was
element
only
with-
will occur
result
that the
A belief
5.01,
(1985).
result.
Commentaries,
pp. 301-307
§
Penal
Model
suffice.
will
conduct
further
attempt,
out
that as to
Code states
Model
5.01, pp.
and 301
§
Commentaries
possible
Code
are two
There
purpose.
mens rea
then,
the conduct
(1985).
essence
In
defen-
requirement
exceptions
to the
step
must
substantial
pur-
constitutes
required
purposive. The
be
conduct
dant's
committing the
purpose with the
be done
encompass
of the circumstanc-
all
pose
need
sense, then,
this
It is in
principal crime.
the sub-
definition
the formal
es included
Although
purposive.
be
conduct
circumstances
As to such
offense.
stantive
its
adopted
Model Code
has not
degree
Indiana
person acts
if
approach in
implemented its
entirety,
it has
required for the commission
culpability
intent"-"specific
intent"
"general
abandoning
exception con-
second
completed crime.
N.E.2d
terminology.
Henderson,
an ele-
causing
supra,
a result
where
offenses
cerns
v. Keihn
State
also
1107. See
not have
need
the actor
In this situation
ment. -
particular
achieve
purpose to
conscious
knowingly
intentionally
We need not decide whether a criminal
or
shot the victim
in that he
objective
had no conscious
might
appropri-
charge
victim,
ate
some circumstances under a
shoot
nor was he aware
aof
murder,
nor whether
re-
high probability
doing
that he was
so. The
adopted
lated offense doctrine should be
may
trier of fact
infer
that conduct was
Indiana.
was not convicted of crimi-
knowingly
intentionally performed
or
ag-
nal recklessness. He was convicted of
the voluntary
prohibited
commission of a
gravated
battery,
act as well
surrounding
as from
circum
murder,
charge
stances.
Carter
State
1st Dist.
supports
evidence
the conviction for that
Ind.App.,
Also,
"(intent
N.E.2d 1151.
crime.
battery may
commit a
be determined
from a consideration of the conduct and the
(Burns
Under 1.0. 35-42-2-1
Code
sequence
natural and usual
to which such
Ed.Supp.1989), battery is defined:
logically
reasonably
points."
"A person
knowingly
who
or intentional
Parker v.
3d
Ind.App.,
Dist.
rude,
ly
person
touches another
in a
inso-
134. The
this
lent,
angry
battery,
manner commits
car,
case
driving
shows that Wells was
Class B misdemeanor.
the of-
was seen
gun,
with the
and that the victim
(8) A
felony
fense is:
...
Class C
if it
was shot in
sup
the back. This evidence
bodily injury
any
results
in serious
ports the determination that Wells know
person
other
if it
is committed
ingly
intentionally
touched the victim in
deadly
weapon."
means of
rude,
angry
insolent or
manner. There
separate
argument,
In a
which we now
fore, we hold the evidence sufficient
address,
that the evidence is
justify the trial court's determination that
*6
support
insufficient
his conviction for
guilty
battery.
defendant was
of
aggravated battery.
argues
Wells first
eyewitness
argument
that
the
identification of
Wells'
that
Wells
the
erred in
court
perpetrator
questionable.
as the
On a
failing
to consider criminal recklessness
as
evidence,
lesser included offense of
mur
sufficiency
of
review
the
of the
reweigh
this court will not
nor
implies
der
that
the trial court was re
judge
credibility
of the witnesses. The quired to convict him of criminal reckless
Corey
evidence reflects that
Thomas
battery.
ness
rather
than
as
stated,
another witness identified the defendant
supports
the evidence
the conviction
soon after the crime was committed and
aggravated battery. Requiring
again
testimony
in court. The fact that the
court to consider criminal recklessness as a
may
questioned
of the witnesses
have been
lesser
included offense in this case would
testimony nonproba-
does not render
judge
permit
invite a trial
to do what
not
is
tive.
le.,
jury,
"compromise
ted of a
to reach a
(1982) Ind.,
verdict".
See Jones v. State
argues
Wells next
that he was not
972;
(1974)
Hester v.
262
sufficiently
gun
linked to the
which was
284,
Ind.
kins, boys group, one of the other argues Wells the trial court at trial that he had testified no doubt refusing impeach erred in to allow him to car, he saw the driver of the who he identi one the State's witnesses with evidence of Wells, gun. fied as with the juvenile adjudication. prior delinquency of a argues argues juvenile prior Wells also the evi Wells delin quency dishonesty, insufficient dence was show that he involved a crime 1372 not would possibly they mistakes Anderson
which, Ashton improper as adults. make 210, general N.E.2d Ind. witness credibility credibility of a impeach assume admissible ly be dishonesty accurately be determined may if the witness in childhood. occurred instances conviction. a criminal resulted impeached may not be witness that a policy a witness clear is in Indiana law is, there adjudication juvenile prior by a juvenile prior aby impeached not be may commit court The trial one. fore, a sound adjudication juvenile because adjudication impeach permit refusing to no error ted conviction. a criminal constitute does prior by evidence witness of a ment N.E.2d v. State Logston adjudication. juvenile 525; Perkins (1975) 269 1379; Pallett N.E.2d Conceding the Ind. III law, argues Wells body of of this existence argues next Wells underlying policy its law Indiana Hamby to Jack permitting erred impact considered adequately gun respect expert with as an testify 358, 90 U.S. (1970) 397 Winship re of In argues Specifically, residue. shot re In In Win 1068, 25 L.Ed.2d S.Ct. as the employed Hamby was although held States United ship, the Indianapo Director Laboratory United Clause Process Due Agen Services County Forensic lis/Marion State, in a requires Constitution States back the educational not have he did cy, prove proceeding, delinquency juvenile chemistry, to degree aas such ground, reason beyond juvenile guilt of subject expert on considered essentially argument Wells' doubt. able also residue. gunshot to the are entitled that, juveniles because knowledge personal Hamby lacked adults, a protections procedural same case. Wells' specifics of adjudication delinquency juvenile purposes a criminal same whether The determination credibility of challenging thereafter expert testify as competent witness words, same In other juvenile. *7 judge. trial the discretion left to underlies character for concern Armstrong Indemnity Co. Travelers juvenile present case Ashton determi The 349. N.E.2d 442 on delinquent to be adjudicated has been spe the education upon is based nation constitute would of conduct the basis partic witness experience un cial character bad dishonesty or Moody matter. subject ular disagree. We Ashton. der Hamby did Although N.E.2d States United The fact evi chemistry, the in degree juveniles Winship determined in in experience did have he shows dence protections, process to due entitled foren mark identification firearm/tool juve conclusion lead to does manage and job was His ballistics. sic equiva is the adjudication delinquency nile scien forensic all the activities direct impeach to a lent in specialists ballistics and criminal tists policy underlying The purposes. ment em previously laboratory. He Pal juvenile. protect is to law juvenile Laboratory System ployed of a goal lett, supra, Army States in the United Virginia and juveniles reform is to proceeding juvenile Final Laboratory. Investigation pat Criminal and before young still they are while training received he ly, he testified en become behavior of criminal terns primer gunshot Academy FBI im to be witness To allow trenched. by read his skills maintained juvenile residues prior aof by evidence peached gunshot regarding literature ing current undermine adjudication delinquency expe Hamby's special residue. account into takes law goals. these allow the court rience was may make immature are juveniles The trial court's determination Hamby testify expert. The fact Hamby personally supervise appropriate of an sentence is discretionary, did not and is testing appeal only reviewable on if the disqualifying. this case is not appears manifestly sentence unreasonable. testimony testing His concerned residue (1986) Ind., and variables which affect such test re Scruggs 935; (1982) Ind., Bryan v. State appropriate sults. This evidence was 709. The pre determination whether the light of Wells' assertion that the absence of sumptive sentence should be enhanced or ineseap residue on his hands to an leads mitigated discretionary. is also able conclusion that he did not fire if the mitigates fact enhances or weapon. Wells has not demonstrated sentence, making the factors used in quali the trial court abused its discretion that determination must be set forth in the fying Hamby expert as an the area of (1989) Ind., record. Gilley v. State gunshot testing. residue case, N.E.2d 130. In the set forth the it aggra factors considered as IV vating regard factors. In this it is clear argues Defendant the evidence that the court did not consider the informa presented at trial was insufficient to sus- alleges factually tion which Wells to be battery, a class C incorrect. tain his conviction for
felony. already as we have dis- Moreover, the record reflects I, cussed under Issue our review of the prosecutor's upon statements were based probative record shows that evidence was appearing in presentence information presented during upon which the court report. sentencing At hearing, guilty aggrava- could have found Wells court asked the if he defendant had had a battery. ted presentence report chance to review the attorney.
with his Wells indicated that he specifically: had. The court also asked V "Alright, body report itself is that the court com any you there factual information imposed mitted fundamental error when it wish to correct?" Record at 519. Wells' upon factually an enhanced sentence based Honor, attorney responded, my "Your it's imposed incorrect information. The court understanding conferring with Mr. Wells, eight year including sentence on Wells that the factual information is essen- year presumptive the five sentence for a tially Record at 519-520. There- correct." felony, plus years class C three on the fore, clearly given opportuni- Wells was aggravating basis of circumstances. necessary ty any to make corrections to the *8 presentence in the specifically argues that the factual information re- follow- therefore, We, port. perceive no error ing by prosecutor three the statements dur- sentencing the of Wells. ing sentencing hearing factually the sentencing report incorrect: reasons, foregoing judg- For all the year period indicates a one of time in which ment is affirmed. school, (2) that, Wells did not attend al-
though claimed to an active mem- SHIELDS, P.J., separate concurs with church, presentence ber of a certain STATON, J., opinion which Joins. report pastor of indicated that SHIELDS, Presiding Judge, concurring. church, contacted, when could not recall separately I in the included of- name, concur and that defendant's "Sen- Wells' aspect majority fense of Issue I of the appears tencing Memorandum" to be my disagreement opinion order to record presentence report. direct conflict with challenge does not otherwise the ade- factors. 3. Wells quacy aggravating factors stated as culpa culpability, yet another there appear comments incidental ete. "purposely", "purposeful" bility of opinion. is instruc- Also, Code Model Penal (1981), Humes Therefore, unquestiona- reference. controlling. a valuable and 379 is tive chose legislature in mind our must bear err did not
bly the trial court refusing an includ- and acknowl- recklessness model code criminal consider not to enact far as so mur- that decision respect charged edge and ed offense the model of Humes between Furthermore, rationale differences there are der. court concluded supreme apparent. criminal code. code and inher- "recklessly" is not culpability I because Issue to Wells's I find no merit "inten- culpability of in the ently included crimi- which no cireumstance there is words, In other "knowingly." tionally" or offense an included can be nal recklessness "intentionally" have an possible course, unless, of attempted murder have a yet and culpability "knowingly" charged culpabilities culpability. "recklessly" It charge. attempted murder body "knowingly" are "intentionally" majori- agree with I do not was not. "recklessly" from completely distinct offense issue ty's resolution they address different culpability because no error because there is grounds on the "knowing- "Intentionally" concerns. aggrava- actually convicted "Wells consciousness actor's concern the ly" supports the battery and the ted conduct, "reckless- while awareness crime." disregard for actor's ly" concerns opin- majority concur I otherwise conduct. from his might result harm ion. culpa- requires a an offense "knowingly" will "intentionally" or bility of "reck has a an offense
never include charged as unless it is culpability lessly"
such. supreme
Further, my opinion, our related offense rejected the implicitly LELOUP, Joseph Sterlin may exclude the State it held doctrine (Defendant), Appellant offense necessarily included even man- by the finder's consideration fact Betty Jean LELOUP William charges the information ner in which (Plaintiffs). LeLoup, Appellees (1986), Dorsey offense. principal inconsistent It is 260. No. 64A04-8812-CV-404. necessarily may exclude the State hold Indiana, Appeals Court of the defen- yet permit offense District. Fourth same excluded interject the dant tendering an instruction July the offense jury to consider allow Sept. Rehearing Denied charged offense. alternative *9 majority's statement
I am concerned prove purposeful must charged with
by a defendant I be misunderstood. crime will statement, that, by that emphasize
want step saying the substantial majority is intentionally done conduct, must be attempt, crime of knowingly in the committing the purpose of done with saying majority is not crime.
principal