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                MEMORANDUM DECISION - NOT FOR PUBLICATION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.

                                              2
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.


                                               3
       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


                                                4
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.




                                               5
       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)).




                                               6
       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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