                                                                         FILED
                                                                    Sep 28 2016, 7:17 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Cara Schaefer Wieneke                                      Gregory F. Zoeller
Wieneke Law Office, LLC                                    Attorney General of Indiana
Brooklyn, Indiana                                          James B. Martin
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

John W. Thomas,                                            September 28, 2016
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           84A01-1602-CR-235
        v.                                                 Appeal from the
                                                           Vigo Superior Court
State of Indiana,                                          The Honorable
Appellee-Plaintiff.                                        David R. Bolk, Judge
                                                           Trial Court Cause No.
                                                           84D03-1501-F1-204



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                 Page 1 of 15
[1]   Following a jury trial, John W. Thomas (“Thomas”) was convicted of

      attempted murder,1 a Level 1 felony, attempted aggravated battery2 as a Level 3

      felony, attempted battery with a deadly weapon3 as a Level 5 felony, and

      criminal recklessness4 as a Level 6 felony. He appeals his conviction for

      attempted murder and raises the following restated issue: whether the trial

      court committed fundamental error when it instructed the jury that voluntary

      intoxication is not a defense to attempted murder.


[2]   We affirm.


                                      Facts and Procedural History
[3]   The facts most favorable to the verdict are that, on the evening of January 17,

      2015, Damita Jaffe (“Jaffe”) and her boyfriend Craig Robinson (“Robinson”)

      were getting into Jaffe’s vehicle when Thomas, whom Jaffe and Robinson

      knew, and his wife (“Annette”) pulled up and parked. Thomas got out of his

      vehicle and approached Robinson, who also got out of his car, and the two

      exchanged words. Thomas’s demeanor was aggressive, and Robinson smelled

      alcohol on Thomas’s breath. Thomas asked, “[Y]ou think I’m playin’?” and

      then popped the trunk of his car to show Robinson that he had a shotgun in




      1
          See Ind. Code §§ 35-42-1-1(1), 35-41-5-1.
      2
          See Ind. Code §§ 35-42-2-1.5, 35-41-5-1.
      3
          See Ind. Code §§ 35-42-2-1(g), 35-41-5-1.
      4
          See Ind. Code § 35-42-2-2(b)(1).


      Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 2 of 15
      there. Tr. at 57. Jaffe’s adult son, Bobby Vinson (“Vinson”), walked up to the

      scene, Thomas’s attention turned to Vinson, and they argued. Thomas

      retrieved the shotgun and pointed it at Vinson for two to three minutes.

      Thomas put the gun back in the trunk, but thereafter, Thomas swung at Vinson,

      and the two fought. Jaffe attempted to defuse the situation, grabbing Thomas’s

      arm. She smelled alcohol on his breath. Eventually, Thomas and Annette

      drove away.


[4]   A short time later, while Jaffe, Robinson, and Vinson were still outside, they

      heard gunshots. Thomas was fifty to seventy feet away, walking toward Jaffe’s

      house while shooting a shotgun.5 Jaffe was hit in the face and fell to the

      ground, near her vehicle. Jaffe heard more shots as she was on the ground.

      Robinson and Bobby ran and were not harmed. Jaffe’s daughter, Anna Vinson

      (“Anna”), lived at Jaffe’s house along with her two daughters, and at some

      point she had stepped out on the front porch and was grazed by pellets from

      Thomas’s shotgun. Jaffe was lying injured on the ground near a car, and when

      she heard Thomas’s footsteps running away, she drove to a nearby police

      station.


[5]   Police later found Thomas and Annette at their home. They searched the car

      and found two empty vodka bottles. Police observed no injuries to Thomas

      when he was arrested later that night. The State initially charged Thomas with



      5
       Thomas was using a 12-gauge shotgun loaded with birdshot, as opposed to buckshot or a single slug. Tr. at
      500; State’s Ex. 18.

      Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                  Page 3 of 15
      four counts of Level 1 felony attempted murder and one count of Level 5 felony

      robbery, but it later amended the charging information by removing a

      “knowing” mens rea from Counts 1 through 4 and removing the robbery

      charge. A four-day jury trial was held in December 2015.


[6]   Annette, who at the time of trial was facing criminal charges of robbery and

      criminal recklessness related to the January 17, 2015 incident and had been

      granted use immunity, testified that, on the night in question, Vinson had

      pointed a pistol at Thomas and had hit Thomas in the face with it. Annette

      said that Vinson hit her, as well. She and Thomas got back in their car, and

      that, as they drove away from the scene, she heard two “loud noises” that she

      believed were gunshots. Tr. at 310, 312. She believed that “they was following

      us shootin’ at us[.]” Id. at 312. She said that Thomas’s face was bloody from

      being hit by Vinson, describing it as “all messed up” and that he “had blood

      everywhere.” Id. at 310. They stopped to wipe his face, and Thomas got out

      and popped the trunk and left. She did not see where he went, but heard two

      “big booms,” and when she looked out, she saw Thomas running back to the

      car. Id. at 317-18. Thomas got in the driver’s seat and said, “[T]he f*ck is

      shootin’ at us[.]” Id. at 323. Thomas and Annette sped away while “tryin’ to

      ditch them,” but eventually the car’s “back tire blew,” the vehicle left the

      roadway, and, after a short ride with a person who offered assistance, they

      walked home. Id. at 325. Annette testified that Thomas was intoxicated that

      night. Id. at 330.




      Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 4 of 15
[7]   The trial court instructed the jury regarding the elements of attempted murder,

      as well as the following lesser-included offenses: Level 3 felony attempted

      aggravated battery; Level 5 felony attempted battery with a deadly weapon;

      Level 5 felony attempted battery resulting in serious bodily injury; and Level 6

      felony criminal recklessness. Appellant’s App. at 145-165. The trial court

      instructed the jury on the mens rea requirements for acting intentionally,

      knowingly, and recklessly. Id. at 168-170, 173. As Thomas was pursuing a

      claim of self-defense, the trial court instructed the jury on the elements of a self-

      defense claim. Id. at 166.


[8]   The trial court also read Final Instruction No. 28 regarding voluntary

      intoxication. It stated:

              Voluntary intoxication is not a defense to a charge of Attempted
              Murder. You may not take voluntary intoxication into
              consideration in determining whether the Defendant acted with
              the intent to kill as alleged in the Information.


              Voluntary intoxication is not a defense to the lesser-included
              offenses of Attempted Aggravated Battery, a Level 3 Felony;
              Attempted Battery With a Deadly Weapon, a Level 5 Felony;
              Attempted Battery Causing Serious Bodily Injury, a Level 5
              Felony; and Criminal Recklessness, a Level 6 Felony. You may
              not take voluntary intoxication into consideration in determining
              whether the Defendant acted recklessly, knowingly, or
              intentionally as alleged in the lesser included offenses of those
              included in the Information.


      Id. at 167.



      Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 5 of 15
[9]    The jury found Thomas guilty of: (1) Level 1 felony attempted murder with

       respect to Vinson; (2) Level 3 felony attempted aggravated battery with respect

       to Jaffe; (3) Level 5 felony attempted battery with a deadly weapon with respect

       to Anna; and (4) Level 6 felony criminal recklessness with respect to Robinson.

       Id. at 185-205. The trial court imposed an aggregate term of thirty-five years

       executed. Thomas now appeals his attempted murder conviction.


                                       Discussion and Decision
[10]   Thomas asserts that he was “too intoxicated” to form a specific intent to kill

       Vinson and that the trial court committed fundamental error “when it

       instructed the jury that it could not consider Thomas’s intoxicated state when

       determining whether Thomas possessed the intent to kill Bobby Vinson.”

       Appellant’s Br. at 7, 10.


[11]   We afford trial courts broad discretion in the manner of instructing the jury,

       and we review such decisions only for an abuse of that discretion. Minor v.

       State, 36 N.E.3d 1065, 1072 (Ind. Ct. App. 2015), trans. denied. This Court will

       reverse a trial court’s decision to give a particular instruction only if the giving

       of the instruction constituted an abuse of discretion. Id. In reviewing a

       preserved challenge to a jury instruction, the reviewing court considers: (1)

       whether the instruction is a correct statement of the law; (2) whether there was

       evidence in the record to support giving the instruction; and (3) whether the

       substance of the instruction is covered by other instructions given by the court.

       Hubbard v. State, 742 N.E.2d 919, 921 (Ind. 2001). An improper instruction will


       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 6 of 15
       merit reversal only if it “‘so affects the entire charge that the jury was misled as

       to the law in the case.’” Id. (quoting White v. State, 547 N.E.2d 831, 835 (Ind.

       1989)).


[12]   Here, trial court gave Final Instruction No. 28, which in relevant part stated:


               Voluntary intoxication is not a defense to a charge of Attempted
               Murder. You may not take voluntary intoxication into
               consideration in determining whether the Defendant acted with
               the intent to kill as alleged in the Information.


       To preserve an instructional error for appeal, “the defendant must object to the

       proposed instruction, and such objection must be ‘sufficiently clear and specific

       to inform the trial court of the claimed error and to prevent inadvertent error.’”

       Minor, 36 N.E.3d at 1072 (quoting Fry v. State, 748 N.E.2d 369, 373 (Ind.

       2001)). At trial, Thomas did not object to Final Instruction No. 28 and, thus,

       has waived the issue for appeal. He correctly recognizes that he must establish

       fundamental error to succeed on appeal. Fundamental error is defined as an

       error so prejudicial to the rights of a defendant that a fair trial is rendered

       impossible. Perez v. State, 872 N.E.2d 208, 210 (Ind. Ct. App. 2007), trans.

       denied. To be considered fundamental, an error “‘must constitute a blatant

       violation of basic principles, the harm, or potential for harm must be

       substantial, and the resulting error must deny the defendant fundamental due

       process.’” Id. at 210-11 (quoting Spears v. State, 811 N.E.2d 485, 488 (Ind. Ct.

       App. 2004)).




       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 7 of 15
[13]   As Thomas reviews for us on appeal, the defense of voluntary intoxication in

       Indiana enjoys a long and varied history, ranging from not being recognized as

       a defense in early common law, to being permitted “to the extent that it

       negate[d] specific intent,” which was eventually codified as Indiana Code

       section 35-41-3-5(b), which was thereafter determined to be unconstitutional in

       Terry v. State, 465 N.E.2d 1085, 1088 (Ind. 1984). See Appellant’s Brief at 13-19.

       In 1996, the United States Supreme Court held that a state could prohibit a

       criminal defendant from offering evidence of voluntary intoxication to negate

       the requisite mens rea without violating the Due Process Clause of the United

       States Constitution. Montana v. Egelhoff, 518 U.S. 37, 56 (1996) (“The people of

       Montana have decided to resurrect the rule of an earlier era, disallowing

       consideration of voluntary intoxication when a defendant’s state of mind is at

       issue. Nothing in the Due Process Clause prevents them from doing so, and the

       judgment of the Supreme Court of Montana to the contrary must be

       reversed.”). Thereafter, in 1997, Indiana’s legislature enacted Indiana Code

       section 35-41-2-5 (“the voluntary intoxication statute”), which provides:

               Intoxication is not a defense in a prosecution for an offense and
               may not be taken into consideration in determining the existence
               of a mental state that is an element of the offense unless the
               defendant meets the requirements of IC 35-41-3-5.


       Indiana Code section 35-41-3-5, to which the voluntary intoxication statute

       refers, states:




       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 8 of 15
                It is a defense that the person who engaged in the prohibited
                conduct did so while he was intoxicated, only if the intoxication
                resulted from the introduction of a substance into his body:


                (1) without his consent; or


                (2) when he did not know that the substance might cause
                intoxication.


[14]   In Sanchez v. State, 749 N.E.2d 509, 519-21 (Ind. 2001), a defendant challenged

       the voluntary intoxication statute and argued that it was error to give the

       voluntary intoxication instruction because it violated his right to present a

       defense under the Indiana Constitution.6 As the State observes, in Sanchez, our

       Supreme Court “undertook a comprehensive review of the [voluntary

       intoxication] statute” and concluded that it comported with the Indiana

       Constitution and did not violate a defendant’s right to present a defense.

       Appellee’s Br. at 20. The Sanchez Court found that the voluntary intoxication

       statute does not negate the mens rea requirement, explaining:

                [W]e agree that a defendant has a right to present relevant
                evidence to negate an element of any charged offense. But we
                disagree . . . that the voluntary intoxication statute denies this
                right. The statute redefines the requirement of mens rea to
                include voluntary intoxication, in addition to the traditional
                mental states, i.e., intentionally, knowingly, and recklessly.



       6
         The voluntary intoxication instruction in Sanchez v. State, 749 N.E.2d 509 (Ind. 2001), stated, “Voluntary
       intoxication is not a defense to the charge of Rape and Confinement. You may not take voluntary
       intoxication into consideration in determining whether the Defendant acted knowingly or intentionally, as
       alleged in the information.” Id. at 511.

       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                      Page 9 of 15
                Thus, evidence of voluntary intoxication7 does not negate the
                mens rea requirement. . . . Rather, it satisfies this element of the
                crime.


       Sanchez, 749 N.E.2d at 520. Sanchez argued that the voluntary intoxication

       instruction bound the jury “to find intent where it may not have been proved, or

       to disregard evidence that negates intent,” but the Court was not persuaded:

                We do not find Sanchez’s claim persuasive. The voluntary
                intoxication instruction does not unconstitutionally compel the
                jury to make a finding of intent. In effect, it provides that the
                crime is committed if it is done with the requisite mens rea or as
                a result of voluntary intoxication.


       Id. at 521. The Sanchez Court observed that the voluntarily intoxicated offender

       is “at risk for the consequences of his actions, even if it is claimed that the

       capacity has been obliterated to achieve the otherwise requisite mental state for

       a specific crime.” Id. at 520.


[15]   Thomas argues on appeal that, although a defendant’s voluntary act of

       becoming intoxicated satisfies the general intent to commit an offense, Indiana

       law treats attempted murder differently than other intent crimes, as it requires

       proof of specific intent to kill. Thomas relies on this “special treatment” given




       7
         The Sanchez Court clarified that the voluntary intoxication statute “does not ‘exclude relevant evidence,’”
       and thus “does not necessarily proscribe evidence of the defendant’s use of alcohol or drugs. . . . [T]his
       evidence may be admissible as general background, or as relevant to something other than lack of mens rea,
       e.g., identity.” 794 N.E. at 519-20.

       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                     Page 10 of 15
       to attempted murder,8 arguing that “this uniqueness affects the constitutionality

       of Indiana Code section 35-41-2-5, the voluntary intoxication statute, as applied

       to attempted murder.”9 Appellant’s Br. at 8. His position is that “[w]hile our

       Legislature has defined voluntary intoxication as one means of establishing the

       general intent element of a criminal offense, it has not defined voluntary

       intoxication as a means of establishing specific intent for crimes such as

       attempted murder.” Id. at 18 (emphasis added). He contends, then, that the

       trial court’s Final Instruction No. 28, which prohibited the jury from

       considering evidence of intoxication when determining whether Thomas

       possessed an intent to kill Vinson, deprived him of a fair trial and constituted

       fundamental error such that his conviction for attempted murder should be

       reversed.10


[16]   The State responds that Final Instruction No. 28 was a correct statement of the

       law, and it was not error, let alone fundamental error, to give it. We agree.




       8
         “Attempted murder is a special case, deserving special treatment.” Richeson v. State, 704 N.E.2d 1008, 1010
       (Ind. 1998) (addressing special treatment of attempted murder in context of jury instructions).
       9
         We note that Thomas does not contend that there was not enough evidence of intoxication for the trial
       court to give the instruction. Indeed, he argues that he was “too intoxicated” to form the requisite intent to
       kill Vinson. Appellant’s Br. at 10; see also Reply Br. at 4 (“Clearly Thomas [] established that he was
       intoxicated; otherwise, the trial court would not have found it necessary to instruct the jury that it could not
       consider the evidence for any reason.”)
       10
          We note that Thomas’s argument throughout his brief is that the voluntary intoxication instruction denied
       him of a fair trial, but he includes the general statement that he was “precluded from presenting evidence” of
       his intoxication “that could have negated one of the essential elements of the offense of attempted murder[,]”
       and this violated his constitutional right to present a defense and made a fair trial impossible. Appellant’s Br.
       at 19. He does not further explain what evidence he was precluded from presenting or when that occurred
       during trial. Thus, Thomas has waived any claim that he was erroneously precluded from presenting
       evidence for failure to present cogent argument or support. Ind. Appellate Rule 46(A)(8).

       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                        Page 11 of 15
       The voluntary intoxication statute expressly states that voluntary intoxication

       “is not a defense to a prosecution for an offense.” Ind. Code § 35-41-2-5

       (emphasis added). Thomas is effectively asking us to carve out an exception for

       attempted murder, i.e., voluntary intoxication is not a defense to a prosecution

       for an offense, except for the offense of attempted murder. Thomas cites to no

       case law in support of his position. Like Thomas, we found no case that

       directly speaks to the precise question of whether the voluntary intoxication

       statute applies to the offense of attempted murder. However, at least a couple

       of cases, involving an appeal from an attempted murder conviction, have

       touched on the fact that voluntary intoxication is not a defense.


[17]   In Berry v. State, 969 N.E.2d 35 (Ind. 2012), our Supreme Court – while

       addressing a related issue concerning whether Berry, who was convicted of

       attempted murder, had successfully raised an insanity defense at trial –

       acknowledged that voluntary intoxication is not a recognized defense. At

       Berry’s bench trial for attempted murder for striking another person in the head

       with a claw hammer, evidence was presented that Berry began abusing alcohol

       at age nine and became a daily drinker during high school. Id. at 36. He also

       used marijuana, cocaine, methamphetamine, LSD, mushrooms and ecstasy,

       and although at some point he stopped using drugs, he continued drinking

       alcohol. Id. He had been hospitalized multiple times for symptoms related to

       drug and alcohol abuse and bipolar disorder. Id. Berry pursued an insanity

       defense, but the trial court rejected it, finding, among other things,




       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016   Page 12 of 15
                Given the Defendant’s longstanding and chronic alcoholism
                coupled with heavy drinking on the weekend preceding the
                assault on [the morning of the incident], the Court concludes that
                these symptoms were brought on by the Defendant’s voluntary abuse of
                alcohol, rather than the result of Bipolar Disorder or other mental
                disease or defect.


       Id. at 39 (emphasis added). The court of appeals reversed, finding that the trial

       court erroneously rejected Berry’s insanity defense because Berry’s case fit

       within the doctrine of “settled insanity.”11 Id. at 37.


[18]   On transfer, our Supreme Court addressed the “murky” “intersection of

       voluntary intoxication and insanity,” and held that “[u]ltimately, it is for the

       trier of fact to determine whether the accused’s conduct was the result of a

       diseased mind—regardless of the source of the disease—or was the result of

       voluntary intoxication.” Id. at 43. The Berry Court concluded that, given the

       highly deferential standard of review and the evidence presented, it was within

       the trial court’s discretion to find that Berry’s behavior was caused by the

       voluntary abuse of alcohol and not a mental disease or defect as defined in

       Indiana’s insanity statute. Id. at 44. In its analysis, the Court recognized – on

       two occasions – that temporary mental incapacity produced by voluntary

       intoxication “‘is no legal excuse for, or defense to, a crime.’” Id. at 38 (quoting

       Jackson v State, 273 Ind. 49, 52, 402 N.E.2d 947, 949 (1980)), and at 42. It




       11
         Indiana recognizes situations “where the ingestion of intoxicants, though voluntary, has been abused to the
       point that it produced mental disease,” which is referred to as “settled” or “fixed” insanity. Berry v. State, 969
       N.E.2d 35, 42 (Ind. 2012).

       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                        Page 13 of 15
       further expressly noted the codification of this principle in Indiana Code section

       35-41-2-5, the voluntary intoxication statute, stating that intoxication is not a

       defense in a prosecution for an offense and may not be taken into consideration

       if determining the existence of a mental state that is an element of the offense,

       unless the defendant meets the requirements of involuntary intoxication. Id. at

       38 n.1. Even though Berry addressed the insanity defense and whether the

       defendant had successfully proven it, and thus it is not squarely on point with

       the present case, we nevertheless find the Berry Court’s acknowledgement of the

       voluntary intoxication statute to be relevant and insightful as to its view of the

       voluntary intoxication statute and, particularly, that statute’s application to

       attempted murder.12


[19]   Given that the Indiana legislature has not expressly identified attempted murder

       as an exception to the law negating voluntary intoxication as a defense, and our

       Supreme Court has not expressed an indication that any such exception exists,

       we decline Thomas’s invitation to create one. Final Instruction No. 28 was a




       12
          A colleague on this court also has recognized, in an appeal from an attempted murder conviction, that
       voluntary intoxication is not a defense. In Collier v. State, 846 N.E.2d 340 (Ind. Ct. App. 2006), trans. denied, a
       majority of this court reversed a defendant’s attempted murder conviction because, after taking box cutters,
       an ice pick and binoculars, and parking his vehicle at his estranged wife’s place of employment to wait for her
       to exit, he fell asleep. The Collier court determined that his conduct did not constitute a substantial step
       toward the commission of the crime of murder, but was instead mere preparation. Id. at 342, 350-51. Judge
       Barnes dissented, finding that the evidence presented was sufficient to allow a reasonable jury to find that
       Collier had taken a substantial step toward the commission of murder and that to conclude otherwise
       infringed on the prosecutor’s charging discretion and the jury’s exclusive province to weigh the evidence. Id.
       at 354. In his dissent, Judge Barnes opined that the fact that Collier was “passed out asleep” when police
       arrived should not disqualify his criminal intent, noting, “Collier does not claim he was involuntarily
       intoxicated, and voluntary intoxication is no longer a defense in Indiana to a criminal charge.” Id. at 353 n.2
       (emphasis added).

       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                        Page 14 of 15
       correct statement of the law, and Thomas has not established that the trial court

       committed fundamental error when it instructed the jury.13


[20]   Affirmed.


[21]   May, J., and Crone, J., concur.




       13
          The State alternatively argues that “[e]ven if voluntary intoxication was a permitted defense in Indiana, . . .
       there was no evidence to support that [Thomas] was so intoxicated that he could not form the requisite
       intent[,]” as there was no evidence regarding the time and amount of consumption nor what types of
       alcoholic beverages were consumed. Appellant’s Br. at 21, 23. Because we find that under current Indiana
       law voluntary intoxication is not a defense to “an offense,” including attempted murder, we do not reach this
       argument.

       Court of Appeals of Indiana | Opinion 84A01-1602-CR-235 | September 28, 2016                        Page 15 of 15
