Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                        Sep 23 2014, 9:40 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

JEFFREY L. SANFORD                                 GREGORY F. ZOELLER
South Bend, Indiana                                Attorney General of Indiana

                                                   JOSEPH Y. HO
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

TORRENCE L. BELCHER,                               )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )        No. 71A03-1311-CR-461
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                            The Honorable J. Jerome Frese, Judge
                              Cause No. 71D03-1110-MR-10


                                       September 23, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                 STATEMENT OF THE CASE

          Torrence Belcher (“Belcher”) appeals his conviction for murder1 and challenges

the trial court’s refusal to instruct the jury on the lesser-included offense of reckless

homicide. Belcher argues that the trial court committed reversible error because there

was a serious evidentiary dispute regarding his culpability in the death of Jeremy Miller

(“Miller”). Concluding that no serious evidentiary dispute existed, we find that the trial

court did not abuse its discretion in refusing to instruct the jury on reckless homicide.

          We affirm.

                                             ISSUE

          Whether the trial court abused its discretion in refusing to instruct the jury
          on reckless homicide.

                                             FACTS

          On October 29, 2011, Antonio Pepper (“Pepper”) made plans with Brandon Jones

(“Jones”) to go to some Halloween parties. Jones drove his car to pick up Pepper, and

Belcher, who lived next door to Pepper, joined them. The trio began planning the

evening while drinking vodka in the car. Belcher told Pepper and Jones that he had a

handgun with him. Pepper and Jones told Belcher that they did not want anything to do

with the handgun. Belcher told them that he respected their concerns, but he insisted on

bringing the handgun. Later that evening, Miller joined the group.

          As the evening progressed, Pepper became concerned about Jones’s driving. The

men stopped at a liquor store to buy more alcohol, and Jones agreed to let someone else



1
    IND. CODE § 35-42-1-1.
                                                2
drive. Jones and Miller entered the store while Belcher and Pepper waited in the car.

Jones and Miller returned to the car with more vodka, and the men began to drink again.

The men then decided to go to the Blue Jeans bar in Mishawaka. At this time, Miller was

driving, Jones was sitting in the front-passenger seat, Pepper was sitting behind Miller,

and Belcher was sitting behind Jones. Belcher had a problem with the new seating

arrangement because he had paid for gas and wanted to sit in the front. Jones, however,

insisted on sitting in the front because he owned the car.

       As the car approached the Blue Jeans bar, Pepper and Jones heard a gunshot.

Pepper grabbed his ears and threw himself to the floor of the car. Jones looked over to

Miller and saw that the driver’s side window was shattered. Miller leaned forward and

put the car in park. Jones opened the door and crawled out of the vehicle. Ten to twenty

seconds after Pepper heard the first shot, he heard four or five more shots. Pepper waited

ten to fifteen more seconds, looked up, and saw that Jones was on the ground crying.

Miller was slumped over in the driver’s seat and did not respond to Pepper calling his

name. Pepper saw Belcher standing outside of the car holding his handgun. Belcher

looked towards the front of the car a few times and ran away. Pepper called 911, and the

officers came to the scene.

       Officer Christopher Boling (“Officer Boling”) approached Jones’s car and saw

Miller slumped over to the right. He checked for a pulse on Miller and found none.

Pepper told Officer Boling the direction Belcher had ran, and the officer requested that

other responding officers set up a perimeter.       Shortly thereafter, the officers found

Belcher still carrying his handgun, and arrested him.

                                             3
       On October 31, 2011, the State charged Belcher with murder. A jury trial began

on October 4, 2013. At trial, Dr. Joseph Prahlow (“Dr. Prahlow”) testified that Miller

had suffered five gunshot wounds to his head and neck and a sixth wound to his upper

back. Three of these wounds were from bullets that entered from the top of Miller’s head

through his brain and exited his chin or neck, causing lethal injuries. Dr. Prahlow

observed extensive gunpowder residue around most of the entrance wounds, indicating

that the gun was fired from close range.

       The parties stipulated that Belcher’s handgun was a Jimenez Arms 9mm Luger

caliber semiautomatic pistol and that the eight recovered spent shell casings were 9mm

caliber ammunition and fired from Belcher’s handgun. Officer Alex Arendt (“Officer

Arendt”) testified that a semiautomatic pistol, such as Belcher’s, required a pull of the

trigger for each shot. On cross-examination, Pepper and Jones testified that there was no

tension or hostility between anyone in the car. Belcher rested without presenting any

evidence.

       At the close of evidence, Belcher requested that the trial court instruct the jury on

reckless homicide as a lesser-included offense of murder. The trial court acknowledged

that reckless homicide is an included offense of murder but refused to give the instruction

because, in its view, there was no serious evidentiary dispute regarding whether Belcher

knowingly or recklessly killed Miller. The jury convicted Belcher, and the trial court

sentenced him to fifty-five (55) years in the Department of Correction. Belcher now he

appeals.



                                             4
                                        DECISION

       Belcher argues that the trial court abused its discretion in refusing to give his

proffered jury instruction for reckless homicide because there was a serious evidentiary

dispute regarding his culpability.

       When asked to instruct the jury on a lesser-included offense, trial courts are to

apply the test set forth by our Indiana Supreme Court in Wright v. State, 658 N.E.2d 563

(Ind. 1995). “First the trial court must determine whether the lesser offense is either

‘inherently’ or ‘factually’ included in the crime charged.” Champlain v. State, 681

N.E.2d 696, 699 (Ind. 1997) (citing Wright, 658 N.E.2d at 566-67). If an offense is either

“inherently” or “factually” included in the crime charged, the trial court must then

consider, based on the evidence presented by both parties, whether a serious evidentiary

dispute exists. Wright, 658 N.E.2d at 567. Our Supreme Court further explained as

follows:

       If there is a serious evidentiary dispute about the element or elements
       distinguishing the greater from the lesser offense and if, in view of this
       dispute, a jury could conclude that the lesser offense was committed but not
       the greater, then it is reversible error for a trial court not to give an
       instruction, when requested, on the inherently or factually included lesser
       offense. If the evidence does not support the giving of a requested
       instruction on an inherently or factually included lesser offense, then a trial
       court should not give the requested instruction.

Id. If a trial court makes a factual finding regarding the existence or lack of a “serious

evidentiary dispute,” we review that decision for an abuse of discretion. Champlain, 681

N.E.2d at 700. “If the trial court makes no ruling as to whether a serious evidentiary

dispute exists, Wright implicitly requires the reviewing court to make this determination


                                             5
de novo based on its review of the evidence.” Id. (citing Brown v. State, 659 N.E.2d 652,

656-67 (Ind. Ct. App. 1995), trans. denied).

          Belcher and the State agree that reckless homicide is an inherently included

offense of murder. See Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001). In fact,

the trial court heard arguments from Belcher and the State on whether a serious

evidentiary dispute existed concerning Belcher’s culpability. Specifically, the trial court

stated:

          On the reckless homicide . . . where is the conscious disregard? Where’s
          the dispute here about a conscious disregard? There is a gun where the
          trigger gets individually pulled. With one shot and a pause of four or five
          seconds and then more shots, one after the other. . . . I’m not going to give
          [the reckless homicide instruction.]

(Tr. 194). Because the trial court made a specific finding, we will review its denial of

Belcher’s proposed instruction for an abuse of discretion.

          In reviewing the trial court’s finding that a serious evidentiary dispute did not

exist, we look to the culpability required to be convicted of each of the charged offenses.

Reckless homicide occurs when one recklessly kills another, while murder occurs when

one knowingly or intentionally kills another. Compare IND. CODE § 35-42-1-5 with IND.

CODE § 35-42-2-1(1).         Reckless conduct is action taken in plain, conscious, and

unjustifiable disregard of harm that might result and the disregard involves a substantial

deviation from acceptable conduct. IND. CODE § 35-41-2-2(c). A person knowingly

engages in conduct if that person is aware of a high probability that he or she is doing so.

IND. CODE § 35-41-2-2(b). A person engages in conduct intentionally when it is the

conscious objective of the person to do so. IND. CODE § 35-41-2-2(a).

                                               6
        In this case, the evidence reveals that Belcher shot Miller six times in the head,

neck, and back at close range. The gun was fired at a range close enough to Miller that

gun powder residue and stippling were found on Miller’s body.2 Further, Pepper testified

that he heard a gunshot followed by a ten to twenty second pause and then four or five

more shots. Officer Arendt testified that the semiautomatic handgun used in Miller’s

killing required a separate pull of the trigger for each shot. This evidence strongly

indicates that Belcher knowingly or intentionally shot Miller.                      Belcher directs our

attention to Pepper and Jones’s testimony that there was no animosity between anyone in

the car. However, this evidence is more indicative of motive, which is not a relevant

consideration in this case. There is simply no evidence in the record creating a serious

dispute regarding Belcher’s culpability. Cf. Webb v. State, 963 N.E.2d 1103, 1108 (Ind.

2012) (serious evidentiary dispute existed where defendant immediately expressed

remorse and claimed an accident occurred where four people, including the defendant

and victim, played with, loaded, unloaded, and shot a handgun in the air). Accordingly,

we find no serious evidentiary dispute, and the trial court did not abuse its discretion in

refusing to instruct the jury on the lesser-included offense of reckless homicide.

        Affirmed.

FRIEDLANDER, J., and MATHIAS, J., concur.




2
 “The powder pattern of pistols, revolvers and rifles is a definite indication of the range at which the shot
was fired, from a minimum of ‘contact’ to a maximum of three feet.” 1 F. Lee Bailey & Henry Lee
Rothblatt, Crimes of Violence: Homicide and Assault § 187 (1973).
                                                     7
