MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jul 14 2020, 8:53 am
court except for the purpose of establishing                                        CLERK
the defense of res judicata, collateral                                         Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Timothy J. O’Connor                                       Curtis T. Hill, Jr.
O’Connor & Auersch                                        Attorney General of Indiana
Indianapolis, Indiana                                     Benjamin J. Shoptaw
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Alvin Perkins,                                            July 14, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2302
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Shatrese Flowers,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          49G02-1805-MR-17276



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020                           Page 1 of 6
[1]   Alvin Perkins appeals his conviction for murder. He raises one issue which we

      restate as whether the trial court abused its discretion by declining to give

      Perkins’s proposed instruction on reckless homicide as a lesser included offense

      of murder. We affirm.


                                      Facts and Procedural History

[2]   Perkins and his wife, Mona, had been married since the early 1980s. On the

      morning of May 26, 2018, they argued at their apartment. At some point

      during the argument, Mona picked up a lamp, unplugged it, and chased Perkins

      in their bedroom while carrying the lamp. According to Perkins’s statement to

      law enforcement, she chased him around, he “chased her back around,” and

      she “backed up.” State’s Exhibit No. 70 at 14. He retrieved a handgun case

      from behind a cabinet beside the bed and removed a holstered handgun.


[3]   Perkins shot Mona six times, firing the first shot when she was on the other side

      of the bed from him. Mona sustained two gunshot wounds on the left side of

      her back, as well as gunshot wounds on her left shoulder, chest, pelvis, and left

      leg, and she later died from her injuries.


[4]   Perkins returned the handgun to the case, called 911, and encountered and led

      the responding law enforcement to the apartment. Officers asked him what had

      happened, and he “stated that he had shot his wife,” “they had been arguing all

      night,” and “she had been nagging at him and he shot her.” Transcript Volume

      II at 94. Officers arrested Perkins, and he gave a statement in which he

      indicated he was trying to shoot the lamp.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020   Page 2 of 6
[5]   At Perkins’s jury trial for murder, the State submitted as exhibits the 911 call

      and statement Perkins gave to police; a computer diagram of the apartment

      scene detailing where evidence was recovered; and corresponding photographs

      of the bedroom, including of a lamp on the bed, the bedroom’s west wall and a

      cabinet to the left of the bed. The State presented the testimony of an officer

      who responded to the scene and indicated Mona was discovered on the “left

      hand side” of the bed “propped up between the wall and nightstand that was

      next to the bed” and that there was a significant amount of blood on her, her

      clothes, and the floor. Id. at 97. The officer further testified that Perkins did not

      ever ask about Mona or her condition, that she did not notice any blood, marks,

      or injuries on him, and that he never complained of any injuries. A forensic

      pathologist testified about the trajectory of the bullets in relation to Mona’s

      gunshot wounds and explained that the shots to her back had a trajectory of

      “left to right upward, upward and left to front.” Id. at 190. Perkins tendered a

      jury instruction on a lesser included offense of reckless homicide. The trial

      court denied the instruction, stated it did not believe the evidence supported a

      reckless homicide instruction, and provided an instruction on voluntary

      manslaughter over the State’s objection. The jury found Perkins guilty of

      murder.


                                                   Discussion

[6]   The issue is whether the trial court abused its discretion by declining to give

      Perkins’s proposed instruction on reckless homicide to the jury. We apply a

      three-step analysis in determining whether a defendant was entitled to an

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020   Page 3 of 6
      instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d 563, 566-

      567 (Ind. 1995). We must determine: (1) whether the lesser-included offense is

      inherently included in the crime charged; if not, (2) whether the lesser-included

      offense is factually included in the crime charged; and, if either, (3) whether there

      is a serious evidentiary dispute whereby the jury could conclude the lesser offense

      was committed but not the greater offense. Id. If the “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.” Id. at 567. When the trial court makes a

      finding that a serious evidentiary dispute does not exist, we will review that

      finding for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.

      1998).


[7]   Reckless homicide 1 is an inherently included lesser offense of murder, 2 as the

      only element distinguishing the two is the requisite culpability. See Miller v.

      State, 720 N.E.2d 696, 702 (Ind. 1999). A person engages in conduct

      “recklessly” if he engages in the conduct in plain, conscious, and unjustifiable

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

      deviation from acceptable standards of conduct. Ind. Code § 35-41-2-2(c) By

      contrast, a person engages in conduct “knowingly” if, when he engages in the




      1
          Ind. Code § 35-42-1-5.
      2
       Ind. Code § 35-42-1-1 provides that a person who knowingly or intentionally kills another human being
      commits murder.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020                  Page 4 of 6
      conduct, he is “aware of a high probability that he is doing so.” Ind. Code § 35-

      41-2-2(b).


[8]   Perkins disputes only his mens rea and argues evidence of his actions after the

      shooting demonstrates he did not intend to cause Mona’s death. He contends

      that, in both the 911 call and his statement, he reported she had brandished a

      lamp and threatened to strike him with it and he had shot at the lamp to cause

      her to drop it.


[9]   While Perkins’s account to police following the incident includes statements

      that he was “not thinking” that he was going to hit her as he was shooting at

      the lamp, it also includes his indications he and Mona “weren’t really like super

      fighting but she just chased [him] around with the lamp,” she “didn’t swing it

      at” him, and that “she brought [the lamp] down” and he was “still trying to

      shoot at” it. State’s Exhibit No. 70 at 5, 10. After he retrieved the handgun

      case from behind a cabinet beside the bed and removed a holstered handgun,

      Perkins fired six shots in Mona’s direction at close range, and all six shots hit

      her. In light of Mona’s gunshot injuries, including two on the left side of her

      back, and the record, we cannot say there was a serious evidentiary dispute that

      Perkins knowingly shot her, and we conclude the trial court did not abuse its

      discretion in declining to give the proposed instruction on reckless homicide.

      See Miller v. State, 720 N.E.2d 696, 703 (Ind. 1999) (no error in rejecting

      proposed jury instruction on reckless homicide as lesser included offense of

      murder; Miller shot at the victim, who was seated in a car, multiple times,

      demonstrating evidence of a knowing killing rather than a reckless killing);

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020   Page 5 of 6
       Sanders v. State, 704 N.E.2d 119, 122-123 (Ind. 1999) (holding that there was no

       serious evidentiary dispute that the defendant knowingly shot the victim

       because there was no evidence he was randomly shooting and he “must have

       known that firing directly at a person at such close range is highly probable to

       result in death”); cf. Young v. State, 699 N.E.2d 252, 256 (Ind. 1998) (serious

       evidentiary dispute regarding whether Young committed murder or reckless

       homicide when evidence suggested Young shot into a crowd of people and did

       not specifically aim at the victim).


[10]   We affirm Perkins’s conviction for murder.


[11]   Affirmed


       Najam, J., and Kirsch, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020   Page 6 of 6
