MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                               FILED
regarded as precedent or cited before any                                       Jul 10 2019, 9:13 am

court except for the purpose of establishing                                        CLERK
                                                                                Indiana Supreme Court
the defense of res judicata, collateral                                            Court of Appeals
                                                                                     and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Matthew D. Anglemeyer                                     Curtis T. Hill, Jr.
Indianapolis, Indiana                                     Attorney General of Indiana

                                                          Caryn N. Szyper
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Rebecca Lawson,                                           July 10, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2425
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Marc T.
Appellee-Plaintiff                                        Rothenberg, Judge
                                                          Trial Court Cause No.
                                                          49G02-1602-MR-6182



Altice, Judge.


                                          Case Summary



Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019                           Page 1 of 14
[1]   Following a jury trial, Rebecca Lawson was convicted of murder, a felony, and

      attempted murder, a Level 1 felony, and was sentenced to an aggregate term of

      eighty-five years of imprisonment. Lawson presents two issues for our review:


              1. Did the trial court abuse its discretion in refusing her tendered
              jury instruction on self-defense?


              2. Did the trial court abuse its discretion in refusing to instruct
              the jury on battery with a deadly weapon as a lesser included
              offense of attempted murder?


[2]   We affirm.


                                       Facts & Procedural History


[3]   Patrick Brown and Cecelia Land met in 2014 and began dating. Early in their

      relationship, Land noted that Brown had Lawson’s contact information saved

      on his phone, and Brown explained that Lawson was a coworker. At that time,

      Brown did not tell Land that he had a prior romantic relationship with Lawson.

      Late one night, Lawson called Brown’s phone and Land answered. When

      Lawson asked for Brown, Land told her that he was outside and identified

      herself as Brown’s girlfriend. She then gave the phone to Brown, who got mad

      and threw the phone, refusing to speak with Lawson.


[4]   In October or November 2014, Land and her children moved into Brown’s

      home in Indianapolis. At some point, Brown told Land about his romantic

      history with Lawson. Shortly after Land moved in, she saw that Lawson was

      calling Brown again. Land answered a call Lawson made to Brown’s phone

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 2 of 14
      and informed Lawson that she and Brown were “living together” and that “my

      children are here and if you don’t quit, I’m going to kick your [ass].” Transcript

      Vol. 2 at 40. Land never spoke to Lawson again.


[5]   Brown and Land lived together until December 2015, when Land ended the

      relationship and moved out. In February 2016, Brown contacted Land and the

      two reconnected. Land agreed to bring her children over to Brown’s home to

      eat pizza and play games.


[6]   Brown was expecting Land and her children to come to his house during the

      evening of February 12, 2016. Earlier that day, Brown and Lawson exchanged

      text messages. At 1:30 p.m., Lawson texted Brown “How’s your day going

      babe?” Exhibits at 182. Brown responded about forty minutes later with one

      word: “Cold.” Id. Lawson replied, “I’m waiting to see doc and get results” and

      Brown responded, “Fun.” Id. At 2:12 p.m., Lawson messaged Brown, “want

      to see you today if I can.” Id. Brown did not respond.


[7]   About three hours later, at 5:14 p.m., Lawson texted Brown again and asked if

      he was on his way home from work. Brown immediately responded “not yet”

      and asked Lawson “what’s up”. Id. Lawson responded, “seeing if I could

      come over and if you wanted dinner.” Id. At 5:16 p.m., Brown texted Lawson

      that he would be at work for awhile and would let her know when he got home.


[8]   Meanwhile, Land and her daughters arrived at Brown’s home around 6:00 p.m.

      At 6:26 p.m., Lawson sent Brown a text message with a question mark. At 6:44

      p.m., Brown responded, “still at work”. Id. at 183. Lawson immediately

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 3 of 14
      replied, “WTF tell them bye”. Id. When Brown did not respond, Lawson

      called him at 7:13 p.m. Four minutes later, Brown texted Lawson, “I will let u

      know f*ck”. Id. At 7:25 p.m., Lawson texted back, “Whatever. I’m being nice

      and you been a dick for a week. I don’t know what your problem is but I didn’t

      do anything to deserve f*cking attitude for wanting to see you and spend time

      with you”. Id. Brown did not respond. At 7:44 p.m., Lawson sent another text

      message, “yes no”. Id. Again, Brown did not respond. At 7:55 and 8:03 p.m.,

      Lawson called Brown, but he did not answer either call.


[9]   Lawson decided “something was up” so she drove to Brown’s house. Id. at

      194. When she saw Brown’s truck and Land’s car parked in the driveway, she

      pulled in. Brown came out and told her to leave. Lawson then drove to a

      Walgreens about a mile away and parked in the parking lot. At 8:11 p.m.

      Lawson texted Brown, “get her gone now” and “I’m waiting at Walgreens”.

      Id. at 183. She called Brown’s phone, but he did not answer. At 8:15 p.m.,

      Lawson texted, “I’ll come back. You need to respond”. Id. Four minutes

      later, Lawson called Brown again and when he did not answer, she sent

      another message, “This isn’t a joke!” Id. Lawson continued sending messages

      to Brown and calling his phone, but he did not respond or answer. At 8:28

      p.m. Lawson texted, “she gone????” and then proceeded to call Brown ten times

      in rapid succession. Id. At 8:35 p.m., Lawson texted Brown, “This isn’t a

      f*ckng game. Answer me!!!” Id. She called again at 8:36 p.m. Finally, at 8:37

      p.m., Lawson texted, “You know what f*ck it. You made your choice. I’m




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 4 of 14
       coming there getting my . . . gun and everything I dropped off with it and you

       can keep her.” Id. at 184.


[10]   Lawson parked in Brown’s driveway and then pulled a loaded handgun from

       her purse and put it on her lap. Brown came outside and again told her to

       leave. Lawson refused to leave until Brown returned a revolver that she had

       loaned to him.


[11]   In the meantime, Land opened the front door of the residence and asked Brown

       if he was alright. Brown yelled at Land to go back inside, and she complied. A

       few seconds later, believing that something was wrong, Land went outside and

       started walking toward the car. Land did not know who was in the car, but

       heard the occupant yelling at her that she “ha[d] a gun and a gun permit.”

       Transcript Vol. 2 at 44. Land responded that she “didn’t give a sh*t.” Id. at 54.


[12]   Land stopped in front of the car and heard Brown tell the driver to leave. Land

       started to realize what was going on and who was in the car. She started

       cursing at Brown and Lawson, and as she turned around to walk away, she

       heard Brown yell, “leave my property now, Becca, leave now.” Id. She also

       saw Brown reaching toward the driver’s window, which was partially open.

       Moments later, Lawson shot Brown in the chest and he fell to the ground.

       According to Lawson, Land was moving closer with her hands up in front of

       her chest and holding something in one hand. 1 Lawson “swung her arm over



       1
           The object in Land’s hand was later determined to be a cell phone.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 5 of 14
       and pointed towards [Land] and . . . shot” twice. Exhibits at 208. Land was

       shot in the jaw and between the eyes. Lawson dropped her gun on the front

       seat of her car as she got out to tend to Brown. She then called 911 and told the

       operator that she “just shot two people.” Id. at 209.


[13]   Land’s teenage daughter who was inside Brown’s house heard “a couple of

       loud noises” that she thought “was just the paintball gun.” Transcript Vol. 2 at

       62. She then went outside to investigate. She did not see anyone, but heard

       Brown yelling “call 911, find your mom.” Id. at 63. It was “really dark

       outside,” but as she looked around, she saw a woman standing over Brown and

       her mother lying on the ground and bleeding from her face. Id. at 63. She

       immediately called 911. Lawson never asked about Land’s condition.


[14]   Officer John Montgomery of the Indianapolis Metropolitan Police Department

       (IMPD), along with other IMPD officers, were dispatched at 8:47 p.m. in

       response to the 911 calls. When Officer Montgomery arrived at the scene he

       observed a light-colored SUV with its headlights on sitting in the driveway.

       Lawson was with Brown, who was unconscious and had a faint pulse. Land

       was lying on the ground and bleeding heavily from her head. Officer

       Montgomery asked for the identity of the shooter, and Lawson admitted, “I

       shot them.” Id. at 87. Lawson cooperated with Officer Montgomery as he

       placed her in handcuffs and turned her over to another officer to remove her

       from the scene. No weapons were found on or near Brown or Land.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 6 of 14
[15]   Brown was pronounced dead shortly thereafter. Land ultimately survived her

       injuries. She regained consciousness twelve days after the shooting. She

       underwent two surgeries to remove the bullets from her head, and her right eye

       was replaced with a prosthetic.


[16]   Lawson waived her Miranda rights and was interviewed by police later that

       night. Lawson told police that Brown demanded she leave his property, but

       that she refused until he returned her gun that she had left with him. Lawson

       also claimed that Brown saw the gun in her lap and that he reached into her car

       and tried to grab it. According to Lawson, she pulled the gun away and yelled,

       “don’t touch my gun”, and Brown responded back, yelling, “I’ll rip that mother

       f*cker out of your hand.” Exhibits at 204. As Lawson screamed at Brown to

       give her the gun she left with him, Brown reached through the open driver’s

       window and squeezed her chin and cheeks with one hand and told her to “shut

       the f*ck up”, which is when she fired her gun in Brown’s direction. Id. at 205.


[17]   Police questioned Lawson about why she did not just leave Brown’s property,

       and Lawson explained, “[t]hey were standing that close to the car I was in park

       and I had my gun in my hand and where my shifter is I would . . . there was no

       way for me to shift.” Id. When asked if she could have put the gun down in

       order to shift her car, she said “probably.” Id. She admitted that she had

       multiple opportunities to put the gun down and drive away.


[18]   On February 17, 2016, the State charged Lawson with murder, a felony, and

       attempted murder, a Level 1 felony. Lawson’s first jury trial was held on


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 7 of 14
       January 9-11, 2017. The jury found her guilty on both counts, and the trial

       court subsequently sentenced her to consecutive terms of fifty-five years and

       thirty years respectively. Lawson appealed, and in a memorandum decision,

       this court reversed her convictions and remanded for a new trial. Lawson v.

       State, 49A02-1703-CR-445 (Ind. Ct. App. Nov. 20, 2017) (concluding that trial

       court’s failure to instruct jury on self-defense denied Lawson fundamental due

       process and made a fair trial impossible).


[19]   Lawson was retried on August 27-29, 2018. At trial, Lawson requested that the

       jury be instructed to the effect that she did not give up her right to self-defense

       by trespassing, which instruction the trial court refused. Lawson also requested

       that the trial court instruct the jury on voluntary manslaughter as a lesser

       included offense of murder, and Level 5 felony battery with a deadly weapon as

       a lesser included offense of attempted murder. The trial court granted Lawson’s

       request with regard to the voluntary manslaughter instruction but refused to

       give the battery with a deadly weapon instruction. At the conclusion of the

       trial, the jury found Lawson guilty of murder and attempted murder. Lawson

       now appeals. Additional facts will be provided as necessary.


                                           Discussion & Decision


                                        1. Self-Defense Instruction


[20]   We review a trial court’s decision to give or refuse a tendered instruction for an

       abuse of discretion. Matheny v. State, 983 N.E.2d 672, 679 (Ind. Ct. App. 2013),

       trans. denied. In reviewing a trial court’s decision, “we consider (1) whether the

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 8 of 14
       instruction correctly states the law, (2) is supported by the evidence in the

       record, and (3) is not covered in substance by other instructions.” Munford v.

       State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). A defendant is entitled to a

       reversal if she affirmatively demonstrates that the instructional error prejudiced

       her substantial rights. Buckner v. State, 857 N.E.2d 1011, 1015 (Ind. Ct. App.

       2006).


[21]   In addition to the pattern jury instruction for self-defense, Lawson requested

       that the jury be instructed that “a person does not give up her right to self-

       defense by trespassing. An alleged trespasser may still use force against a

       landowner when acting in self-defense.” Transcript Vol. 2 at 235. As support for

       this instruction, Lawson directed the trial court to Lemon v. State, 868 N.E.2d

       1190 (Ind. Ct. App. 2007). During discussion with the court regarding the

       proposed instruction, Lawson indicated that she wanted the jury to be

       instructed with this language from Lemon:


                The simple act of trespass, without the threat of imminent
                violence or destruction of property, or actual violence or
                destruction of property on the part of the trespasser, does not
                sanction the use of unreasonable force by a landowner or his
                agent to terminate the trespass. Furthermore, an alleged
                trespasser does not give up her/his common law and statutory
                right to resist the use of unreasonable force by a landowner or
                her/his agent.


       868 N.E.2d at 1197. The State responded that such an instruction would

       confuse the jury and that it was not supported by the facts. The trial court

       reviewed the Lemon case and concluded that Lawson’s proposed instruction

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 9 of 14
       was not applicable because Lawson was not an alleged trespasser and she did

       not engage in the simple act of trespass without the threat of imminent violence.

       The court also determined that Lawson’s proposed instruction would have

       confused/mislead the jury. The court, however, permitted Lawson to quote

       some of the language from Lemon during closing argument.


[22]   It has been long held that the “mere fact that certain language or expression [is]

       used in the opinions of this Court to reach its final conclusion does not make it

       proper language for instructions to a jury.” Keller v. State, 47 N.E.3d 1205, 1209

       (Ind. 2016) (quoting Ludy v. State, 784 N.E.2d 459, 462 (Ind. 2003)). The

       Supreme Court explained that “[a]ppellate review of the sufficiency of the

       evidence . . . will ‘rarely, if ever,’ be an appropriate basis for a jury instruction,

       because the determination is fundamentally different.” Id.


[23]   The issue addressed by the court in Lemon was a challenge to the sufficiency of

       the evidence, and the result turned on the court’s conclusion that the evidence

       did not support a finding that the defendant committed breach of the peace and

       thus, there was no authority to effectuate a citizen’s arrest. The language

       Lawson selected for her proposed instruction summarized the Lemon court’s

       holding regarding the unique issues and claims presented therein under the lens

       of a sufficiency-of-the-evidence analysis. The circumstances in the present case

       are not even remotely similar to the unusual scenario presented in Lemon.

       Lawson’s proposed instruction containing the language from Lemon was not

       warranted in this case.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 10 of 14
[24]   We also agree that Lawson’s proposed instruction would have served only to

       confuse and/or mislead the jury as to the issues involved in the case. Lawson’s

       proposed instruction would have introduced the concept of trespassing into the

       self-defense analysis without defining that term.


                                    2. Battery with a Deadly Weapon


[25]   Lawson argues that the trial court abused its discretion in refusing her lesser

       included offense instruction for Level 5 felony battery with a deadly weapon.

       When called upon by a party to instruct a jury on a lesser included offense of

       the crime charged, a trial court must perform a three-step analysis. First, it

       must compare the statute defining the crime charged with the statute defining

       the alleged lesser included offense to determine if the alleged lesser included

       offense is inherently included in the crime charged. Wright v. State, 658 N.E.2d

       563, 566 (Ind. 1995). Second, if a trial court determines that an alleged lesser

       included offense is not inherently included in the crime charged under step one,

       then it must determine if the alleged lesser included offense is factually included

       in the crime charged. Id. at 567. If the alleged lesser included offense is neither

       inherently nor factually included in the crime charged, the trial court should not

       give an instruction on the alleged lesser included offense. Id. Third, if a trial

       court has determined that an alleged lesser included offense is either inherently

       or factually included in the crime charged, it must look at the evidence

       presented in the case by both parties to determine if there is a serious

       evidentiary dispute about the element or elements distinguishing the greater



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 11 of 14
       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. Id.


[26]   Where the trial court makes an express finding that there is no serious

       evidentiary dispute, the court’s decision is reviewed for an abuse of discretion.

       Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998). Here, the trial court found

       that there was a lack of a serious evidentiary dispute. We will therefore review

       the trial court’s refusal to give the instruction on battery by means of a deadly

       weapon for an abuse of discretion.


[27]   Battery with a deadly weapon is not an inherently included offense of attempted

       murder. See Leon v. State, 525 N.E.2d 331, 331 (Ind. 1988) (holding that

       “[b]ecause it is possible to attempt murder without touching the intended

       victim, battery is not inherently a lesser included offense of attempted murder).

       Battery, however, may be a lesser included offense of attempted murder if the

       charging information alleges a factual physical transgression against the victim

       so as to satisfy the touching element of battery. Wilson v. State, 697 N.E.2d 466,

       475 (Ind. 1998). The charging information in the present case provided:


               On or about February 12, 2016, REBECCA LAWSON did
               attempt to commit the crime of Murder, which is to intentionally
               kill another human being, namely: Cecelia Land, by engaging in
               conduct, that is: shooting a deadly weapon, that is: a handgun, at
               and against the person of Cecelia Land, with the specific intent to
               kill Cecelia Land, which conduct constituted a substantial step
               toward the commission of said crime of Murder.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 12 of 14
       Appellant’s Appendix Vol. II at 27. The parties agree that given the charging

       information, battery with a deadly weapon is a factually included offense of

       attempted murder. See Johnson v. State, 464 N.E.2d 1309 (Ind. 1984) (holding

       that battery was factually included in charged offense of attempted murder

       where charging information alleged the defendant knowingly or intentionally

       shot a round of live ammunition at the victim from a pistol and that the round

       of ammunition struck and wounded the victim); Stringer v. State, 690 N.E.2d

       788, 790 (Ind. Ct. App. 1998) (holding that battery was a factually included

       lesser offense of attempted murder because defendant was charged with

       “knowingly shooting at and against the body of” the victim).


[28]   Under the Wright test, however, an instruction permitting a verdict for a lesser

       included offense is appropriate only if there is a serious evidentiary dispute

       regarding Lawson’s mens rea, as this is the distinguishing element between

       battery with a deadly weapon and the charge of attempted murder. See Wilson,

       697 N.E.2d at 475 (noting that the distinguishing element between battery and

       attempted murder is intent).


[29]   In Wilson, the defendant was convicted of attempted murder and other offenses,

       and he appealed the trial court’s rejection of his tendered jury instruction

       identifying battery as a lesser included offense of attempted murder. The

       defendant argued that the circumstances of his shooting a gun across a bar in

       the direction of his soon-to-be-ex-wife’s boyfriend and striking him in the arm

       called into question whether he intended to kill or simply batter his victim. The

       Supreme Court found no evidence that Wilson intended only to wound his

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 13 of 14
       victim, stating “this Court has repeatedly stated that the use of a deadly weapon

       in a manner likely to cause death or great bodily harm is sufficient to show the

       requisite intent to kill.” Id. at 476. The Court concluded that Wilson’s act of

       shooting a handgun at his victim from across the bar constituted “use of a

       deadly weapon in a manner likely to cause death or great bodily harm.” Id.

       (quoting Harper v. State, 523 N.E.2d 1389,1391 (Ind. 1988)). The Court further

       concluded that Wilson’s claim that he intended only a “rude touching” when

       he pointed and fired the firearm at his victim “defies credulity.” Id.

       Accordingly, the Court held that the trial court did not abuse its discretion in

       refusing Wilson’s tendered battery instruction.


[30]   We reach the same conclusion. Here, Lawson had minutes earlier warned

       Land that she had a gun. Lawson was also clearly upset that Land was at

       Brown’s home. After shooting Brown in the chest, Lawson pointed her

       handgun at Land and fired, striking Land two times in the face. Based on these

       facts, there was no serious evidentiary dispute regarding Lawson’s intent in

       shooting Land. Thus, the trial court did not abuse its discretion in refusing

       Lawson’s tendered instruction on the lesser included offense of battery with a

       deadly weapon.


[31]   Judgment affirmed.


       Kirsch, J. and Vaidik, C.J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2425 | July 10, 2019   Page 14 of 14
