MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                     FILED
this Memorandum Decision shall not be
                                                                       Mar 25 2020, 6:35 am
regarded as precedent or cited before any
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
Bradley Keffer                                           Curtis T. Hill, Jr.
Keffer Hirschauer LLP                                    Attorney General of Indiana
Indianapolis, Indiana
                                                         Tyler G. Banks
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Bryan Williams,                                          March 25, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-862
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Shatrese Flowers,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G02-1710-MR-39179



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020                  Page 1 of 20
[1]   Bryan Williams (“Williams”) appeals his conviction by jury of murder.1 He

      argues that the trial court abused its discretion when it: (1) denied his motion

      for a continuance; (2) denied his motion for a mistrial; and (3) refused to give

      the jury his tendered lesser-included offense instructions. Concluding that the

      trial court did not abuse its discretion, we affirm the trial court’s judgment.

[2]   We affirm.


                                                    Issues
                 1.       Whether the trial court abused its discretion when it
                          denied Williams’ motion for a continuance.

                 2.       Whether the trial court abused its discretion when it
                          denied Williams’ motion for a mistrial.

                 3.       Whether the trial court abused its discretion when it
                          refused to give the jury Williams’ tendered lesser-included
                          offense instructions.

                                                     Facts
[3]   The facts most favorable to the verdict reveal that on December 24, 2016, forty-

      three-year-old Williams and his long-time friend, forty-two-year-old Gerald

      Edwards (“Edwards”), went to Williams’ sister’s apartment in Noblesville.

      Williams and Edwards, who are both black, were intoxicated when they left the

      apartment at 9:25 p.m. in Williams’ 2010 white Cadillac. As Williams left the

      apartment complex, he turned left onto State Road 38. A nearby business’




      1
          IND. CODE § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 2 of 20
      security camera captured an image of Williams’ Cadillac entering a roundabout

      on State Road 38 at approximately 9:30 p.m. Immediately thereafter, Williams

      reached the intersection of State Roads 38 and 32.

[4]   A few minutes later, Angela (“Angela”) and Corey Graff were approaching the

      intersection of State Roads 38 and 32 from the east. Angela noticed “an older

      model white Cadillac” parked on the side of the road. (Tr. Vol. 3 at 151). She

      also noticed two black men fighting on the opposite side of the road. According

      to Angela, “one guy was lying down on the ground . . . on his side and there

      was another guy standing on top of him hitting him.” (Tr. Vol. 3 at 153).

      There were no other vehicles or people in the area. Angela called 911 to report

      what she had seen. While she was making the call, Angela saw the two men

      stand up and walk towards the Cadillac.

[5]   Noblesville Police Department Officers were dispatched to the scene and found

      a baseball cap, a ring, a bracelet, a charm, and drops of blood on the road near

      the intersection of State Roads 38 and 32. An officer took the items to the

      Noblesville Police Department property room and logged them in. DNA

      testing revealed that the DNA profile of the blood drops matched Williams’

      DNA profile. In addition, DNA profiles of skin cell samples taken from the

      baseball cap, the ring, and the bracelet matched Edwards’ DNA profile. The

      charm was not tested for DNA.

[6]   In the meantime, Williams drove to a nearby neighborhood in the City of

      Lawrence. He eventually called 911 and told the dispatcher that Edwards was


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 3 of 20
      not breathing. When emergency officials arrived at the scene, Edwards was

      dead. He had been stabbed nine times in his chest, back, and arm. The force

      used to inflict the wounds punctured his liver and his lungs and fractured one of

      his ribs. Williams had a contusion on the back of his head and a lacerated

      finger that was dripping blood. Officers subsequently found a knife, which

      contained Williams’ DNA on the handle, in a nearby yard. A City of

      Lawrence Police Department officer collected the knife and checked it in to the

      City of Lawrence Property Room (“the property room”).

[7]   In a police statement immediately following Edwards’ death, Williams told

      City of Lawrence Police Department Captain Mark Osborn (“Captain

      Osborn”) that when he left his sister’s apartment in Noblesville, he had turned

      right onto State Road 38 and then left onto State Road 37. According to

      Williams, several white men in a dark truck with bright LED headlights had

      begun following his car. Williams explained that when he had turned left onto

      126th Street, the truck had continued to follow him until he had stopped just

      west of Cumberland Road. Williams stated that he had attempted to wave the

      truck around him, but Edwards had jumped out of the Cadillac and had run

      over to the truck. Williams further stated that Edwards had become involved in

      a fight with a white man with a beard who had jumped out of the truck.

      According to Williams, when he had attempted to assist Edwards, another of

      the truck’s occupants had hit Williams in the head. Williams further explained

      that he and Edwards had gotten back into the Cadillac and had driven away.




      Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 4 of 20
      According to Williams, it was only later that he had discovered that Edwards

      had been stabbed.

[8]   Later that night, a police officer and Williams drove the route that Williams

      claimed he and Edwards had taken. Williams told the officer to stop where he

      claimed the fight had occurred on 126th Street. However, the officer found no

      evidence of a fight at that location. The following day, police officers blocked

      off 126th Street from State Road 37 to Cumberland Road in an attempt to find

      evidence of the fight. The officers found nothing. In addition, they learned that

      at the time Williams claimed that the fight had occurred, 126th Street had been

      backed up with traffic because of a popular Christmas light display. None of

      the officers that had been directing traffic at the light display had seen a fight on

      126th Street that night.

[9]   Police officers arrested Williams in October 2017. During a police interview

      with Williams at the time of his arrest, Captain Osborn suggested that Williams

      and Edwards had become involved in a verbal dispute in the car. According to

      Captain Osborn, Williams had stopped the car near the intersection of State

      Roads 38 and 32, and Edwards had gotten out. Captain Osborn speculated that

      at some point, the two men had become involved in a physical altercation,

      which Angela had witnessed. Captain Osborn further suggested that when

      Edwards had Williams down on the ground, Williams had pulled out a knife

      and had stabbed Edwards nine times. Thereafter, according to Captain Osborn,

      Williams had driven around the City of Lawrence neighborhood until Edwards

      had died from his injuries and had then called 911. Williams denied the

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 5 of 20
       captain’s version of events and maintained his story that he and Edwards had

       been attacked by white men in a dark truck. Later in the interview, Williams

       conceded that since he had been intoxicated, he could have been mistaken

       about the location of the altercation with the men in the truck.

[10]   The State charged Williams with murder the following day. The charging

       information alleged that “[o]n or about December 24, 2016, BRYAN

       WILLIAMS did knowingly or intentionally kill another human being, to-wit:

       Gerald Edwards.” (App. Vol. 2 at 33).

[11]   In November 2017, the State filed a notice of discovery compliance stating that

       it had sent Williams several Marion County Crime Lab reports, including the

       DNA analyst’s initial report. The DNA analyst’s second report was sent to

       Williams in April 2018. At a final pre-trial conference in December 2018,

       Williams told the trial court that he was prepared for the trial that was

       scheduled to begin later that month. The December 2018 trial was

       subsequently continued to March 2019 because of court congestion.

[12]   In February 2019, Williams filed a motion to continue the March 2019 trial so

       that he could “request that the DNA recovered from the alleged murder

       weapon be retested by an independent lab.” (App. Vol. 2 at 134). The motion

       acknowledged that the trial had already been continued four times, once by the

       State, twice by Williams, and once due to court congestion. However, the

       motion further explained that the independent lab could not complete the

       testing before the March 2019 trial. The trial court denied the motion.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 6 of 20
[13]   At a pre-trial hearing ten days before the March 2019 trial, Williams asked the

       trial court to reconsider its denial of his motion to continue. The trial court

       explained its denial as follows: “This case has some age, and this case has

       previously been set and I looked at the history in this case[.] I believe [this case

       has also been] congested. So, it has some age. And so because of the age that

       is why the court denied the request to continue.” (Tr. Vol. 2 at 8-9). Although

       the trial court denied the motion to continue, it issued an order authorizing the

       retesting of the DNA recovered from the handle of the knife. After the trial

       court issued this order, it was discovered that the lab’s previous testing had

       depleted the DNA sample taken from the knife and that there was no DNA

       available to retest.

[14]   The five-day trial began as scheduled on March 4, 2019. At the end of the third

       day of trial, Captain Osborn testified that the Noblesville Police Department

       had released to him, on December 26, 2016, the evidence found near the

       intersection of State Roads 38 and 32. This evidence, which included the hat,

       the bracelet, the ring, the charm, and blood samples taken from the road, had

       been placed in unsealed envelopes. Captain Osborn testified that he had sealed

       the envelopes with the City of Lawrence’s evidence tape and checked them into

       the property room. According to Captain Osborn, the only people who had

       access to the property room were the property room attendant, Elizabeth

       Pierson (“Pierson”); the Captain who oversaw her; and the individual in charge

       of keys in the controller’s office. Captain Osborn further explained that it was

       Pierson’s responsibility to take the evidence to the Marion County Crime Lab


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 7 of 20
       for testing and then to pick it back up and return the items to the property room

       after the testing had been completed.

[15]   At the beginning of the fourth day of trial, Pierson testified that she had

       previously worked in the property room and had transported sealed envelopes

       containing evidence in the case to the crime lab for testing. She testified that

       she had transported some of the envelopes to the crime lab in December 2016

       and had picked them up in March 2017. She had also transported some of the

       envelopes to the crime lab in May 2017 and had picked them up in July 2017.

[16]   During a break in trial that afternoon, defense counsel told the trial court that a

       retired City of Lawrence police officer had contacted him that day. The officer

       told counsel that Pierson had been terminated from the City of Lawrence in

       January 2018 for being intoxicated on the job and that there were issues related

       to her mishandling evidence in the property room. Defense counsel asked for

       the opportunity to cross-examine Pierson about the allegations and for a

       mistrial.

[17]   The State responded that it had learned late the previous night that Pierson no

       longer worked in the property room because there had been an issue with her

       drinking on the job. However, the State claimed that it was not aware of any

       issue regarding Pierson mishandling evidence. In addition, the State claimed

       that Captain Osborn had told it that there had been an audit of the property

       room but that nothing had been out of order. The State also pointed out that

       there had been no indication that Pierson had tampered with the evidence in


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 8 of 20
       this case. Rather, the State noted that Captain Osborn had sealed the envelopes

       and “[t]he only thing that [Pierson] did in this entire thing was literally drive the

       items from Lawrence to the Marion County Crime Lab to be tested.” (Tr. Vol.

       5 at 168).

[18]   The trial court told the parties that it would send the jurors to lunch and allow

       the parties time to research the issue. Following the break, the parties returned

       to the courtroom for a hearing outside the presence of the jury. At that hearing,

       City of Lawrence Police Department Captain of Professional Standards Erika

       Schneider (“Captain Schneider”) testified that Pierson had come to work

       intoxicated in January 2018. Pierson had been immediately suspended and had

       never returned to work. Captain Schneider further testified that Pierson had

       not handled any evidence in the property room that day. The captain also

       explained that there had been five audits in the property room since May 2017,

       and that no issues with the evidence had been discovered during the audits.

       City of Lawrence Police Department Captain of Operations Timothy Steele

       also testified that Pierson had not handled any evidence in the property room

       the afternoon that she had been intoxicated.

[19]   At the end of the hearing, Williams asked the court to declare a mistrial because

       he had not been aware of the circumstances of Pierson’s termination and he had

       had no opportunity to cross examine her with respect to her credibility. The

       State responded that Williams had not been placed in grave peril. Specifically,

       the State pointed out that the incident with Pierson had happened in January

       2018, six months after she had last handled the evidence in this case. There had

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 9 of 20
       been no evidence presented that Pierson had been impaired or had mishandled

       evidence in January, March, May or July 2017 when she had transported the

       evidence to and from the crime lab.

[20]   The trial court denied Williams’ motion for a mistrial but allowed him to

       question Pierson outside the presence of the jury. Pierson explained that before

       the incident in January 2018, she had been dealing with personal issues for two

       to three weeks. She thought she might have gone to work drunk or hungover

       “a few times, but not as significant as it was that time.” (Tr. Vol. 5 at 208).

       The night before the January 2018 incident, she had drunk alcohol throughout

       the night without sleeping. She had also taken a double dose of her prescription

       anti-anxiety medication as well as her son’s ADHD medication. Pierson

       further explained that she had not been drinking and had not been hungover in

       May 2017 or July 2017 when she had transported the evidence in Williams’

       case to the crime lab and then back to the property room. She also testified that

       she had never tampered with or mishandled evidence while working for the

       Lawrence Police Department and that she specifically had not tampered with or

       mishandled the evidence in this case.

[21]   Thereafter, Williams made an oral motion to suppress any evidence that

       Pierson “would have touched or been involved in in the chain of custody.” (Tr.

       Vol. 5 at 221). Assuming that motion was denied, Williams asked the trial

       court to allow him to question Pierson in front of the jury about her termination

       and inquire about exact dates that she had come to work after consuming

       alcohol the night before.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 10 of 20
[22]   The trial court agreed to allow Williams to question Pierson in front of the jury.

       Pierson testified that she had been terminated because she was intoxicated at

       work in January 2018. She also testified that she not been intoxicated at work

       on any of the dates that she had transported the evidence in Williams’ case to

       the crime lab.

[23]   Williams did not testify at trial. However, the jury watched a video of

       Williams’ October 2017 interview with Captain Osborn.

[24]   Following the presentation of evidence, Williams tendered to the trial court

       lesser-included offense instructions for battery, reckless homicide, voluntary

       manslaughter, and involuntary manslaughter as well as a self-defense

       instruction. The State objected to all the instructions, and the trial court refused

       to give the lesser-included offense instructions. The trial court did, however,

       give the self-defense instruction.

[25]   The jury convicted Williams of murder, and the trial court sentenced him to

       fifty-eight (58) years in the Department of Correction. Williams now appeals

       his conviction.


                                                   Decision
       1. Motion for a Continuance

[26]   Williams first argues that “the trial court abused its discretion by failing to grant

       Williams a reasonable continuance and Williams was prejudiced as a result.”

       (Williams’ Br. 22). Specifically, he contends that the trial court should have


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 11 of 20
       granted his motion for a continuance so that he could retest the DNA recovered

       from the knife handle.

[27]   The denial of a non-statutory request for a continuance is committed to the trial

       court’s discretion.2 Schmid v. State, 804 N.E.2d 174, 177 (Ind. Ct. App. 2004),

       trans. denied. An abuse of discretion occurs when the ruling is against the logic

       and effect of the facts and circumstances before the court. Tharpe v. State, 955

       N.E.2d 836, 843 (Ind. Ct. App. 2011), trans. denied. Under this standard, this

       Court will only consider the evidence favorable to the trial court’s ruling and

       the reasonable inferences to be drawn therefrom. Kelley v. State, 825 N.E.2d

       420, 424 (Ind. Ct. App. 2005).

[28]   We further note that continuances to allow more time for trial preparation are

       generally disfavored in criminal cases. Id. The appellant must overcome a

       strong presumption that the trial court properly exercised its discretion. Evans v.

       State, 855 N.E.2d 378, 386 (Ind. Ct. App. 2006), trans. denied. Additionally, the

       appellant must make a specific showing of how he was prejudiced as a result of

       the trial court’s denial of his motion. Id. at 386-87.

[29]   Here, our review of the evidence reveals that the State sent Williams the DNA

       analyst’s first report in November 2017 and her second report in April 2018.




       2
        A “defendant is statutorily entitled to a continuance where there is an ‘absence of material evidence, absence of a
       material witness, or illness of the defendant, and the specially enumerated statutory criteria are satisfied.’” Gibson v.
       State, 43 N.E.3d 231, 236 (Ind. 2015) (quoting Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995)) (citing IND.
       CODE § 35-36-7-1)). Here, Williams makes no claim that he was statutorily entitled to a continuance.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020                             Page 12 of 20
       Further, in December 2018, Williams told the trial court that he was prepared

       for the trial that was scheduled later that month. Two months later, Williams

       filed a motion for a continuance so that he could retest the DNA found on the

       murder weapon. The trial court denied the motion based on the age of the case,

       which had already been continued four times, once by the State, twice by

       Williams, and once due to court congestion. Based on these facts and

       circumstances, the trial court did not abuse its discretion in denying Williams

       motion.

[30]   We further note that Williams cannot make a specific showing of prejudice.

       Specifically, after the trial court denied the motion, it was discovered that the

       lab’s previous testing had depleted the DNA sample taken from the knife, and

       that there was no DNA available to retest. We find no error.


       2. Motion for a Mistrial

[31]   Williams also argues that the trial court abused its discretion when it denied his

       motion for a mistrial. The trial court is best situated to decide whether to grant

       or deny a motion for a mistrial because it is in the best position to assess the

       impact of an event on the jury. Myers v. State, 887 N.E.2d 170, 189 (Ind. Ct.

       App. 2008), trans. denied. Declaring a mistrial is a drastic remedy and will occur

       only if there is no other remedy. Id. Denial of a motion for a mistrial will be

       reversed only upon a showing of an abuse of discretion. Id. The defendant

       must demonstrate that he was placed in a position of grave peril to which he




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 13 of 20
       should not have been subjected and that no other action by the trial court could

       have remedied the perilous situation. Id.

[32]   Williams contends that he was entitled to a mistrial because the prosecutor

       engaged in misconduct. We review a claim of prosecutorial misconduct in two

       steps. Booker v. State, 773 N.E.2d 814, 817 (Ind. 2000). First, we determine

       whether the prosecutor engaged in misconduct. Id. Then we determine

       whether the misconduct placed a defendant in a position of grave peril to which

       he should not have been subjected. Id. The gravity of the peril is measured by

       the probable persuasive effect of the misconduct on the jury’s decision rather

       than the degree of impropriety of the conduct. Ryan v. State, 9 N.E.3d 663, 667

       (Ind. 2014).3

[33]   Here, Williams claims that the prosecutor engaged in misconduct when she

       failed to tell him that Pierson had been terminated from her employment in

       January 2018 after she went to work intoxicated. Even if the prosecutor had

       engaged in misconduct, Williams was not placed in grave peril. Specifically,

       our review of the evidence reveals that the trial court allowed Williams to

       question witnesses in a hearing outside the presence of the jury and to question




       3
          Typically, to preserve a claim of prosecutorial misconduct, the defendant must request an admonishment
       to the jury at the time the misconduct occurs. Jerden v. State, 37 N.E.3d 494, 498 (Ind. Ct. App. 2015).
       Failure to do so results in waiver of the issue on appeal and requires the defendant to establish not only the
       grounds for prosecutorial misconduct but also that the prosecutorial misconduct constituted fundamental
       error. Id. Here, where Williams’ allegation of misconduct did not occur in front of the jury, the
       admonishment requirement was not practical. We therefore proceed directly to the substance of his claim.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020                     Page 14 of 20
       Pierson in front of the jury. Pierson testified that one day, six months after she

       had handled the sealed evidence in this case, she had gone to work intoxicated.

       According to Pierson, she had done nothing more than transport the sealed

       evidence in this case back and forth from the property room to the lab. She also

       testified that she had neither tampered with nor mishandled the evidence in this

       case. Further, there is no evidence to the contrary. After hearing this

       testimony, the trial court determined that a mistrial was not warranted. We

       find no abuse of the trial court’s discretion.4


       3. Lesser-Included Offense Jury Instructions

[34]   Lastly, Williams argues that the trial court abused its discretion when it denied

       his tendered lesser-included offense instructions for reckless homicide,

       voluntary manslaughter, and involuntary manslaughter. In Wright v. State, 658

       N.E.2d 563, 566 (Ind. 1995), the Indiana Supreme Court set forth a three-part

       test that trial courts should perform when called upon by a party to instruct the

       jury on a lesser-included offense to the crime charged. First, the trial court must

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




       4
         Williams also argues that the trial court should have granted his motion for a mistrial “or a more
       meaningful remedy” because the State committed a discovery violation when it failed to advise him that
       Pierson had been terminated from her employment after she went to work intoxicated. (Williams’ Br. at 31).
       Trial courts are given wide discretionary latitude in discovery matters and their rulings will be given
       deference on appeal. Williams v. State, 714 N.E.2d 644, 649 (Ind. 1999). The remedy for a discovery
       violation for an untimely disclosure is a continuance, and Williams failed to ask for one. Further, absent
       clear error and resulting prejudice, the trial court's determination of violations and sanctions will be affirmed.
       Id. Based on Pierson’s testimony, the trial court determined that a mistrial was not warranted. We find no
       abuse of the trial court’s discretion.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020                       Page 15 of 20
       alleged lesser-included offense to determine if the alleged lesser-included offense

       is inherently included in the crime charged. Id. Second, if the 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 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 from the lesser offense and if, in view of the this

       dispute, a jury could conclude that the lesser offense was committed but not the

       greater. Id. It is reversible error for a trial court not to give a requested

       instruction on inherently or factually included lesser offenses if there is such an

       evidentiary dispute. Id. We now apply this framework to the tendered lesser-

       included offense instructions in this case.


       A.      Reckless Homicide

[35]   Reckless homicide is an inherently included lesser offense of murder. Id. The

       only element distinguishing the two offenses is the defendant’s state of mind.

       Id. Reckless homicide occurs when the defendant “recklessly” kills another

       human being. IND. CODE § 35-42-1-5. Reckless conduct is action taken in

       plain, conscious, and unjustifiable disregard of harm that might result. IND.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 16 of 20
       CODE § 35-41-2-2(c). In addition, the disregard involves a substantial deviation

       from acceptable standards of conduct. Id.

[36]   Murder, on the other hand, occurs when the killing is done “knowingly” or

       “intentionally.” IND. CODE § 35-42-1-1. A person engages in conduct

       “knowingly” if the person is aware of a high probability that he is doing so.

       IND. CODE § 35-41-2-2(b). Accordingly, Williams was entitled to an instruction

       on reckless homicide if there was a serious evidentiary dispute permitting the

       jury to find that he recklessly but not knowingly killed Edwards. See McEwen v.

       State, 695 N.E.2d 79, 85 (Ind. 1998).

[37]   Here, our review of the evidence reveals that Williams stabbed Edwards in the

       chest nine times with enough force to puncture his liver and lung and to break a

       rib. Stabbing a victim multiple times in the chest is evidence of an awareness of

       a high probability that the victim will be killed. See id. (explaining that “an

       assault . . . with a knife or similar sharp object – particularly in the chest or head

       region – rarely occurs without awareness of a high probability that death will

       result”). Based on this evidence, there was no serious evidentiary dispute

       permitting the jury to find that Williams recklessly, but not knowingly, killed

       Edwards. See id. Accordingly, the trial court did not abuse its discretion when

       it refused to give the jury Williams’ tendered instruction on the lesser-included

       offense of reckless homicide.


       B.      Voluntary Manslaughter




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 17 of 20
[38]   Voluntary manslaughter is a lesser-included offense of murder, differing only in

       the presence of sudden heat, which is a mitigating factor. Watts v. State, 885

       N.E.2d 1228, 1231 (Ind. 2008). Sudden heat is characterized as anger, rage,

       resentment, or terror sufficient to obscure the reason of an ordinary person,

       preventing deliberation and premeditation, excluding malice, and rendering a

       person incapable of cool reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind.

       2001). The crime of voluntary manslaughter thus “involves an ‘impetus to kill’

       which arises ‘suddenly.’” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct.

       App. 2010) (quoting Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997)), trans.

       denied. An instruction on voluntary manslaughter is supported if there exists

       evidence of sufficient provocation to induce passion that renders a reasonable

       person incapable of cool reflection. Dearman, 743 N.E.2d at 760 .

[39]   Because the distinguishing feature between the two offenses is the presence of

       sudden heat, Williams would only be entitled to an instruction on voluntary

       manslaughter if there was sufficient evidence of sudden heat for the jury to

       conclude that voluntary manslaughter was committed but not murder. See

       Anderson v. State, 681 N.E.2d 703, 710 (Ind.1997). However, our review of the

       record reveals no such evidence. Rather, the only evidence surrounding the

       altercation between the two men is that they fought at the side of the road, and

       Williams stabbed Edwards nine times. Accordingly, Williams was not entitled

       to an instruction on voluntary manslaughter, and the trial court did not err in

       refusing to give one.


       C.      Involuntary Manslaughter

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 18 of 20
[40]   Involuntary manslaughter is not an inherently included lesser offense of

       murder. Norris v. State, 943 N.E.2d 362, 368 (Ind. Ct. App. 2011), trans. denied.

       Murder and involuntary manslaughter are distinguished by the defendant’s

       intent. Wilson v. State, 765 N.E.2d 1265, 1271 (Ind. 2002). Murder requires an

       intent to kill, whereas involuntary manslaughter requires an intent to batter.

       Evans v. State, 727 N.E.2d 1072, 1081 (Ind. 2000). Involuntary manslaughter is

       a factually lesser-included offense if the charging information alleges that a

       battery accomplished the killing. Norris, 943 N.E.2d at 368.

[41]   Here, the charging information alleges that “[o]n or about December 24, 2016,

       BRYAN WILLIAMS did knowingly or intentionally kill another human being,

       to-wit: Gerald Edwards.” (App. Vol. 2 at 33). Because the charging

       information did not allege a battery, involuntary manslaughter is not a factually

       lesser-included offense of murder in this case. See Champlain v. State, 681

       N.E.2d 696, 702 (Ind. 1997). Therefore, the trial court did not err in refusing to

       give an involuntary murder instruction.

[42]   We further note that even if the charging information had supported the

       instruction, the facts of the case do not. Specifically, Williams stabbed Edwards

       nine times with enough force to puncture his liver and lung and to break a rib.

       He then drove around a northeast side Indianapolis neighborhood until

       Edwards died before he called 911. The intent to kill can be inferred from the

       use of a deadly weapon in a manner likely to cause death or serious bodily

       injury. Mauricio v. State, 683 N.E.2d 1329, 1331 (Ind. Ct. App. 1997). The

       manner in which this crime was committed leads only to the inference of an

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 19 of 20
       intent to kill. See id. Accordingly, the trial court did not abuse its discretion in

       refusing to give Williams’ tendered involuntary manslaughter instruction.

[43]   Affirmed.


       Robb, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-862 | March 25, 2020   Page 20 of 20
