MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                  FILED
this Memorandum Decision shall not be                              May 26 2016, 8:53 am
regarded as precedent or cited before any
                                                                        CLERK
court except for the purpose of establishing                        Indiana Supreme Court
                                                                       Court of Appeals
the defense of res judicata, collateral                                  and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Darren Bedwell                                          Gregory F. Zoeller
Marion County Public Defender                           Attorney General of Indiana
Appellate Division
Indianapolis, Indiana                                   Katherine Modesitt Cooper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Cortez Jones,                                           May 26, 2016
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A04-1506-CR-695
        v.                                              Appeal from the Marion Superior
                                                        Court
State of Indiana,                                       The Honorable Grant Hawkins,
Appellee-Plaintiff.                                     Judge
                                                        Trial Court Cause No.
                                                        49G05-1308-MR-55492



May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016           Page 1 of 9
[1]   Cortez Jones appeals his conviction of murder. 1 He argues the trial court erred

      in declining to instruct the jury on reckless homicide 2 as a lesser included

      offense. We affirm.


                                      Facts and Procedural History
[2]   In August 2013, Reginald Fagan lived with his girlfriend, Raven Sullivan, and

      their two children in an apartment in Indianapolis. Anthony Kimmons,

      Sullivan’s brother, also lived with them. Fagan had become acquainted with

      Jones in the apartment complex that summer.


[3]   Around 1:45 p.m. on August 20, 2013, Fagan and Kimmons were sitting on the

      stairs outside their apartment after Sullivan went to work. A woman named

      Keisha, who lived across the street, yelled for Fagan to come over. Fagan

      ignored Keisha and instead went to sit in his car in the parking lot, where he

      began looking at paperwork. Kimmons remained on the stairs.


[4]   Fagan looked up and saw Jones come around the side of the apartment building

      and shoot at the stairs where Fagan had been sitting with Kimmons. Kimmons

      was still there and, as he stood up, Jones shot him. Kimmons stepped toward

      the apartment, but then ran in another direction before collapsing. Fagan got

      out of his car and ran away. Jones chased him and fired shots at him.




      1
          Ind. Code § 35-42-1-1(1).
      2
          Ind. Code § 35-42-1-5.


      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016   Page 2 of 9
[5]   Dorenda Rogers was in an apartment at the complex and heard the gunfire.

      She looked out the window and saw Jones shooting at Fagan in the parking lot.

      She stepped out of her apartment as Fagan ran past. She saw Jones chasing and

      shooting at Fagan. Jones ran “right past” Rogers as she stood on the sidewalk,

      so she “was able to get a good look at him.” (Tr. at 43.) Fagan jumped into the

      retention pond behind the apartment complex to avoid the gunfire, and Jones

      fled.


[6]   Indianapolis Metropolitan Police Department (IMPD) Officer Madeline

      Lothamer was patrolling the area at the time and heard a report of shots fired.

      When she arrived at the apartment complex one minute later, bystanders

      pointed her toward Kimmons, who was lying on the ground. She was unable

      to find a pulse on Kimmons. Then she heard people screaming that someone

      was drowning in the pond. Officer Lothamer went over to the pond and saw

      Fagan, who could not swim. She went to the north end of the pond, and Fagan

      was able to maneuver his way toward her. Officer Lothamer helped Fagan out

      of the pond. EMS arrived on the scene and took Fagan to the hospital.


[7]   Rogers described the shooter to the police and gave a statement to IMPD

      Detective Leslie VanBuskirk. Detective VanBuskirk showed Rogers a six-photo

      array. Rogers circled Jones’ photograph, signed her name, and wrote “90%

      sure” beside the photo. (State’s Ex. 4.)


[8]   IMPD Detective Charles Benner visited Fagan at the hospital three times that

      day. During the first visit, as Fagan was drifting in and out of consciousness, he


      Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016   Page 3 of 9
       identified the shooter as “Hakim,” (Tr. at 256), but during a second visit, Fagan

       told Detective Benner the shooter was “Cortez” or “C-Dog.” (Id. at 246.)

       During the third visit, Detective Benner showed Fagan a six photo array, and

       Fagan circled Jones’ picture, signed his name, and wrote “120% positive”

       beside it. (State’s Ex. 3.)


[9]    Dr. Thomas Sozio, a forensic pathologist, conducted Kimmons’ autopsy. Dr.

       Sozio determined Kimmons died from a single gunshot to the left arm that

       entered the chest, perforated the right and left lower lung lobes, and transected

       the inferior vena cava. The wound caused extensive internal bleeding. Dr.

       Sozio recovered the bullet, which had not exited Kimmons’ body. Dr. Sozio

       determined the death was a homicide.


[10]   The day after the shooting, IMPD Detective Gregory Scott located Jones at the

       home of his ex-girlfriend, Stacee Smith. Detective Scott executed a search

       warrant and, in Smith’s bedroom, discovered a shoebox containing a revolver,

       five spent cartridge cases, live ammunition, and a knit cap. The revolver was

       wrapped in a yellow washcloth saturated with rubbing alcohol, and the revolver

       and washcloth were inside a plastic bag. Firearms examiner Michael Putzek

       examined the five fired casings and determined that they were fired by the

       revolver found in the shoebox. Puztek also testified the bullet recovered from

       Kimmons’ body was fired from the same revolver and was the same brand and

       type as the live ammunition found with the revolver.




       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016   Page 4 of 9
[11]   The State charged Jones with Kimmons’ murder and the attempted murder of

       Fagan. 3 After the evidence was presented, Jones tendered two instructions on

       reckless homicide 4 and requested they be given to the jury. The court found the

       evidence did not support a reckless homicide instruction and declined Jones’

       tendered instructions. A jury found Jones guilty as charged.


                                           Discussion and Decision
[12]   The trial court did not abuse its discretion by declining to instruct the jury on

       reckless homicide as a lesser included offense of murder, as there was no serious

       evidentiary dispute regarding Jones’ state of mind when he shot Kimmons. 5




       3
        Ind. Code §§ 35-42-1-1; 35-41-5-1. The State also charged Jones with being a serious violent felon in
       possession of a firearm, see Ind. Code § 35-47-4-5, and requested his sentence be enhanced for use of a firearm
       during a felony causing death. See Ind. Code § 35-50-2-11. After the jury found Jones guilty of murder and
       attempted murder, the State moved to have the additional charges dismissed, and the court granted that
       motion.
       4
           The first tendered instruction defined reckless homicide:

                  The crime of reckless homicide is defined by law as follows:
                  A person who recklessly kills another human being commits reckless homicide, a Class C
                  felony.
                  Before you may convict the Defendant, the State must have proved each of the following
                  beyond a reasonable doubt:
                           1. The Defendant, Cortez Jones
                           2. Recklessly
                           3. Killed
                           4. Anthony Kimmons
       (App. at 203.) The second tendered instruction defined the word “recklessly:”
                  A person engages in conduct “recklessly” if he/she 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.
       (Id. at 204.)
       5
         Jones also asks us to “reconsider precedent and grant defendants the unfettered right to have the jury
       instructed on inherently included lesser offenses.” (Br. of Appellant at 6.) It is not our role to “reconsider or
       declare invalid decisions of our supreme court.” Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App.
       2005) (holding Indiana Supreme Court precedent is binding on appellate courts until it is changed by that

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016                     Page 5 of 9
       “The manner of instructing a jury is left to the sound discretion of the trial

       court.” Albores v. State, 987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied.

       When a defendant requests an instruction on a lesser-included offense, the court

       first must determine “whether the lesser offense is either inherently or factually

       included within the crime charged.” Lane v. State, 997 N.E.2d 83, 87 (Ind. Ct.

       App. 2013), trans. denied. Reckless homicide is inherently included in murder.

       Id. at 87-88. Thus, we move to the next step of the analysis, which requires

       determining “‘whether the evidence provided by both parties creates a serious

       evidentiary dispute about the element or elements [that] distinguish the greater

       from the lesser offense.’” Id. at 88 (quoting Young v. State, 699 N.E.2d 252, 255

       (Ind. 1998), reh’g denied).


[13]   The element that distinguishes murder and reckless homicide is the defendant’s

       mens rea at the time of the killing. Id. Reckless homicide occurs when a person

       “recklessly” kills another human being, Ind. Code § 35-42-1-5, and a person

       acts recklessly “if he engages in 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. In

       contrast, murder occurs when a person “knowingly” or “intentionally” 6 kills

       another human being. Ind. Code § 35-42-1-1(1). The State charged Jones with




       court or by legislative enactment). Jones’ request that we reconsider well-established precedent is thus
       inappropriate. See id. (declaring inappropriate a party’s request that we reconsider supreme court precedent).
       6
         A person engages in conduct “intentionally” if, when he engages in the conduct, it is his conscious objective
       to do so. Ind. Code § 35-41-2-2(a).

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016                  Page 6 of 9
       killing Kimmons only “knowingly.” (App. at 31.) A person engages in

       conduct “knowingly” if, when he engages in the conduct, he is aware of a high

       probability that he is doing so. Ind. Code § 35-41-2-2(b).


[14]   Thus, Jones was entitled to instructions on reckless homicide if the evidence

       created a serious evidentiary dispute about Jones’ mens rea. The trial court

       found no serious evidentiary dispute regarding whether Jones acted knowingly

       or recklessly when he shot Kimmons. “When an instruction is refused on

       grounds that a serious evidentiary dispute does not exist, we reverse only upon

       an abuse of discretion.” Lane, 997 N.E.2d at 88. “An abuse of discretion

       occurs when a decision is clearly against the logic and effect of the facts and

       circumstances before the court.” Id.


[15]   Jones argues the record contained evidence he shot recklessly because he “was

       firing wildly without a conscious purpose.” (Br. of Appellant at 14.) He directs

       us to a page of Fagan’s deposition, but nothing therein suggests Jones was firing

       “wildly” when he shot Kimmons. 7 Rather, Fagan stated:




       7
         Jones also directs us to Rogers’ testimony at “Tr. 481.” (Br. of Appellant at 14.) That transcript page
       contains trial counsel’s argument in support of the reckless homicide instructions. Trial counsel’s argument
       does not cite a specific page of Rogers’ testimony, and we will not search the record to find evidence to
       support Jones’ argument. See Thomas v. State, 965 N.E.2d 70, 77 n.2 (Ind. Ct. App. 2012) (“we will not
       search the record to find a basis for a party’s argument”), trans. denied. Not only did trial counsel’s argument
       not inform us where to find Rogers’ statements to support Jones’ argument, but trial counsel’s argument was
       qualified with the phrase “[i]f I recall correctly.” (Tr. at 481.) Waiver notwithstanding, Rogers testified she
       heard shots, looked out the window, and saw Jones shooting at Fagan as he ran away. We fail to see how
       any description Rogers may have given about the manner in which Jones was shooting as he chased Fagan
       could be relevant to Jones’ mens rea when he shot Kimmons at the stairway.



       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016                    Page 7 of 9
                . . . And as I look up, I seen somebody come off the side of the
                building and they shot at the stairs where I was sittin’ before, but
                I wasn’t there anymore. So that was two rounds, pow, pow, that
                missed. And then my brother stood up because he was still sittin’
                on the stairs and the whole shootin’ caught him off guard.


                As he stood up, I -- the -- the -- the person shot him in the arm.


       (Ex. Vol. at 121) (grammatical errors in original). Jones also did not direct us

       to legal authority supporting the proposition that firing a gun “wildly” is

       indicative of a reckless, rather than knowing, mens rea, and we accordingly find

       that argument waived. See Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015)

       (failure to support argument with appropriate citation to legal authority and

       record evidence waives argument for review).


[16]   Jones came around the side of the apartment building to the bottom of the stairs

       and began shooting directly at the stairs where Kimmons was sitting on the

       sixth step. Jones fired two shots that hit the stairs. Kimmons stood to flee the

       stairs, but Jones fired a third shot that went through Kimmons’ arm and lungs,

       causing internal bleeding that killed Kimmons.


[17]   Even if we assume for the sake of argument that Jones’ choice about where to

       begin shooting was random, 8 we still could not conclude his shooting at




       8
         This assumption finds little support in the record. Jones chased Fagan from his car to the retention pond,
       firing multiple shots at him along the way. Those facts suggest, and the jury found, that Jones intended to
       kill Fagan that day. See Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002) (“attempted murder requires a
       specific intent to kill, and is not supported by ‘knowing’ actions”). Yet Jones made no attempt to shoot

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016                  Page 8 of 9
       Kimmons, who was six steps up the stairway from Jones, was anything but a

       knowing killing. See also Pinkston v. State, 821 N.E.2d 830, 840 (Ind. Ct. App.

       2004) (shooting victim “while standing close to him” precludes inference that

       killing was reckless), trans. denied. There was no serious evidentiary dispute as

       to whether Jones recklessly or knowingly killed Kimmons. 9 Therefore, the trial

       court did not err in declining Jones’ tendered instructions on reckless homicide.

       See id. (court did not abuse discretion in refusing instruction on reckless

       homicide as a lesser included offense).


                                                      Conclusion
[18]   The trial court did not abuse its discretion in declining to instruct the jury on

       reckless homicide as a lesser included offense of murder because there was no

       serious evidentiary dispute regarding Jones’ mens rea when he shot at Kimmons.

       Accordingly, we affirm.


[19]   Affirmed.


       Najam, J., and Riley, J., concur.




       Rogers, who also saw him firing his gun. The jury could have inferred from those facts that Jones arrived at
       the scene intending to kill at least Fagan.
       If Jones killed Kimmons when he intended to kill Fagan, he would still be guilty of murder rather than
       reckless homicide. See White v. State, 638 N.E.2d 785, 786 (Ind. 1994) (“Under the doctrine of transferred
       intent, when a person deliberately attempts to kill another but in the process kills a third person, his intent to
       kill is transferred and he may be found guilty of the murder of the person who was killed.”).
       9
         Because there was no serious evidentiary dispute, we need not address Jones’ assertion the trial court
       erroneously found his tendered instructions were not in proper form.

       Court of Appeals of Indiana | Memorandum Decision 49A04-1506-CR-695| May 26, 2016                      Page 9 of 9
