
ATTORNEYS FOR APPELLANT                 ATTORNEYS FOR APPELLEE

Susan K. Carpenter                      Karen M. Freeman-Wilson
Public Defender of Indiana        Attorney General of Indiana

J. Michael Sauer                  Eileen Euzen
Deputy Public Defender            Deputy Attorney General
Indianapolis, Indiana             Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



JACK R. WADSWORTH, JR.,                 )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  No. 42S00-9909-CR-490
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )










                    APPEAL FROM THE KNOX SUPERIOR COURT I
                   The Honorable W. Timothy Crowley, Judge
                         Cause No. 42D01-9901-CF-001


                                July 17, 2001

SHEPARD, Chief Justice.


      A jury convicted appellant Jack Wadsworth of murder and burglary.   He
now appeals these convictions, asserting that the trial court erred when  it
refused  his  reckless  homicide  instruction.   He  also  claims  that  the
evidence was not sufficient to prove the  “breaking”  element  of  burglary.
We affirm.






                        Facts and Procedural History


      On December 16,  1998,  Beth  Geyer,  Jeff  Davis  and  Jesse  Ennsman
burglarized Floyd  Wampler’s  home,  located  on  a  farm  in  Knox  County.
Wampler kept a large amount of cash on him, and several guns  in  his  home.
Davis and Ennsman searched the home for these items and found a few guns.

      On January 7, 1999, Graydon June Goodwin was  house-sitting  Wampler’s
home while Wampler was in  the  hospital  recovering  from  a  stroke.   Two
neighbors, Eddie Westfall and Ed Schriefer, arrived  at  Wampler’s  home  to
check on Goodwin and found him lying on the floor inside the home.   Goodwin
died from blood loss caused by a gunshot wound to the facial regions of  the
head.

      Westfall and Schriefer noticed that the front door was ajar  and  that
the side entrance that visitors always used was locked.  (R.  at  762,  836-
38, 1130, 1143.)  Detective Dave Anderson of the Indiana  State  Police  did
not observe any signs of forced entry in any of the doors or  windows.   (R.
at 143.)

      On January 10, 1999, Geyer anonymously called the police and  informed
them that she heard  Jack  Wadsworth  and  Davis  discuss  “going  back  and
finishing the job and then they’d have lots  of  money  and  other  things.”
(R. at 1166-68, 1172-74, 1205-06.)  Two days later, in  a  taped  statement,
Wadsworth said that he and Davis went to Wampler’s home because  Davis  said
that they could get some money there. (Supp. R.  at  68,  75,  89,  92,  94,
102.)  Wadsworth said that he and Davis first tried to get in  the  basement
window. (Supp. R. at 101-03.)   Wadsworth explained that  Goodwin  let  them
in the front door after they told him that they were cold and needed to  use
the bathroom.  (Supp. R. at 67-69, 73, 99, 101-03.)

      Wadsworth said that he  went  to  the  bathroom  where  he  found  and
examined a gun.  (Supp. R.  at  67,  69.)   He  pulled  the  bolt  back  and
discovered that the gun  was  loaded.   (Supp.  R.  at  69,  90.)   When  he
replaced the gun, it began to tip over so he picked it up again.  (Supp.  R.
at 70, 90.)  After opening the bathroom door, he says he pointed the gun  at
the window and accidentally fired the gun at Goodwin coming  around  to  the
bathroom.  (Supp. R. at 66-67, 70-72, 91, 95.)  The  bullet  struck  Goodwin
in the head.  (Supp. R. at 67, 77-78, 95; R. at 1071.)

      Wadsworth and Davis took several  guns,  phones  and  rings  from  the
house.  Wadsworth later told his fiancé that he shot Goodwin.

      The State charged Wadsworth  with  murder,  burglary  and  theft.   At
trial, the  court  denied  Wadsworth’s  tendered  instruction  for  reckless
homicide as a lesser included offense to murder.  The jury  returned  guilty
verdicts on all counts.  The trial court sentenced Wadsworth  to  sixty-five
years for murder, to be served consecutively with his  concurrent  sentences
of fifteen years for burglary and three years for theft.


                             I. Jury Instruction


      Wadsworth asserts that the trial  court  erred  when  it  refused  his
tendered instruction on reckless homicide as a lesser  included  offense  of
murder.  We disagree.

      When a  defendant  requests  an  instruction  for  a  lesser  included
offense of the charged crime, a trial court must follow the steps  laid  out
in Wright v. State, 658 N.E.2d 563 (Ind. 1995).  At issue in  this  case  is
the last of these steps: whether there  is  a  serious  evidentiary  dispute
regarding the element distinguishing the greater  offense  from  the  lesser
offense.  Id. at 567.  If such a dispute exists and “a jury  could  conclude
that the lesser offense was committed  but  not  the  greater,  then  it  is
reversible error for a trial court not to give an instruction . . . .”   Id.
 When, as in this case, “the record provides neither a  finding  that  there
is no serious evidentiary dispute nor a specific claim  from  the  defendant
as to the nature of that dispute, the standard of  review  is  an  abuse  of
discretion.”  Brown v. State, 703 N.E.2d 1010, 1020  (Ind. 1998).

       We  thus  examine  the  evidence  to  determine  whether  a   serious
evidentiary  dispute  existed  regarding   Wadsworth’s   shooting   Goodwin.
Wadsworth asserts that because “he was handling a loaded gun, with which  he
was not familiar, inside a small house with other persons present,  late  at
night,” a jury could have concluded that  his  action  was  reckless  rather
than knowing.  (Appellant’s Br. at 10.)

      A person acts “‘knowingly’ if, when he engages in the conduct,  he  is
aware of a high probability that he is doing so,”  whereas,  a  person  acts
“‘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 Ann. §  35-41-2-2(b),(c)(West 1998).

      In his confession, Wadsworth stated that he  discovered  a  gun  while
using Wampler’s bathroom.  After opening the door of the bathroom, he  fired
the gun causing a  bullet  to  penetrate  Goodwin’s  face.   Other  evidence
revealed that this gun required a great deal of trigger  pressure  to  fire.
(R. at 1072, 1140-41, 1333-34.)  Moreover, a forensic pathologist  testified
that Goodwin likely was shot at close range.  (R. at 1071-72.)

      From this evidence, we think the trial court was warranted in  finding
no serious evidentiary dispute about the  state  of  Wadsworth’s  knowledge.
Wadsworth must have known that firing directly at a  person  at  such  close
range is highly probable to result in death.   See  Sanders  v.  State,  704
N.E.2d  119,  121-23  (Ind.  1999)(no  serious  evidentiary  dispute   where
defendant killed victim by firing handgun at close range); Owens  v.  State,
544 N.E.2d 1375, 1377 (Ind. 1989)(firing gun in direction of  individual  is
substantial evidence from which jury may infer intent to kill).


      The trial court did not abuse its discretion in  refusing  Wadsworth’s
reckless homicide instruction.


                         II. Sufficiency of Evidence


      Wadsworth next asserts  that  the  evidence  presented  at  trial  was
insufficient to convict him  of  burglary.   He  maintains  that  the  State
failed to prove the occurrence of a “breaking,” as required in the crime  of
burglary.


      When  reviewing  a  conviction  for  the sufficiency of the
evidence, we do not  reweigh  the  evidence  or  judge  the  credibility  of
witnesses.  Baker v. State, 273 Ind. 64, 402 N.E.2d  951  (1980).   Instead,
we look to the evidence most  favorable  to  the  verdict  and  all  of  the
reasonable inferences that evidence provides to determine whether  there  is
substantial evidence of probative value to support the judgment.  Id.  If  a
reasonable trier of fact could have found  the  defendant  guilty  beyond  a
reasonable doubt, we will  affirm  the  trial  court’s  decision.   Case  v.
State, 458 N.E.2d 223 (Ind. 1984).


     To convict Wadsworth of burglary, as charged, the evidence must  prove
that he did knowingly break and enter into Wampler’s home  with  intent  to
commit a felony of theft in it.  See  Ind.  Code  Ann.  §  35-43-2-1  (West
1998).   The “breaking” element may be proven  entirely  by  circumstantial
evidence.  McCovens v. State, 539 N.E.2d 26 (Ind. 1989).


     Wadsworth asserts that “Goodwin had let him  and  Davis  in  the  front
door, because they were cold and needed to use the bathroom.”  (Appellant’s
Br. at 12.)  He supports this contention with the fact that Wampler’s  home
showed  no  signs  of  forced  entry.   (Id.)   We  recently  examined  the
sufficiency of the “breaking” evidence with regard to these same  facts  in
Davis v. State, 743 N.E.2d 751 (Ind. 2001).


     In Davis, Wadsworth’s partner-in-crime also asserted that  evidence  of
a “breaking” was insufficient where there were no signs  of  forced  entry.
Id. at 753.  Davis stated that he and Wadsworth “scheme[d] to  get  Goodwin
to open an outer door to the house and  allow  one  of  them  to  sneak  in
without having to break in.”  Id. at 754.  We held there, as  we  do  here,
that “the State presented circumstantial evidence that  Goodwin  would  not
have permitted [the defendant] to enter Wampler’s home.” Id. at 754.

      Goodwin stayed at Wampler’s home to guard  against  a  burglary  while
Wampler was in the hospital recovering  from  a  stroke.   Wadsworth  admits
that he and Davis tried to enter the home through a basement  window  before
approaching the front door of the home.  Goodwin’s body was discovered  near
the couch where he normally slept with a gun next to him. (R. at  839,  878,
State’s Exh.  18.)   The  door  that  Goodwin  used  to  let  visitors  into
Wampler’s home was locked, and the front door was ajar.

      As we said in Davis, “[T]his evidence allowed a  reasonable  inference
that [the defendant’s]  entry  was  unauthorized.   Moreover,  we  think  it
implausible that a man occupying a home solely to  guard  against  entry  of
potential burglars would willingly let two strangers  in  the  front  door.”
Davis, 743 N.E.2d at 754.  See Utley v. State, 589 N.E.2d 232  (Ind.  1992),
cert. denied, 506 U.S. 1058 (1993)(husband’s testimony that  doors  to  home
were locked when he left and that wife  would  not  open  door  to  stranger
provided inference that force was  used).    Wadsworth’s  claim  presents  a
close question, but we conclude the evidence was sufficient to  convict  him
of burglary.





                                 Conclusion

      We affirm the judgment of the trial court.


Sullivan, and Rucker, JJ., concur.
Dickson and Boehm, JJ., concur as to Part I and dissent as to    Part II.


