Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the
case.

ATTORNEY FOR APPELLANT:                       ATTORNEYS FOR APPELLEE:

BRIAN J. MAY                                  GREGORY F. ZOELLER
South Bend, Indiana                           Attorney General of Indiana

                                              RYAN D. JOHANNINGSMEIER
                                              Deputy Attorney General
                                              Indianapolis, Indiana

                                                                               FILED
                              IN THE                                        Feb 21 2012, 9:18 am

                    COURT OF APPEALS OF INDIANA                                     CLERK
                                                                                  of the supreme court,
                                                                                  court of appeals and
                                                                                         tax court



JOHN Q. LLOYD,                                )
                                              )
       Appellant-Defendant,                   )
                                              )
              vs.                             )        No. 71A05-1105-CR-270
                                              )
STATE OF INDIANA,                             )
                                              )
       Appellee-Plaintiff.                    )


                    APPEAL FROM THE ST. JOSEPH SUPERIOR COURT
                        The Honorable Jane Woodward Miller, Judge
                              Cause No. 71D01-1004-MR-2


                                   FEBRUARY 21, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

SULLIVAN, Senior Judge
         Appellant John Q. Lloyd appeals his conviction of murder, a felony. Ind. Code §

35-42-1-1 (2007). We affirm.

         On the night of July 18, 2000, Lloyd was riding in a car in South Bend. His

brother, Eric Johnson (“Eric”), was driving, and they were accompanied by their sister,

Latonia Johnson (“Latonia”), and Jamie McCoy. They stopped at a closed gas station,

and Eric and Lloyd went behind the building to urinate. At that time, Ed Dabros was

using a pay phone at the gas station. When Eric and Lloyd returned to the front of the gas

station, Dabros was sitting in his car and raised his hand in their direction. Eric was a

drug dealer and recognized the gesture as a request for drugs or for information about

drugs. Eric got into Dabros’ car, and Lloyd stood near the car by the driver’s side door.

Dabros asked Eric for powder cocaine, and Eric told him that he only sold crack cocaine.

Eric got out of Dabros’ car and walked away. As Dabros shifted his car into gear, Lloyd

shot Dabros in the back of his neck. Dabros’ car rolled forward and struck a gate.

Lloyd’s gunshot went through Dabros’ neck and cut his carotid artery, causing him to

bleed to death.

         Eric and Lloyd returned to Eric’s car, where Latonia and McCoy had been

waiting. Eric asked Lloyd, “[W]hat the f**k you do that for?” Tr. p. 467. Lloyd

responded that he thought Dabros “was trying to do something.” Id. Next, Eric drove to

Latonia’s house. He left Lloyd, Latonia, and McCoy at Latonia’s house and went to see a

friend, Rodney Mitchell. Eric and Mitchell came back to Latonia’s house and collected

Lloyd’s gun and clothes. They put the clothes in a trash can and threw the gun into a

river.

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        In 2005, Lloyd was incarcerated with Xavier McCaster. Lloyd told McCaster that

he and Eric had gone to the gas station to sell drugs to “a white junkie.” Id. at 440.

Lloyd further stated that he had shot “the junkie” in the head because the man had

“disrespected him.” Id. at 440-41.

        The State charged Lloyd with murder, felony murder, and dealing in cocaine. The

trial court dismissed the charge of dealing in cocaine prior to trial. A jury found Lloyd

guilty of murder and felony murder. The trial court dismissed the felony murder charge,

entered a judgment of conviction on the murder charge, and sentenced Lloyd accordingly.

This appeal followed.

        Lloyd raises two issues, which we restate as: (1) whether the trial court abused its

discretion by rejecting Lloyd’s tendered instruction on mental culpability;1 and (2)

whether the evidence is sufficient to sustain the conviction.

                                    I. JURY INSTRUCTION

        The manner of instructing the jury lies largely within the sound discretion of the

trial court, and we review the trial court’s decision only for an abuse of that discretion.

Boney v. State, 880 N.E.2d 279, 293 (Ind. Ct. App. 2008), trans. denied. In reviewing a

trial court’s decision to give or refuse tendered jury instructions, the appellate court

considers: (1) whether the instruction correctly states the law; (2) whether there is

evidence in the record to support the giving of the instruction; and (3) whether the




1
  The instruction differentiated between a “knowing” requirement for the defendant’s conduct, as opposed
to “recklessly” or “negligently.”
                                                   3
substance of the tendered instruction is covered by other instructions that are given.

Corbett v. State, 764 N.E.2d 622, 629 (Ind. 2002).

       In this case, Lloyd tendered, and the trial court rejected, a proposed Instruction

Number 3. That instruction provides:

              Knowingly is defined by statute as follows:
              A person engages in conduct “knowingly” if, when he engages in
       this conduct, he is aware of a high probability that he is doing so.
              The charge in this case alleges that the accused acted “knowingly.”
       “Knowingly” is not the same as “recklessly” or “negligently”. [sic] A
       person engages in conduct “recklessly” if he engages in the conduct in
       plain, conscious and unjustifiable disregard of harm that might result and
       the disregard involves a substantial deviation from acceptable standards of
       conduct. “Negligence [sic] is a failure to do what a reasonably careful and
       prudent person would have done under the same or like circumstances, or
       the doing of some thing which a reasonably careful and prudent [sic] would
       not have done under the same or like circumstances; in other words,
       negligence is the failure to exercise reasonable or ordinary care.
              Proof that the accused acted “recklessly” or “negligently” does not
       satisfy the State’s obligation to prove beyond a reasonable doubt that the
       accused acted “knowingly”. [sic]

Appellant’s App. p. 157.

       The trial court properly rejected Lloyd’s proposed instruction because the

substance of the instruction is covered by other instructions that the trial court gave to the

jury. The trial court informed the jury that the crime of murder includes a mental state of

“knowingly.”    Id. at 189.    In addition, the trial court read the jury a definition of

“knowingly” that is identical to the definition in Lloyd’s tendered instruction. Next, the

jury was instructed that the State was obligated to prove every element of the crime

beyond a reasonable doubt. Finally, the trial court instructed the jury on the crime of

reckless homicide as a lesser included offense of murder.


                                              4
       Lloyd notes that the trial court’s instructions did not address negligence. For

guidance on this point, we turn to our Supreme Court’s decision in Springer v. State, 798

N.E.2d 431 (Ind. 2003). In that case, Springer went to a house to confront a person who

had allegedly beaten Springer’s son the night before.        While he was at the house,

Springer fired a shot, which went through a wall and a refrigerator before striking the

victim in the chest. Springer was convicted of criminal recklessness. At trial, Springer

tendered to the trial court a jury instruction defining negligence. The trial court rejected

the negligence instruction, and our Supreme Court affirmed that decision. Our Supreme

Court noted that Springer’s main argument at trial was that his actions did not meet the

legal definition of recklessness.   Thus, Springer’s argument was a challenge to the

sufficiency of the evidence rather than “a legal defense.” Id. at 435. Our Supreme Court

concluded that the jury did not need to be instructed on negligence.

       In this case, as we discuss in more detail below, Lloyd contends that the State did

not prove that he knowingly shot Dabros because he believes that the evidence showed

that he shot Dabros accidentally. Thus, Lloyd is challenging the sufficiency of the

evidence rather than asserting a legal defense. In addition, Lloyd’s proposed definition of

negligence is nearly identical to the definition at issue in Springer.       Applying our

Supreme Court’s reasoning in Springer, we conclude that Lloyd was not entitled to a jury

instruction on negligence but was free to argue to the jury that the shooting was

accidental. Therefore, the trial court did not abuse its discretion by rejecting Lloyd’s

proposed Instruction Number 3.



                                             5
                          II. SUFFICIENCY OF THE EVIDENCE

      When an appellant challenges the sufficiency of the evidence supporting a

conviction, we do not reweigh the evidence or judge the credibility of the witnesses.

Joslyn v. State, 942 N.E.2d 809, 811 (Ind. 2011). We consider only the probative

evidence and reasonable inferences drawn from the evidence that support the verdict. Id.

We will affirm if the probative evidence and reasonable inferences drawn from the

evidence could have allowed a reasonable trier of fact to find the defendant guilty beyond

a reasonable doubt. Id.

      In order to convict Lloyd of murder, the State was required to prove beyond a

reasonable doubt that (1) Lloyd (2) knowingly or intentionally (3) killed (4) Ed Dabros.

Ind. Code § 35-42-1-1. Here, Lloyd does not dispute that he fired the gunshot that ended

Dabros’ life. Instead, he contends that there is insufficient evidence to prove that he

knowingly or intentionally killed Dabros.

      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) (1977).

Knowledge is a mental state of the actor and may be proved by circumstantial evidence

and inferred from the circumstances and facts of each case. Wilson v. State, 835 N.E.2d

1044, 1049 (Ind. Ct. App. 2005), trans. denied.

      In this case, Lloyd shot Dabros in the back of his neck, behind his left ear, at close

range. Without objection, McCoy testified that she heard Lloyd tell Eric he shot Dabros

because he thought Dabros “was trying to do something.” Tr. p. 467. In addition,

McCaster testified, also without objection, that Lloyd said that he shot Dabros because

                                            6
Dabros had disrespected him.      Both of these statements, although not identical, are

evidence that Lloyd knowingly or intentionally, rather than accidentally, shot Dabros.

Furthermore, Lloyd left Dabros to die after the shooting instead of attempting to aid him,

which, at least by inference, provides additional evidence that the shooting was not an

accident.

       Lloyd notes that Eric testified that the shooting was accidental. This is a request to

reweigh the evidence, which we cannot do. There is sufficient evidence to establish that

Lloyd knowingly or intentionally killed Dabros, and Lloyd’s challenge to the jury’s

verdict is without merit.

       For the reasons stated above, we affirm the judgment of the trial court.

       Affirmed.

NAJAM, J., and BAILEY, J., concur.




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