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:

MARK A. BATES                                    GREGORY F. ZOELLER
Lake County Appellate Public Defender            Attorney General of Indiana
Crown Point, Indiana
                                                 BRIAN REITZ
                                                 Deputy Attorney General

                                                                               FILED
                                                 Indianapolis, Indiana

                                                                           Dec 14 2012, 9:15 am

                              IN THE                                                CLERK
                                                                                  of the supreme court,

                    COURT OF APPEALS OF INDIANA                                   court of appeals and
                                                                                         tax court




BENITO D. LESIAK,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )        No. 45A03-1204-CR-183
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                      APPEAL FROM THE LAKE SUPERIOR COURT
                          The Honorable Salvador Vasquez, Judge
                              Cause No. 45G01-1108-MR-6



                                      December 14, 2012


                MEMORANDUM DECISION - NOT FOR PUBLICATION


NAJAM, Judge
                              STATEMENT OF THE CASE

         Benito Lesiak appeals his conviction for reckless homicide, a Class C felony,

following a jury trial. Lesiak presents two issues for our review:

         1.    Whether the trial court abused its discretion when it refused to tender
               a proffered jury instruction.

         2.    Whether the State presented sufficient evidence to support his
               conviction.

         We affirm.

                        FACTS AND PROCEDURAL HISTORY

         During the early morning hours of August 1, 2011, Lesiak and his live-in

boyfriend Scott Philips were arguing when Lesiak stabbed Philips in his abdomen.

Lesiak then called 911, reported the stabbing, and requested assistance. Hammond Police

Officer Stuart Hinson was the first on the scene, arriving five minutes after the 911 call.

Lesiak invited Officer Hinson inside the house and directed him to where Philips, gasping

for breath, was lying in a pool of blood. In response to questions by Officer Hinson,

Lesiak stated that he had stabbed Philips. Officer Hinson then called for an ambulance

and placed Lesiak in handcuffs.

         Philips was transported to a hospital, but he died within a few hours. An autopsy

later showed that Philips died as the result of a stab wound that was 5.5 inches deep. A

forensic pathologist determined that the wound was the result of a significant amount of

force.

         After his arrest, Lesiak told Hammond Police Detective-Sergeant Daniel Small

that he had been fighting with Philips the morning of the stabbing and that if he “had had


                                              2
a gun, [he] would have unloaded the entire clip.” Transcript at 574. The State charged

Lesiak with murder. At trial, Lesiak claimed that he had stabbed Philips in self-defense.

The State presented evidence supporting the murder charge, including the testimony of

Philips’ brother that during the course of several phone calls in early July 2011, Lesiak

had threatened to kill Philips. At the conclusion of the five-day trial, the jury found

Lesiak guilty of the lesser-included offense of reckless homicide, a Class C felony. The

trial court entered judgment accordingly and sentenced Lesiak to four years. This appeal

ensued.

                            DISCUSSION AND DECISION

                               Issue One: Jury Instruction

       Lesiak contends that the trial court abused its discretion when it did not give the

following proffered jury instruction:

       The defendant is not required to prove that the killing was accidental.
       Rather, the State has the burden of proving beyond a reasonable doubt that
       the killing was intentional or knowing and not accidental. If after
       considering all the evidence you have a reasonable doubt that the killing
       was intentional or knowing, then you must find the accused not guilty.

Appellant’s App. at 70. As we have discussed:

       “The purpose of a jury instruction ‘is to inform the jury of the law
       applicable to the facts without misleading the jury and to enable it to
       comprehend the case clearly and arrive at a just, fair, and correct verdict.’”
       Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001) (quoting Chandler v. State,
       581 N.E.2d 1233, 1236 (Ind. 1991)). Instruction of the jury is left to the
       sound judgment of the trial court and will not be disturbed absent an abuse
       of discretion. Schmidt v. State, 816 N.E.2d 925, 930 (Ind. Ct. App. 2004),
       trans. denied. Jury instructions are not to be considered in isolation, but as
       a whole and in reference to each other. Id. The instructions must be a
       complete, accurate statement of the law which will not confuse or mislead
       the jury. Id. at 930-31. Still, errors in the giving or refusing of instructions
       are harmless where a conviction is clearly sustained by the evidence and the
                                              3
       jury could not properly have found otherwise. Id. at 933 (citing Dill, 741
       N.E.2d at 1233).

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008). Further:

       In reviewing a challenge to a jury instruction, we consider: (1) whether the
       instruction is a correct statement of the law; (2) whether there was evidence
       in the record to support giving the instruction; and (3) whether the
       substance of the instruction is covered by other instructions given by the
       court.

Simpson v. State, 915 N.E.2d 511, 519 (Ind. Ct. App. 2009) (quotation omitted), trans.

denied.

       Lesiak asserts that “Indiana courts in the past have implicitly approved the giving

of accident instructions where the defendant has been charged with murder.” Brief of

Appellant at 10 (emphasis added). But none of the case law relied upon by Lesiak

includes express approval of the language used in his proffered instruction. Neither does

the case law support Lesiak’s contention on this issue, as our supreme court’s holdings in

the cited cases do not address the issue presented here. See Wrinkles v. State, 690

N.E.2d 1156 (Ind. 1997) (holding evidence did not support giving instruction on

accidental killing), cert. denied, 525 U.S. 861 (1998), superseded by statute on other

grounds; see also Davis v. State, 210 Ind. 550, 2 N.E.2d 983 (1936) (disapproving of jury

instruction suggesting that intention to kill could be inferred from the act of the killing

itself); Smith v. State, 198 Ind. 614, 154 N.E. 370 (1926) (holding defendant waived

issue for failure to proffer instruction on accidental killing). Thus, to the extent that

Lesiak contends that the proffered instruction is a correct statement of the law, Lesiak has

not directed us to case law to support that contention.



                                             4
       Further, whether the evidence at trial supported giving the instruction on

accidental killing is questionable given the evidence that Lesiak recklessly, knowingly, or

intentionally stabbed Philips, including: (1) Lesiak’s statement to Philips’ brother a few

weeks prior to the stabbing that Lesiak intended to kill Philips, and (2) Lesiak’s statement

to police that if he had had a gun on the day of the stabbing, he would have “unloaded the

entire clip.” Transcript at 574.

       Moreover, as the State points out, the substance of the proffered instruction is

covered by other instructions given by the court. In particular, the trial court instructed

the jury as follows:

       It is a fundamental concept in our law that the defendant comes into court
       presumed to be innocent of the charge, and this presumption remains
       throughout the trial of the case, until and unless it is overcome by
       competent proof of guilt beyond a reasonable doubt.
               Since the defendant is presumed to be innocent, he is not required to
       present any evidence to prove his innocence or to prove or explain
       anything. If at the conclusion of the trial there remains in your mind a
       reasonable doubt concerning the defendant’s guilt, you must find him not
       guilty.
                                             ***
       The burden is upon the State to prove beyond a reasonable doubt that the
       defendant is guilty of the crime charged. It is a strict and heavy burden.
       The evidence must overcome any reasonable doubt concerning the
       defendant’s guilt. . . .
               The State must prove each element of the crime charged by
       presenting evidence that firmly convinces each of you and leaves no
       reasonable doubt. The proof must be so convincing that you can rely and
       act upon it in this matter of the highest importance.
                                             ***
       The State has the burden of disproving the defense of self-defense beyond a
       reasonable doubt. Before you may find the defendant guilty of the crime
       charged, you must find beyond a reasonable doubt that the defendant was
       not acting in self-defense.
                                             ***
       Before you may convict the defendant of Murder, the State must have
       proven each of the following elements:
                                             5
        1.        The defendant
        2.        knowingly or intentionally
        3.        killed
        4.        Scott Philips by means of a knife, a deadly weapon.

        If the State failed to prove each of these elements beyond a reasonable
        doubt, you must find the defendant not guilty.

Appellant’s App. at 73, 84-85, 95.

        In Smith, after holding that the defendant had waived the issue of the giving of a

jury instruction on accidental killing for failure to proffer any such instruction at trial, our

supreme court noted that:

        [I]t should be said that the court instructed the jury as to murder in the
        second degree, stating that the killing had to be done purposely and
        maliciously, but without premeditation; and in another instruction informed
        the jury that if they found from the evidence beyond a reasonable doubt that
        Rose Johnson was killed by the defendant, their next inquiry would be
        whether it was done purposely, that is intentionally or designedly. These
        instructions, in effect, stated that the defendant should not be found guilty,
        if the jury believed from the evidence that the killing was accidental and not
        unlawful.

154 N.E. at 371 (emphasis added). Likewise, here, where the trial court tendered several

instructions regarding the State’s burden to prove that Lesiak acted knowingly,

intentionally, or recklessly1 when he stabbed Philips, the instructions, read as a whole, “in

effect” instructed the jury to find Lesiak not guilty if the evidence showed that the

stabbing was accidental. See id. The trial court did not abuse its discretion when it

refused Lesiak’s proffered jury instruction on accidental killing.2



        1
            The trial court also instructed the jury on the lesser-included offense of reckless homicide.
        2
           Because we hold that the trial court did not abuse its discretion in instructing the jury, we need
not address Lesiak’s contention that the trial court committed fundamental error when it refused the
proffered instruction.
                                                       6
                          Issue Two: Sufficiency of the Evidence

       Lesiak also contends that the State presented insufficient evidence to support his

conviction. When the sufficiency of the evidence to support a conviction is challenged,

we neither reweigh the evidence nor judge the credibility of the witnesses, and we affirm

if there is substantial evidence of probative value supporting each element of the crime

from which a reasonable trier of fact could have found the defendant guilty beyond a

reasonable doubt. Wright v. State, 828 N.E.2d 904, 905-06 (Ind. 2005). It is the job of

the fact-finder to determine whether the evidence in a particular case sufficiently proves

each element of an offense, and we consider conflicting evidence most favorably to the

trial court’s ruling. Id. at 906.

       To prove reckless homicide, the State was required to present evidence that Lesiak

recklessly killed Philips. See Ind. Code § 35-42-1-5. 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. Ind. Code § 35-41-2-2(c).

       Lesiak first maintains that the State did not present sufficient evidence to rebut his

claim of self-defense. As our supreme court has explained:

       A valid claim of defense of oneself or another person is legal justification
       for an otherwise criminal act. Ind. Code § 35-41-3-2(a); Wallace v. State,
       725 N.E.2d 837, 840 (Ind. 2000). In order to prevail on such a claim, the
       defendant must show that he: (1) was in a place where he had a right to be;
       (2) did not provoke, instigate, or participate willingly in the violence; and
       (3) had a reasonable fear of death or great bodily harm. McEwen v. State,
       695 N.E.2d 79, 90 (Ind. 1998). When a claim of self-defense is raised and
       finds support in the evidence, the State has the burden of negating at least
       one of the necessary elements. Id. If a defendant is convicted despite his
       claim of self-defense, this Court will reverse only if no reasonable person
                                             7
       could say that self-defense was negated by the State beyond a reasonable
       doubt. Taylor v. State, 710 N.E.2d 921, 924 (Ind. 1999). . . . The standard
       of review for a challenge to the sufficiency of evidence to rebut a claim of
       self-defense is the same as the standard for any sufficiency of the evidence
       claim. Sanders v. State, 704 N.E.2d 119, 123 (Ind. 1999). We neither
       reweigh the evidence nor judge the credibility of witnesses. Id. If there is
       sufficient evidence of probative value to support the conclusion of the trier
       of fact, then the verdict will not be disturbed. Id.

Wilson v. State, 770 N.E.2d 799, 800-01 (Ind. 2002).

       Lesiak’s argument on this issue amounts to nothing more than a request that we

reweigh the evidence, which we will not do. The State presented sufficient evidence to

rebut both the second and third elements of Lesiak’s self-defense claim, namely, that he

did not provoke, instigate, or participate willingly in the violence and that he had a

reasonable fear of death or great bodily harm. See McEwen, 695 N.E.2d at 90. In

particular, while Lesiak testified that Philips had head-butted him, hit him in the face, and

slammed his head into the refrigerator while they were fighting, Officer Hinson testified

that he did not observe anything suggesting that an altercation had preceded the stabbing.

Officer Hinson testified further that he observed no injuries on Lesiak’s person other than

a “mark on his lip.” Transcript at 189.

       Lesiak next contends that the State presented insufficient evidence to prove that he

acted recklessly when he stabbed Philips.          Again, 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. Ind. Code § 35-41-2-2(c). In support of his contention

on this issue, Lesiak directs us to his trial testimony that he was merely holding the knife

to “show [Philips he was done arguing]” when Philips “rushe[d] into” him and caused the
                                             8
knife to enter his abdomen. Transcript at 525-26. But, again, Lesiak asks that we

reweigh the evidence. The jury was entitled to, and apparently did, disregard Lesiak’s

version of events. The State presented sufficient evidence to support Lesiak’s conviction.

      Affirmed.

FRIEDLANDER, J., and BRADFORD, J., concur.




                                            9
