                                                                           FILED
                                                                      Sep 30 2016, 9:02 am

                                                                           CLERK
                                                                       Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court




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



                                            IN THE
    COURT OF APPEALS OF INDIANA

Robert Kadrovach,                                         September 30, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          49A02-1510-CR-1738
        v.                                                Appeal from the Marion Superior
                                                          Court
State of Indiana,                                         The Honorable Mark D. Stoner,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          49G06-1408-FA-40680



Crone, Judge.




Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016                  Page 1 of 10
                                            Case Summary
[1]   Robert Kadrovach appeals his conviction for class A felony attempted murder

      resulting from a stabbing incident in downtown Indianapolis. He asserts that

      the trial court fundamentally erred in instructing the jury as to the mens rea

      necessary to convict him of attempted murder. Concluding that he has failed to

      establish fundamental error, we affirm.


                               Facts and Procedural History
[2]   Around 10:00 p.m. on June 21, 2014, Ohnjay Walker and a group of his friends

      left a backyard barbeque on Indianapolis’s far northeast side and headed for a

      downtown bar. Kadrovach was operating a hotdog stand in a parking lot

      across from the bar, with the assistance of Frank McCampbell. After Walker

      and his friends spent some time inside the bar, they decided to buy some

      hotdogs from Kadrovach. During the transaction, McCampbell spilled

      jalapeño peppers on a couple of Walker’s friends, and two of them asked for a

      refund. Kadrovach refused to give them refunds, and a scuffle ensued. Walker

      said that he wanted a bag of chips in lieu of a refund, and as he reached for the

      chips, McCampbell shoved him. The scuffle escalated to a fight, and two of

      Walker’s friends noticed that Kadrovach had pulled out a knife. Walker turned

      to walk away, and Kadrovach struck him in the head with the knife. With the

      blade of the knife lodged in his skull and blood running down the side of his

      head, the mumbling and slouching Walker attempted to get to his friend’s

      vehicle. Friends and bar personnel phoned 911, and police arrived on the


      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016   Page 2 of 10
      scene. Officers took statements, found the knife handle on the ground nearby,

      and arrested Kadrovach.


[3]   With the blade still embedded in his skull, Walker was taken to a nearby

      hospital, where he underwent a craniotomy. The attending neurosurgeon

      explained that the knife had to be removed slowly to avoid fatal blood loss.

      The knife had penetrated to the midline of Walker’s brain, in close proximity to

      the carotid and middle cerebral arteries, in an area vital to motor function and

      short-term memory.


[4]   The State charged Kadrovach with class A felony attempted murder and class B

      felony aggravated battery. During his trial, he did not object to the jury

      instructions that addressed the elements of attempted murder. The jury found

      him guilty as charged, and the trial court merged the aggravated battery

      conviction into the attempted murder conviction. Kadrovach now appeals.


                                   Discussion and Decision
[5]   Kadrovach maintains that the jury instructions misled the jury concerning the

      requisite mens rea for attempted murder. Because he failed to object during

      trial, he concedes that he must establish fundamental error. McKinley v. State,

      45 N.E.3d 25, 28 (Ind. Ct. App. 2015), trans. denied (2016). The fundamental

      error exception to the contemporaneous objection rule is extremely narrow and

      applies only when an error constitutes a blatant violation of basic due process

      principles and the harm or potential for harm is substantial. Isom v. State, 31

      N.E.3d 469, 490 (Ind. 2015), cert. denied (2016). When determining whether

      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016   Page 3 of 10
      fundamental error has occurred with respect to an allegedly improper jury

      instruction, we do not examine the instruction in isolation but rather in the

      context of all relevant information presented to the jury, including closing

      argument and other instructions. McKinley, 45 N.E.3d at 28. “[W]here all such

      information, considered as a whole, does not mislead the jury as to a correct

      understanding of the law,” there is no due process violation and thus no

      fundamental error. Id. at 28-29.


[6]   The jury convicted Kadrovach of attempted murder. Indiana Code Section 35-

      42-1-1(1) reads, in pertinent part, with respect to the offense of murder, “A

      person who … knowingly or intentionally kills another human being …

      commits murder, a felony.” With respect to what constitutes an “attempt,”

      Indiana Code Section 35-41-5-1(a) 1 states:


                A person attempts to commit a crime when, acting with the
                culpability required for commission of the crime, the person
                engages in conduct that constitutes a substantial step toward
                commission of the crime. An attempt to commit a crime is a
                felony or misdemeanor of the same level or class as the crime
                attempted. However, an attempt to commit murder is a Class A
                felony.


[7]   “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.” Isom, 31 N.E.3d at 484




      1
          We quote the version of the statute in effect when Kadrovach committed his offense in June 2014.

      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016                    Page 4 of 10
(internal quotation marks omitted). In Spradlin v. State, our supreme court

established that a jury instruction setting forth the elements of attempted

murder must inform the jury that the State is required to “prove beyond a

reasonable doubt that the defendant, with intent to kill the victim, engaged in

conduct which was a substantial step toward such killing.” 569 N.E.2d 948,

950 (Ind. 1991) (emphasis added). Since Spradlin, our supreme court has

consistently held that the “intent to kill” language must be included in

instructions defining attempted murder and that simply using “knowingly” or

“knowingly or intentionally” does not suffice where the offense is attempted

murder. 2 However, as noted in Williams v. State, 737 N.E.2d 734, 737 (Ind.

2000), even in cases where there has been clear Spradlin error, our supreme

court has, at times, not vacated the attempted murder conviction because it has

found that the intent of the perpetrator was not a central issue at trial and/or

that the instructions as a whole sufficiently suggested the requirement of intent

to kill. See, e.g., Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996) (intent of

perpetrator not central issue at trial); Ramsey v. State, 723 N.E.2d 869, 872-73

(Ind. 2000) (instructions as a whole sufficiently suggested requirement of intent

to kill); Jackson v. State, 575 N.E.2d 617, 621 (Ind. 1991) (intent of perpetrator

not central issue and instructions as a whole sufficient on intent to kill).

Kadrovach correctly asserts that his intent was a central issue below. As such,


2
   Cases in which “knowingly” was insufficient in defining attempted murder include: Metcalfe v. State, 715
N.E.2d 1236, 1237 (Ind. 1999) (fundamental error); Taylor v. State, 616 N.E.2d 748, 749 (Ind. 1993); Woodcox
v. State, 591 N.E.2d 1019, 1023 (Ind. 1992). Cases in which “knowingly or intentionally” was insufficient in
defining attempted murder include: Wilson v. State, 644 N.E.2d 555, 556 (Ind. 1994) (fundamental error);
Greer v. State, 643 N.E.2d 324, 325 (Ind. 1994); Hill v. State, 615 N.E.2d 97, 98 (Ind. 1992).

Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016                   Page 5 of 10
      we limit our discussion to whether the instructions as a whole sufficiently

      suggest the requirement of intent to kill.


[8]   Kadrovach submits that Instructions 8 and 9, read in conjunction, are

      misleading and could convey the notion that the jury needed only to find that

      he acted “knowingly” in order to convict him of attempted murder. Instruction

      8 reads:


              The crime of murder is defined as a person who knowingly kills
              another human being.

              The crime of attempted murder is defined as follows:
              A person attempts to commit murder when, acting with the specific
              intent to kill another person, he engages in conduct that constitutes
              a substantial step toward killing that person.

              To convict the Defendant, the State must prove each of the
              following elements:
              1. The Defendant, Robert Kadrovach,
              2. acting with the specific intent to kill Ohnjay Walker,
              3. did engage in conduct, that is: stabbing with a deadly
              weapon, that is: a knife, at and against the person of Ohnjay
              Walker,
              4. which conduct constituted a substantial step toward the
              commission of said crime of murder.

              If the State fails to prove each of these elements beyond a
              reasonable doubt, you must find the Defendant Robert
              Kadrovach, not guilty of attempt[ed] murder, a Class A felony,
              as charged in Count I.


      Appellant’s App. at 144 (emphases added). Instruction 9 reads:



      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016   Page 6 of 10
               The crime of attempt is defined by statute as follows:
               “A person attempts to commit a crime when, acting with the
               culpability required for the commission of the crime, he engages in
               conduct that constitutes a substantial step toward the commission
               of the crime.” An attempt to commit a crime is a felony or
               misdemeanor of the same class as the crime attempted.


      Id. at 145 (emphasis added). 3


[9]   Instruction 8 twice informed the jury that in order to convict Kadrovach of

      attempted murder, the jury was required to find that he acted with the specific

      intent to kill Walker. As such, the instruction included the language necessary

      to satisfy the requirements of Spradlin. Notwithstanding, Kadrovach points us

      to Instruction 9’s definition of “attempt,” which emphasizes that the culpability

      required for an attempt must be the same as the culpability for the offense that

      was attempted. Ind. Code § 35-41-5-1(a). He then directs our attention to the

      first sentence of Instruction 8, which omits from its definition of murder the

      statutory phrase “or intentionally.” Ind. Code § 35-42-1-1(1). He correctly

      asserts that this amounts to an incomplete definition of murder. However, we

      must assess the implications of the misstatement on his conviction for

      attempted murder.




      3
        Instruction 9 used the term “culpability,” which was not defined elsewhere in the jury instructions.
      Instruction 12 stated, “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.” Appellant’s App. at 148. Instruction 13 stated, “A person
      engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”
      Id. at 149. Instruction 11 defined aggravated battery, an offense of which Kadrovach was also convicted but
      which was merged into his attempted murder conviction and which requires a “knowing” act by the
      defendant. Id. at 147.

      Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016                      Page 7 of 10
[10]   Kadrovach contends that despite the inclusion of the Spradlin language in

       Instruction 8’s definition of attempted murder, he was denied a fair trial

       because the omission of “or intentionally” rendered the definition of murder

       incomplete. He relies on Rosales v. State, 23 N.E.3d 8 (Ind. 2015), as support for

       his argument. In Rosales, our supreme court extended Spradlin’s heightened

       requirement of “specific intent to kill” to jury instructions on attempted murder

       as an accomplice. Id. at 15. Rosales is factually distinguishable because it

       involved an inaccurate instruction concerning accomplice liability. 4 Moreover,

       there, the prosecutor emphasized the inaccurate information by repeatedly

       stating during closing argument that Rosales could be guilty as an accomplice if

       he knowingly aided in the attempted murder. Id. In contrast, here, Kadrovach

       was charged with attempted murder as a direct actor, and there was no similar

       emphasis on an inaccurate mens rea standard by the State during closing

       argument.


[11]   In considering Instructions 8 and 9 together, we first note the difference in

       specificity. Instruction 8 included not only the Spradlin definition of attempted

       murder but also a list of elements that the State was required to prove

       specifically with respect to Kadrovach. This included (1) a straightforward

       admonition that to find Kadrovach guilty of attempted murder, the jury must

       find that he acted with the specific intent to kill Walker; and (2) a charge to the jury


       4
         In Rosales, the accomplice liability instruction stated, “[a] person who knowingly or intentionally aids,
       induces or causes another person to commit an offense commits that offense … [a]n accomplice is liable for
       the acts of the principal which, even if not a part of their original plan, are probable and natural consequences
       thereof.” 23 N.E.3d at 10-11.

       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016                       Page 8 of 10
       that if it finds that the State had failed to prove any one of the elements on the

       list beyond a reasonable doubt, it must find Kadrovach not guilty. In contrast,

       Instruction 9 included a general, statutory definition of an “attempt” to commit

       any offense, stating that the “culpability” necessary to prove an attempt is the

       same level as is required for the offense itself. Unlike Instruction 8, Instruction

       9 did not follow up with a statement such as, “The intent necessary to prove

       that Kadrovach committed the offense of attempted murder is the same as the

       intent that would be required to prove that he committed murder.” Without

       such a connection, it is unlikely that the jury’s attention would have been drawn

       to the mens rea for murder, especially in the face of such a complete and

       accurate statement that in order to convict Kadrovach of attempted murder, the

       jury had to find that he acted with the specific intent to kill Walker.


[12]   Moreover, Kadrovach bases his fundamental error argument on the omission of

       the phrase “or intentionally” from the definition of murder. However, even if

       this phrase had been included, Instructions 8 and 9 would not have been in sync

       post-Spradlin, because murder and attempted murder are no longer subject to

       the same level of culpability. In other words, Instruction 9 tracked the language

       of Indiana Code Section 35-41-5-1(a), which defines a criminal “attempt,” and

       while the language is accurate concerning an attempt to commit other offenses,

       it is no longer accurate where the attempted offense is murder. As such, we

       believe that in cases where a conviction for attempted murder is a possible

       outcome, the best practice would be to either not give Instruction 9 or, if

       necessary because of other possible attempt crimes, to supplement the attempt


       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016   Page 9 of 10
       instruction with a statement that to convict a person of attempted murder, the

       State must prove that he/she acted with the specific intent to kill the victim.


[13]   Given that Instruction 8 specifically emphasized the intent to kill requirement,

       we believe that the instructions as a whole were sufficient to indicate that

       “intent to kill” was required in order to convict Kadrovach of attempted

       murder. As a result, we do not believe that the jury was misled by the

       challenged jury instructions. Finding that Kadrovach has failed to establish that

       he was deprived of a fair trial as a result of the challenged jury instructions, we

       conclude that the error did not rise to the level of fundamental error.

       Accordingly, we affirm.


[14]   Affirmed.


       Kirsch, J., and May, J., concur.




       Court of Appeals of Indiana | Opinion 49A02-1510-CR-1738 | September 30, 2016   Page 10 of 10
