                                                                                     FILED
                                                                             Jul 09 2020, 8:50 am

                                                                                     CLERK
                                                                                 Indiana Supreme Court
                                                                                    Court of Appeals
                                                                                      and Tax Court




      ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
      Jennifer G. Shircliff                                       Curtis T. Hill, Jr.
      Anderson, Indiana                                           Attorney General of Indiana
                                                                  Caroline G. Templeton
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana



                                                   IN THE
          COURT OF APPEALS OF INDIANA

      Michael Philip Atkinson,                                    July 9, 2020
      Appellant-Defendant,                                        Court of Appeals Case No.
                                                                  19A-CR-2568
              v.                                                  Appeal from the Hendricks
                                                                  Superior Court
      State of Indiana,                                           The Honorable Stephenie LeMay
      Appellee-Plaintiff.                                         Luken, Judge
                                                                  Trial Court Cause No.
                                                                  32D05-1811-MR-3



      Tavitas, Judge.


                                                 Case Summary

[1]   Michael Atkinson appeals his conviction for murder. We affirm.



      Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                                   Page 1 of 21
                                                       Issues

[2]   Atkinson raises two issues for our review, which we revise and restate as

      follows:


              I.       Whether the trial court erred in refusing Atkinson’s
                       proposed jury instruction on reckless homicide as a lesser
                       included offense of murder.


              II.      Whether the trial court erred in refusing Atkinson’s
                       proposed jury instruction on involuntary manslaughter as
                       a lesser included offense of murder.


                                                        Facts

[3]   In November 2017, Alyssa Cullen lived at her home in Danville with her

      children, four-year-old J.S. and five-year-old M.S.; her boyfriend, Atkinson; and

      Atkinson’s two children, who were three-years-old and one-year-old in 2017. 1

      J.S. was diagnosed with and took medication for high-functioning autism,

      obsessive-compulsive disorder (“OCD”), and defiance disorder. J.S. was an

      active and sometimes “difficult” and “frustrating” child. Tr. Vol. II p. 199.

      The week prior to November 11, 2017, J.S. had a cold, ran a high fever, had a

      runny nose, and vomited once. By November 11, 2017, J.S. had improved, but

      he still acted tired and not quite himself.




      1
       Atkinson’s two children only lived in Cullen’s home when Atkinson was exercising his parenting time with
      his children.

      Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                              Page 2 of 21
[4]   On November 11, 2017, Cullen took her children to the mall where they met

      Cullen’s mother. Cullen, who helped J.S. get dressed before they left the house,

      did not observe anything unusual on J.S.’s body other than minor injuries or

      bruises a four-year-old typically sustains. Similarly, while at the mall, Cullen’s

      mother assisted J.S. in using the restroom and did not observe any significant

      marks or bruises on J.S. Later that evening, Cullen met friends for a concert

      and left Atkinson with J.S., M.S., and Atkinson’s two children at the home.

      According to Cullen, the home was “chaotic” due to the number of people and

      the children “running around laughing [and] playing.” Id. at 204.


[5]   While Cullen was out, Atkinson sent Cullen a text message indicating that

      Atkinson believed he had identified the source of J.S.’s stomachaches the week

      prior based on J.S. having a significant bowel movement. Sometime later that

      evening, Atkinson notified Cullen that J.S. was not breathing, and Cullen

      needed to return home immediately. Atkinson called 911.


[6]   When the medics arrived, Atkinson was performing CPR on J.S. in the living

      room. 2 Medics took over and began performing life-saving techniques; J.S. did

      not have a pulse and was not breathing. Medics observed bruising on J.S.’s

      abdomen and on the back of J.S.’s head. Atkinson reported to the medics that

      J.S. had fallen in the shower.




      2
          According to one EMT who arrived on the scene, Atkinson was performing CPR incorrectly.


      Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                              Page 3 of 21
[7]   Officer Josh Gauger, with the Danville Police Department, was dispatched to

      Cullen’s home. Atkinson was the only adult present in the home when Officer

      Gauger arrived. The other children were sleeping in their bedrooms.

      According to Officer Gauger, Atkinson looked concerned. Shortly thereafter,

      Cullen arrived home while the medics were tending to J.S.


[8]   J.S. was transported to Hendricks Regional Health (“Hendricks Regional”). At

      Hendricks Regional, Officer Gauger interviewed both Atkinson and Cullen,

      took photographs of J.S., contacted Indiana Department of Child Services

      (“DCS”), and turned the case over to detectives. Dr. Mark Collins, an

      emergency physician at Henricks Regional, treated J.S. Dr. Collins observed

      that the unresponsive J.S. was “literally covered in bruises,” except on his face.

      Id. at 126. J.S. also had “an impression on his lower abdomen and swelling in

      the scrotum,” which led Dr. Collins to believe that J.S. had sustained an

      internal injury. Id. at 127. Dr. Collins’ impression was that J.S. “had sustained

      some sort of trauma.” Id. The bruises on J.S.’s side led Dr. Collins to believe

      that “some sort of pressure [was] applied to the front of [J.S.]” because the

      bruises on the side of J.S.’s body were located in a “very hard” and “odd” place

      to bruise. Id. at 129.


[9]   J.S. was transported to Riley Hospital for Children (“Riley”) where he was

      treated by pediatrician Dr. Ralph Hicks in the pediatric intensive care unit in




      Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020         Page 4 of 21
       the early morning hours of November 12, 2017. 3 J.S. remained unresponsive

       while at Riley, and the following day, on November 13, 2017, J.S. was

       pronounced dead.


[10]   At Riley, Atkinson was interviewed by detectives. During the interview,

       Atkinson reported that J.S. fell in the shower, hit his head, and began to bleed. 4

       After J.S.’s shower, J.S. sat with Atkinson on the couch, Atkinson and J.S. fell

       asleep on the couch, and approximately an hour and one-half later, Atkinson

       put J.S. to bed. Atkinson stated that he checked on J.S. approximately fifteen

       minutes later only to discover that J.S. had not moved and was not taking full

       breaths; therefore, Atkinson carried J.S. to the living room and attempted CPR.

       Atkinson denied knowledge of how J.S. sustained his injuries and, in fact, when

       pressed by officers about whether Atkinson may have accidentally hurt J.S.,

       Atkinson responded to investigators unequivocally that he did not hurt J.S.


[11]   On November 14, 2017, investigators went to Cullen’s house to photograph and

       collect evidence. 5 The photographed evidence included: a bath rug and bath

       towels, which appeared to contain blood or feces; the pillow on J.S.’s bed,

       which contained blood; and a hole in the wall in J.S.’s closet. Detectives also

       obtained camera footage from a nanny camera in J.S.’s bedroom; however, it



       3
           Dr. Hicks is board certified in child abuse pediatrics.
       4
        Cullen testified that J.S. had a minor cut on the back of his head from an injury at daycare. During
       Atkinson’s interview, Atkinson indicated that he believed that J.S. began bleeding from that cut when he fell.
       5
        Prior to the search, the home was not sealed off as a crime scene; therefore, individuals could still access the
       home.

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                                    Page 5 of 21
       appeared that portions of the video had been deleted or the recorder stopped

       recording; the video did not depict Atkinson’s account that Atkinson checked

       on J.S. after putting J.S. to bed.


[12]   Investigators found a hole in the back of J.S.’s bedroom closet approximately

       three and one-half by three and one-half inches. Expert testimony was

       presented that a hair sample found above the hole on the wall in J.S.’s closet

       was one trillion times more likely to come from J.S. than to come from an

       unknown individual. Analysis revealed that DNA from J.S.’s pillow, which

       contained blood, was one trillion times more likely from J.S. than from an

       unknown individual. Similarly, blood found on a bath towel collected from the

       residence was one trillion times more likely to come from J.S. than an unknown

       individual.


[13]   On January 17, 2018, Atkinson was charged with Count I, aggravated battery, a

       Level 1 felony and Count II, neglect of a dependent resulting in death, a Level 1

       felony. On October 1, 2018, the State filed a motion to add Count III, murder,

       a felony. The trial court granted the State’s motion.


[14]   Atkinson’s jury trial was held in September 2019. Witnesses testified to the

       foregoing facts. Cullen testified that the bruises she observed on J.S. at Riley

       were not present when she left J.S. in Atkinson’s care on November 11, 2017.

       Cullen testified that, since November 11, 2017, she has been unable to locate a

       metal towel bar, which had fallen off the wall and was stored behind the toilet

       in the bathroom at her home. Cullen also testified that the hole in J.S.’s closet


       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 6 of 21
       wall was not present in the weeks leading up to November 11, 2017; she

       testified that she had been in J.S.’s closet previously and was confident she

       would have noticed the hole.


[15]   Cullen testified that the night before Atkinson was charged, he apologized to

       Cullen because he admitted responsibility for J.S.’s injuries. Atkinson insisted

       to Cullen that he did not hit, kick, or punch J.S.; however, Atkinson instead

       indicated that he felt responsible because he was responsible for caring for J.S.

       Finally, Cullen testified that her daughter, M.S., reported to her that she heard

       a “thud” in the bathroom and found J.S. on the floor of the bathtub the night of

       the incident. Id. at 222. Additionally, Jeffrey Burger, Atkinson’s cell block

       mate in the Hendricks County Jail, testified that Atkinson disclosed to Burger,

       while they both were in the jail, that Atkinson was responsible for J.S.’s

       injuries.


[16]   Regarding the cause of J.S.’s injuries, Zachary Gruner, one of the EMTs who

       attended to J.S., testified that J.S.’s injuries were inconsistent with what he

       typically sees in shower slip-and-fall calls. Dr. Collins similarly testified that

       J.S.’s injuries were not consistent with a fall in the bathtub, and Dr. Collins’

       impression was that J.S. had been “beaten to death.” Id. at 133. Dr. Collins

       further testified that J.S.’s bloodwork revealed severe anemia, which is

       consistent with internal bleeding and trauma.


[17]   Dr. Hicks testified regarding his examination of J.S.’s CT scans, which revealed

       subdural hematomas, bruises on J.S.’s lungs, blood in J.S.’s abdomen, and


       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020            Page 7 of 21
       apparent injuries in J.S.’s spleen, bowel wall, and pelvis. Dr. Hicks also

       testified that it appeared J.S. sustained a forceful impact to the head; J.S.’s

       injuries did not appear to come from a single fall in the shower; and J.S.’s

       injuries were “characteristic of inflicted, non-accidental trauma.” Id. at 159.

       Dr. Hicks further testified that the blows needed to cause the internal injuries

       J.S. sustained “would have to be very forceful and violent.” Id. at 158.

       According to Dr. Hicks: (1) he did not believe that a child with the fatal brain

       injury J.S. sustained would be acting “normal[ly]” after this type of injury; and

       (2) symptoms from the injury “would occur either immediately or very shortly

       after whatever happened to cause the injuries.” Id. at 163-64.


[18]   Dr. John Cavanaugh, a child death pathologist at the Marion County Coroner’s

       Office, performed a forensic autopsy on J.S. on November 14, 2017, three days

       after J.S.’s death. Dr. Cavanaugh testified that J.S.’s cause of death was a

       homicide through “multiple blunt force traumatic injuries without adequate

       explanation inconsistent with a simple accidental fall”; Dr. Cavanaugh opined

       that J.S.’s injuries occurred through multiple blows and falls. Tr. Vol. III p. 70.

       Dr. Cavanaugh also noted that the injuries to J.S. included multiple blunt force

       traumatic injuries to the head, and blunt force injuries to the chest, abdomen,

       and pelvis. Dr. Cavanaugh testified that J.S.’s brain injuries were consistent

       with an injury that would have occurred anywhere between two to four days

       prior to the autopsy.


[19]   Atkinson filed his proposed final instructions to the trial court, which included

       proposed instructions for the lesser included offenses of involuntary

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020           Page 8 of 21
       manslaughter and reckless homicide. The trial court denied Atkinson’s request

       to include both instructions for involuntary manslaughter and reckless

       homicide.


[20]   The jury found Atkinson guilty on all counts as charged. The trial court

       vacated Counts I and II due to double jeopardy concerns and sentenced

       Atkinson on the murder conviction to sixty-five years in the Indiana

       Department of Correction. Atkinson now appeals his conviction.


                                                      Analysis

[21]   Atkinson was convicted of murder. Murder is defined in Indiana Code Section

       35-42-1-1(1) as any person who “knowingly or intentionally kills another

       human being.” Atkinson argues that the trial court erred when it refused to

       give Atkinson’s proposed final jury instructions on both reckless homicide and

       involuntary manslaughter as lesser included offenses. “The trial court has

       broad discretion as to how to instruct the jury, and we generally review that

       discretion only for abuse.” Kane v. State, 976 N.E.2d 1228, 1231 (Ind. 2012)

       (citing Mayes v. State, 744 N.E.2d 390, 394 (Ind. 2001)).


[22]   In Evans v. State, 727 N.E.2d 1072, 1080-81 (Ind. 2000), our Supreme Court

       summarized the law regarding whether a trial court should instruct on a lesser

       included offense:


               In Wright v. State, 658 N.E.2d 563 (Ind. 1995), this Court set forth
               a three-part test for determining when a trial court should instruct
               on a lesser included offense. Part one requires the trial court to
               determine whether the lesser offense is “inherently” included in

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 9 of 21
               the offense charged by comparing the statute defining the crime
               charged with the statute defining the alleged lesser included
               offense. Id. at 566-67; see also Wilson v. State, 697 N.E.2d 466, 473
               (Ind. 1998). If necessary, part two of the Wright test alternatively
               requires the trial court to determine whether the lesser offense is
               “factually” included in the offense charged by comparing the
               charging instrument with the statute defining the alleged lesser
               included offense. Wright, 658 N.E.2d at 567.


               Finally, if the court concludes that the lesser offense is either
               inherently or factually included in the offense charged, then part
               three requires the court to determine whether a serious
               evidentiary dispute exists as to which offense was committed by
               the defendant, given all the evidence presented by both parties.
               Id. If a serious evidentiary dispute does exist, it is reversible error
               not to give the instruction on the inherently or factually included
               lesser offense. Id.


[23]   “We review for an abuse of discretion a trial court’s factual finding on the

       existence vel non of a ‘serious evidentiary dispute.’ Garrett v. State, 964 N.E.2d

       855, 857 (Ind. Ct. App. 2012) (quoting Champlain v. State, 681 N.E.2d 696, 700

       (Ind. 1997). “If the trial court makes no ruling as to whether there is a serious

       evidentiary dispute,” we are required to “make that determination de novo”

       based on our review of the evidence. Garrett, 964 N.E.2d at 857-58.


                                      I.       Reckless Homicide Instruction

[24]   First, Atkinson argues that the trial court erred in failing to give the jury a

       proposed instruction for reckless homicide. Atkinson’s proposed final jury

       instruction on reckless homicide stated, in relevant part:



       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020             Page 10 of 21
               The crime of Reckless Homicide is included in the charged crime
               of Murder.[ 6]


               The crime of Reckless Homicide is defined by law as follows: A
               person who recklessly kills another human being commits
               reckless homicide, a Level 5 felony.


               Before you may convict the Defendant, the State must have
               proved each of the following beyond a reasonable doubt:


                        1. The Defendant


                        2. recklessly


                        3. killed


                        4. [J.S.]


               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty of
               Reckless Homicide as included in Count 3.


       Appellant’s App. Vol. II p. 171.


[25]   At trial, Atkinson argued the trial court should have included this instruction

       because (1) the evidence was submitted that Atkinson fell asleep while he was

       babysitting the children; (2) there was no evidence he was upset or displeased




       6
         Indiana Code Section 35-42-1-5 states: “A person who recklessly kills another human being commits
       reckless homicide, a Level 5 felony.”

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                             Page 11 of 21
       about babysitting the children; (3) Atkinson attempted CPR; (4) Atkinson called

       911; and (5) Atkinson was emotional and cried when Cullen arrived home.

       Therefore, Atkinson argued, if he did something or failed to do something, he

       did so recklessly and not knowingly. The State argued, however, reckless

       homicide was an improper jury instruction because Atkinson did not assert that

       he was reckless in J.S.’s death; instead, Atkinson asserted that J.S. fell in the

       bathtub and Atkinson was not involved in any way in J.S.’s death.


[26]   In looking at the first step of the Wright analysis regarding whether the offense

       is inherently included, we note that reckless homicide is an inherently included

       lesser offense of murder. See Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012).

       The only difference between murder and reckless homicide is the state of mind

       required for each. See id.; see also Ind. Code § 35-41-2-2(c) (“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”); see also Ind. Code

       § 35-41-2-2(b) (“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”); see also

       Ind. Code § 35-41-2-2(a) (“A person engages in conduct ‘intentionally’ if, when

       he engages in the conduct, it is his conscious objective to do so.”).


[27]   We must ask, therefore, whether there was a serious evidentiary dispute

       regarding Atkinson’s state of mind that would require the reckless homicide

       instruction. The trial court stated on the record when ruling on Atkinson’s

       proposed reckless homicide instruction:

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 12 of 21
               At no time is there any defense that this child was injured
               accidentally through testimony from your client or through
               statements prior to trial from your client. That I am declining at
               this point in time the defense is basically I didn’t do it, I did not
               commit these injuries, that’s your client’s absolute right to have
               that defense, and he’s been consistent uh, throughout his
               statements to law enforcement throughout the investigation and
               through, nothing has changed through this trial. I am declining
               to give the lesser included offense of reckless homicide, there is
               nothing in the evidence that supports that lesser included offense at
               this time.


       Tr. Vol. III p. 51 (emphasis added). Because the trial court made these

       findings, we will review the question of whether a serious evidentiary dispute

       exists and whether the trial court abused its discretion. See McEwen, 695 N.E.2d

       at 85 (“Although not using the terminology of Wright, the court made the

       functional equivalent of a finding on the existence or lack of serious evidentiary

       dispute as to McEwen’s reckless behavior”).


[28]   Atkinson argues his state of mind can be shown by the following evidence: (1)

       he was calm when Cullen left the house for the evening; (2) he was content

       babysitting the children for the evening; (3) Atkinson was in regular contact

       with Cullen; (4) Atkinson called 911; and (5) Atkinson attempted to perform

       CPR. See Appellant’s Br. p. 16. The State responds that the severity of J.S.’s

       injuries was such that Atkinson’s actions, which resulted in J.S.’s death, could

       have only occurred knowingly.


[29]   Our Court addressed a similar issue in McDowell v. State, 102 N.E.3d 924 (Ind.

       Ct. App. 2018), trans. denied. In McDowell, McDowell called 911 to report that

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020            Page 13 of 21
       his girlfriend was unconscious. When paramedics arrived, they confronted

       McDowell about the numerous bruises on the girlfriend’s body, and McDowell

       responded to paramedics that he and his girlfriend had gotten into a fight.

       McDowell’s girlfriend ultimately succumbed to her injuries. Evidence from the

       scene revealed scratches on McDowell’s face, a shoeprint on the girlfriend’s

       shirt consistent with one of McDowell’s shoes, the girlfriend’s blood on the

       door of the bathroom, and the presence of McDowell’s skin under the

       girlfriend’s fingernails. McDowell also admitted to an officer that he killed his

       girlfriend, but then later denied it.


[30]   McDowell was charged and convicted of murder. The trial court refused

       McDowell’s tendered jury instruction on reckless homicide, but the trial court

       did instruct the jury regarding voluntary manslaughter. In his petition for post-

       conviction relief, McDowell argued that he received ineffective assistance of

       counsel because his trial counsel did not request an instruction on reckless

       homicide. Our Court found on appeal that, even if trial counsel had requested

       the instruction, it could not have been properly given. Our Court observed that

       the “beating” that caused the victim’s injuries was “so severe that no reasonable

       person could have found it to have been inflicted only recklessly without also

       having been done knowingly.” McDowell, 102 N.E.3d at 932. Accordingly, our

       Court concluded: “[t]o beat someone as severely as [the victim] was beaten goes

       well beyond the realm of acting recklessly[.]” Id. See also Brown v. State, 512

       N.E.2d 173, 177 (Ind. 1987) (“Given the severity of the victim’s injuries, the

       nature in which they were inflicted, and the fact that some were several days


       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020         Page 14 of 21
       old, we conclude that the trial court properly refused to give Brown’s tendered

       instructions [regarding battery and reckless homicide]. . . . The injuries were too

       extensive to support a mere touching or reckless act on Brown’s part.”).


[31]   McDowell is instructive to our analysis here. J.S. sustained injuries which led

       Dr. Collins to conclude that J.S. was beaten to death. Dr. Hicks similarly

       concluded that the trauma necessary to cause these injuries would have been

       “forceful” and “violent,” and “something that any reasonable bystander would

       immediately recognize as being potentially dangerous for the child.” Tr. Vol. II

       p. 158. J.S.’s CT scans revealed multiple subdural hematomas, bruises on J.S.’s

       lungs, blood in J.S.’s abdomen, and apparent injuries to J.S.’s spleen, bowel

       wall, and pelvis.


[32]   J.S.’s injuries were so severe that no reasonable person could have found the

       injuries to have been inflicted only recklessly. The record reveals no serious

       evidentiary dispute that Atkinson acted knowingly instead of recklessly.

       Accordingly, the trial court did not abuse its discretion in refusing to give the

       reckless homicide instruction.


                                II.      Involuntary Manslaughter Instruction

[33]   Atkinson also argues the trial court erred in failing to instruct the jury regarding

       involuntary manslaughter. Atkinson’s proposed final jury instruction on

       involuntary manslaughter stated, in relevant part:




       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 15 of 21
           The crime of Involuntary Manslaughter is included in the
           charged crime of Murder.[ 7]


           The crime of involuntary manslaughter is defined by statute as
           follows: A person who kills another human being while
           committing or attempting to commit (1) a Level 5 or Level 6
           felony that inherently poses a risk of serious bodily injury; (2) a
           class A misdemeanor that inherently poses a risk of serious
           bodily injury; or (3) battery; commits Involuntary Manslaughter,
           a Level 5 felony.


           Before you may convict the Defendant, the State must have
           proved each of the following elements:


                    1. The Defendant


                    2. killed [J.S.]


                    3. while committing


                    4. a battery


                    5. by knowingly




7
    Indiana Code Section 35-42-1-5(b) states:
           A person who kills another human being while committing or attempting to commit:
                    (1) a Level 5 or Level 6 felony that inherently poses a risk of serious bodily injury;
                    (2) a Class A misdemeanor that inherently poses a risk of serious bodily injury; or
                    (3) battery;
           commits involuntary manslaughter, a Level 5 felony.

Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                                      Page 16 of 21
                        6. touching [J.S.]


                        7. in a rude, insolent, or angry manner


               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the Defendant not guilty of
               involuntary manslaughter.


       Appellant’s App. Vol. II pp. 171-72.


[34]   “[I]nvoluntary manslaughter is not an inherently included lesser offense of

       murder.” Blackburn v. State, 130 N.E.3d 1207, 1212 (Ind. Ct. App. 2019).

       Atkinson’s argument, however, is that the tendered involuntary manslaughter

       instruction should have been given as a factually lesser included offense,

       according to the second prong of Wright. This prong requires us to consider

       whether the offense is a factually lesser included offense due to the fact that the

       State also charged Atkinson with aggravated battery. See Ind. Code § 35-42-1-

       5(b) (defining involuntary manslaughter as the killing of another while

       attempting to inflict serious bodily injury or committing a battery). The State

       responds that the charging information regarding the murder itself did not

       allege a battery, which would factually foreclose an involuntary manslaughter

       instruction.


[35]   Generally, the State can foreclose an instruction on involuntary manslaughter

       as a lesser included offense based on the chosen wording of the charging

       information. See Wright, 658 N.E.2d at 570 (“the State may only foreclose

       instruction on a lesser offense that is not inherently included in the crime

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 17 of 21
       charged by omitting from a charging instrument factual allegations sufficient to

       charge the lesser offense.”); see c.f., Evans, 727 N.E.2d at 1081 (finding that,

       because the charging information alleged that the defendant killed the victims

       by means of a knife, involuntary manslaughter was a factually included lesser

       offense).


[36]   The charging information with regard to the murder alleged: “[o]n or about

       November 11, 2017, in Hendricks County, Indiana, [Atkinson] did knowingly

       kill another human being, to wit: [J.S.].” Appellant’s App. Vol. II p. 92.

       Atkinson was separately charged with aggravated battery, a Level 1 felony.

       The battery charging information alleged that Atkinson “did knowingly or

       intentionally inflict injury on [J.S.] that created a substantial risk of death and

       did result in the death of [J.S.], a child less than fourteen years of age.” Id. at

       14. Neither party cited cases in its brief to support or contradict the argument

       that when a defendant is charged with a battery in addition to murder, the

       involuntary manslaughter instruction must be tendered to the jury, even when

       the charging information for the murder itself does not allege a battery.


[37]   Nonetheless, our Supreme Court has repeatedly held that the State may

       foreclose instruction on a lesser included offense that is not an inherently lesser

       included offense “by omitting from a charging instrument factual allegations

       sufficient to charge the lesser offense.” Wright, 658 N.E.2d at 570. In other

       words, the State has the discretion to draft the charging information in such a

       way that precludes instruction on a factually lesser included offense. Here, the

       charging information for the murder itself does not discuss a battery. If the

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020           Page 18 of 21
       State chose to risk obtaining a conviction for murder or nothing—instead of

       having the opportunity to argue at least for a lesser included offense—that is the

       State’s prerogative to do so. Because the charging information with regard to

       the murder did not allege a battery, an instruction for involuntary manslaughter

       was factually excluded. Accordingly, Atkinson was not entitled to an

       instruction on involuntary manslaughter.


[38]   Nonetheless, even if we were to find involuntary manslaughter is a factually

       included lesser offense, there was no serious evidentiary dispute that would

       entitle Atkinson to an instruction on involuntary manslaughter. If involuntary

       manslaughter was a factually included lesser offense, we would be required to

       consider this third step of the Wright test because, “if the court concludes that

       the lesser offense is either inherently or factually included in the offense

       charged, then part three requires the court to determine whether a serious

       evidentiary dispute exists as to which offense was committed by the defendant,

       given all the evidence presented by both parties.” Evans, 727 N.E.2d at 1081.

       The trial court merely stated on the record that it was going to decline to give

       the instruction regarding involuntary manslaughter; therefore, we review this

       issue de novo. Garrett, 964 N.E.2d at 857-58.


[39]   A panel of our Court addressed this issue in Galindo v. State, 62 N.E.3d 1285,

       1292 (Ind. Ct. App. 2016). In Galindo, the charging information alleged that

       Galindo caused the victim’s death by battering her; therefore, our Court found

       that involuntary manslaughter was a factually included lesser offense due to the

       language of the charging information. Our Court, however, found no

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 19 of 21
       evidentiary dispute when it moved to the third step of the Wright analysis, and

       concluded: “Galindo kicked or stomped [the victim] in the head multiple

       times and strangled her with extensive and prolonged force. All of the

       evidence in this case contradicts Galindo’s general denial that he did not

       knowingly or intentionally kill [the victim].”8 Galindo, 62 N.E.3d at 1292.

[40]   As in Galindo, we must consider whether Atkinson intended to batter or kill J.S.

       Based on the evidence before us, we find no serious evidentiary dispute in the

       evidence regarding Atkinson’s intent. The State introduced testimony from

       J.S.’s treating doctors that J.S. sustained serious, forceful, and traumatic

       injuries. The State also introduced photographs of J.S.’s swollen body, which

       was covered in bruises, and a gash in J.S.’s head, which reflects a brutal and

       violent beating consistent with Dr. Collins’ testimony that J.S. was beaten to

       death. Finally, the State introduced the interview of Atkinson at Riley where

       Atkinson told detectives that J.S. fell in the shower and that Atkinson did not

       know how J.S. sustained his injuries; however, the State also presented

       overwhelming evidence that Atkinson’s explanation is implausible.


[41]   Atkinson did not present any evidence during his case-in-chief and presented no

       defense that Atkinson’s intent was merely was to batter, instead of knowingly

       kill, J.S. Accordingly, there was no evidentiary dispute for the jury to resolve.




       8
        There was also evidence in Galindo that Galindo did not call 911 to assist the victim with her injuries.
       Although, here, Atkinson called 911 to aid J.S., this fact alone is not dispositive, and we find other evidence,
       such as the graphic photographs of J.S.’s injuries, that evidence Atkinson’s intent to kill J.S.

       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020                                   Page 20 of 21
       See McEwen, 695 N.E.2d at 87 (finding that the evidence was weak to support

       an instruction on involuntary manslaughter because McEwen denied hitting the

       victim, “a disclaimer of any criminal intent[,]” and McEwen “staked everything

       on a defense of accident” and, accordingly, “offered an alternative account of

       events that foreclosed any middle ground as to his intent”).


[42]   Accordingly, we cannot find an evidentiary dispute regarding Atkinson’s intent

       to kill. The trial court did not err in failing to give the involuntary

       manslaughter instruction.


                                                    Conclusion

[43]   The trial court did not err in failing to give the jury Atkinson’s proposed jury

       instructions regarding reckless homicide and involuntary manslaughter. We

       affirm.


[44]   Affirmed.


       Riley, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2568 | July 9, 2020          Page 21 of 21
