MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 14 2020, 8:53 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alvin Perkins, July 14, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2302 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese Flowers, Appellee-Plaintiff. Judge Trial Court Cause No. 49G02-1805-MR-17276
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 1 of 6 [1] Alvin Perkins appeals his conviction for murder. He raises one issue which we
restate as whether the trial court abused its discretion by declining to give
Perkins’s proposed instruction on reckless homicide as a lesser included offense
of murder. We affirm.
Facts and Procedural History
[2] Perkins and his wife, Mona, had been married since the early 1980s. On the
morning of May 26, 2018, they argued at their apartment. At some point
during the argument, Mona picked up a lamp, unplugged it, and chased Perkins
in their bedroom while carrying the lamp. According to Perkins’s statement to
law enforcement, she chased him around, he “chased her back around,” and
she “backed up.” State’s Exhibit No. 70 at 14. He retrieved a handgun case
from behind a cabinet beside the bed and removed a holstered handgun.
[3] Perkins shot Mona six times, firing the first shot when she was on the other side
of the bed from him. Mona sustained two gunshot wounds on the left side of
her back, as well as gunshot wounds on her left shoulder, chest, pelvis, and left
leg, and she later died from her injuries.
[4] Perkins returned the handgun to the case, called 911, and encountered and led
the responding law enforcement to the apartment. Officers asked him what had
happened, and he “stated that he had shot his wife,” “they had been arguing all
night,” and “she had been nagging at him and he shot her.” Transcript Volume
II at 94. Officers arrested Perkins, and he gave a statement in which he
indicated he was trying to shoot the lamp.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 2 of 6 [5] At Perkins’s jury trial for murder, the State submitted as exhibits the 911 call
and statement Perkins gave to police; a computer diagram of the apartment
scene detailing where evidence was recovered; and corresponding photographs
of the bedroom, including of a lamp on the bed, the bedroom’s west wall and a
cabinet to the left of the bed. The State presented the testimony of an officer
who responded to the scene and indicated Mona was discovered on the “left
hand side” of the bed “propped up between the wall and nightstand that was
next to the bed” and that there was a significant amount of blood on her, her
clothes, and the floor. Id. at 97. The officer further testified that Perkins did not
ever ask about Mona or her condition, that she did not notice any blood, marks,
or injuries on him, and that he never complained of any injuries. A forensic
pathologist testified about the trajectory of the bullets in relation to Mona’s
gunshot wounds and explained that the shots to her back had a trajectory of
“left to right upward, upward and left to front.” Id. at 190. Perkins tendered a
jury instruction on a lesser included offense of reckless homicide. The trial
court denied the instruction, stated it did not believe the evidence supported a
reckless homicide instruction, and provided an instruction on voluntary
manslaughter over the State’s objection. The jury found Perkins guilty of
murder.
Discussion
[6] The issue is whether the trial court abused its discretion by declining to give
Perkins’s proposed instruction on reckless homicide to the jury. We apply a
three-step analysis in determining whether a defendant was entitled to an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 3 of 6 instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d 563, 566-
567 (Ind. 1995). We must determine: (1) whether the lesser-included offense is
inherently included in the crime charged; if not, (2) whether the lesser-included
offense is factually included in the crime charged; and, if either, (3) whether there
is a serious evidentiary dispute whereby the jury could conclude the lesser offense
was committed but not the greater offense. Id. If the “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, when requested, on the inherently or
factually included lesser offense.” Id. at 567. When the trial court makes a
finding that a serious evidentiary dispute does not exist, we will review that
finding for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.
1998).
[7] Reckless homicide 1 is an inherently included lesser offense of murder, 2 as the
only element distinguishing the two is the requisite culpability. See Miller v.
State, 720 N.E.2d 696, 702 (Ind. 1999). 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) By
contrast, a person engages in conduct “knowingly” if, when he engages in the
1 Ind. Code § 35-42-1-5. 2 Ind. Code § 35-42-1-1 provides that a person who knowingly or intentionally kills another human being commits murder.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 4 of 6 conduct, he is “aware of a high probability that he is doing so.” Ind. Code § 35-
41-2-2(b).
[8] Perkins disputes only his mens rea and argues evidence of his actions after the
shooting demonstrates he did not intend to cause Mona’s death. He contends
that, in both the 911 call and his statement, he reported she had brandished a
lamp and threatened to strike him with it and he had shot at the lamp to cause
her to drop it.
[9] While Perkins’s account to police following the incident includes statements
that he was “not thinking” that he was going to hit her as he was shooting at
the lamp, it also includes his indications he and Mona “weren’t really like super
fighting but she just chased [him] around with the lamp,” she “didn’t swing it
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MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jul 14 2020, 8:53 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Timothy J. O’Connor Curtis T. Hill, Jr. O’Connor & Auersch Attorney General of Indiana Indianapolis, Indiana Benjamin J. Shoptaw Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Alvin Perkins, July 14, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2302 v. Appeal from the Marion Superior Court State of Indiana, The Honorable Shatrese Flowers, Appellee-Plaintiff. Judge Trial Court Cause No. 49G02-1805-MR-17276
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 1 of 6 [1] Alvin Perkins appeals his conviction for murder. He raises one issue which we
restate as whether the trial court abused its discretion by declining to give
Perkins’s proposed instruction on reckless homicide as a lesser included offense
of murder. We affirm.
Facts and Procedural History
[2] Perkins and his wife, Mona, had been married since the early 1980s. On the
morning of May 26, 2018, they argued at their apartment. At some point
during the argument, Mona picked up a lamp, unplugged it, and chased Perkins
in their bedroom while carrying the lamp. According to Perkins’s statement to
law enforcement, she chased him around, he “chased her back around,” and
she “backed up.” State’s Exhibit No. 70 at 14. He retrieved a handgun case
from behind a cabinet beside the bed and removed a holstered handgun.
[3] Perkins shot Mona six times, firing the first shot when she was on the other side
of the bed from him. Mona sustained two gunshot wounds on the left side of
her back, as well as gunshot wounds on her left shoulder, chest, pelvis, and left
leg, and she later died from her injuries.
[4] Perkins returned the handgun to the case, called 911, and encountered and led
the responding law enforcement to the apartment. Officers asked him what had
happened, and he “stated that he had shot his wife,” “they had been arguing all
night,” and “she had been nagging at him and he shot her.” Transcript Volume
II at 94. Officers arrested Perkins, and he gave a statement in which he
indicated he was trying to shoot the lamp.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 2 of 6 [5] At Perkins’s jury trial for murder, the State submitted as exhibits the 911 call
and statement Perkins gave to police; a computer diagram of the apartment
scene detailing where evidence was recovered; and corresponding photographs
of the bedroom, including of a lamp on the bed, the bedroom’s west wall and a
cabinet to the left of the bed. The State presented the testimony of an officer
who responded to the scene and indicated Mona was discovered on the “left
hand side” of the bed “propped up between the wall and nightstand that was
next to the bed” and that there was a significant amount of blood on her, her
clothes, and the floor. Id. at 97. The officer further testified that Perkins did not
ever ask about Mona or her condition, that she did not notice any blood, marks,
or injuries on him, and that he never complained of any injuries. A forensic
pathologist testified about the trajectory of the bullets in relation to Mona’s
gunshot wounds and explained that the shots to her back had a trajectory of
“left to right upward, upward and left to front.” Id. at 190. Perkins tendered a
jury instruction on a lesser included offense of reckless homicide. The trial
court denied the instruction, stated it did not believe the evidence supported a
reckless homicide instruction, and provided an instruction on voluntary
manslaughter over the State’s objection. The jury found Perkins guilty of
murder.
Discussion
[6] The issue is whether the trial court abused its discretion by declining to give
Perkins’s proposed instruction on reckless homicide to the jury. We apply a
three-step analysis in determining whether a defendant was entitled to an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 3 of 6 instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d 563, 566-
567 (Ind. 1995). We must determine: (1) whether the lesser-included offense is
inherently included in the crime charged; if not, (2) whether the lesser-included
offense is factually included in the crime charged; and, if either, (3) whether there
is a serious evidentiary dispute whereby the jury could conclude the lesser offense
was committed but not the greater offense. Id. If the “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, when requested, on the inherently or
factually included lesser offense.” Id. at 567. When the trial court makes a
finding that a serious evidentiary dispute does not exist, we will review that
finding for an abuse of discretion. Brown v. State, 703 N.E.2d 1010, 1019 (Ind.
1998).
[7] Reckless homicide 1 is an inherently included lesser offense of murder, 2 as the
only element distinguishing the two is the requisite culpability. See Miller v.
State, 720 N.E.2d 696, 702 (Ind. 1999). 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) By
contrast, a person engages in conduct “knowingly” if, when he engages in the
1 Ind. Code § 35-42-1-5. 2 Ind. Code § 35-42-1-1 provides that a person who knowingly or intentionally kills another human being commits murder.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 4 of 6 conduct, he is “aware of a high probability that he is doing so.” Ind. Code § 35-
41-2-2(b).
[8] Perkins disputes only his mens rea and argues evidence of his actions after the
shooting demonstrates he did not intend to cause Mona’s death. He contends
that, in both the 911 call and his statement, he reported she had brandished a
lamp and threatened to strike him with it and he had shot at the lamp to cause
her to drop it.
[9] While Perkins’s account to police following the incident includes statements
that he was “not thinking” that he was going to hit her as he was shooting at
the lamp, it also includes his indications he and Mona “weren’t really like super
fighting but she just chased [him] around with the lamp,” she “didn’t swing it
at” him, and that “she brought [the lamp] down” and he was “still trying to
shoot at” it. State’s Exhibit No. 70 at 5, 10. After he retrieved the handgun
case from behind a cabinet beside the bed and removed a holstered handgun,
Perkins fired six shots in Mona’s direction at close range, and all six shots hit
her. In light of Mona’s gunshot injuries, including two on the left side of her
back, and the record, we cannot say there was a serious evidentiary dispute that
Perkins knowingly shot her, and we conclude the trial court did not abuse its
discretion in declining to give the proposed instruction on reckless homicide.
See Miller v. State, 720 N.E.2d 696, 703 (Ind. 1999) (no error in rejecting
proposed jury instruction on reckless homicide as lesser included offense of
murder; Miller shot at the victim, who was seated in a car, multiple times,
demonstrating evidence of a knowing killing rather than a reckless killing);
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 5 of 6 Sanders v. State, 704 N.E.2d 119, 122-123 (Ind. 1999) (holding that there was no
serious evidentiary dispute that the defendant knowingly shot the victim
because there was no evidence he was randomly shooting and he “must have
known that firing directly at a person at such close range is highly probable to
result in death”); cf. Young v. State, 699 N.E.2d 252, 256 (Ind. 1998) (serious
evidentiary dispute regarding whether Young committed murder or reckless
homicide when evidence suggested Young shot into a crowd of people and did
not specifically aim at the victim).
[10] We affirm Perkins’s conviction for murder.
[11] Affirmed
Najam, J., and Kirsch, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-2302 | July 14, 2020 Page 6 of 6