FILED Nov 09 2020, 8:32 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Stacy R. Uliana Curtis T. Hill, Jr. Jack Kenney Attorney General of Indiana Bargersville, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA John B. Larkin, November 9, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-2705 v. Appeal from the LaPorte Superior Court State of Indiana, The Honorable Roger Bradford, Appellee-Plaintiff. Special Judge Trial Court Cause No. 46D01-1212-FA-610
Brown, Judge.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 1 of 22 [1] John B. Larkin appeals his conviction and sentence for involuntary
manslaughter, raising several issues. We reverse. 1
Facts and Procedural History
[2] This is the third appeal in this case. In December 2012, police were dispatched
to the home of John and Stacey Larkin for a reported shooting. State v. Larkin,
100 N.E.3d 700, 701 (Ind. 2018), reh’g denied. Stacey sustained two fatal
gunshot wounds during a domestic dispute. Id. Police took Larkin into
custody for questioning and interrogated him even after he invoked his right to
counsel. Id. at 701-702. Larkin’s statements to police during those sessions
were later suppressed. Id. at 702. On December 13, 2012, the State charged
him with voluntary manslaughter as a class A felony, 2 and police conducted a
recorded interview. Id.
During a break, police left Larkin alone with his attorney, but kept the video recording equipment running, capturing Larkin and his attorney’s privileged communications. Larkin and his attorney discussed various aspects of the case including insurance, motivation and motive, possible charges, filing for divorce, the children, conditions of bond, the funeral, possible defenses, and the sequence of events on the evening of the shooting. Police and prosecutors
1 We heard virtual oral argument on October 22, 2020. We thank counsel for their well-prepared and engaging oral advocacy. 2 The charging information stated: On or about the 11th day of December, 2012, at . . . Long Beach, LaPorte County, Indiana, JOHN LARKIN, did knowingly or intentionally kill another human being, to-wit: Stac[e]y Simon Larkin; while acting under sudden heat, such killing being committed by means of a deadly weapon, to-wit: a handgun. Cause No. 46A05-1411-CR-550, Appellant’s Appendix I at 37.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 2 of 22 viewed the video and, therefore, saw and heard Larkin’s privileged discussion with counsel. A court reporter even transcribed the discussion and distributed it to the prosecutor’s office. Nearly one year later (December 2013), the State disclosed to Larkin that it had eavesdropped on privileged communications between him and his attorney.
Id.
[3] In July 2014, Larkin moved to dismiss the voluntary manslaughter charge citing
police and prosecutorial misconduct and later moved to disqualify the LaPorte
County Prosecutor’s Office and requested a special prosecutor. Id. He also
filed a motion to dismiss in September 2014 alleging the State’s lead detective
conspired to obstruct justice by having another officer change his statement
regarding that officer’s prior interaction with Stacey. Id. In October 2014, the
court denied Larkin’s motions but suppressed statements Larkin made to police
after he invoked the right to counsel but before counsel arrived and the recorded
conversation between Larkin and counsel. Id. Larkin initiated an interlocutory
appeal, and this Court dismissed the appeal as moot since LaPorte County
elected a new prosecutor in November 2014. Id. (citing Larkin v. State, 43
N.E.3d 1281, 1286-1287 (Ind. Ct. App. 2015)). The State moved for the
appointment of a special prosecutor, which the trial court granted. Id.
[4] In May 2016, Larkin moved for discharge under Ind. Criminal Rule 4(C) and to
dismiss the voluntary manslaughter charge, arguing the police and prosecutorial
misconduct made a fair trial impossible. Id. at 703. The trial court ultimately
granted Larkin’s motions, discharging him pursuant to Rule 4(C) and
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 3 of 22 dismissing the voluntary manslaughter charge. Id. The State appealed, and this
Court affirmed. Id. (citing State v. Larkin, 77 N.E.3d 237 (Ind. Ct. App. 2017),
reh’g denied, trans. granted, opinion vacated, 94 N.E.3d 700 (Ind. 2017)). The State
sought transfer. Id. On June 27, 2018, the Indiana Supreme Court issued a
decision which held:
In this case, there is no dispute that the State committed misconduct and on numerous occasions. First, police continued to question Larkin after he invoked his right to counsel. Then, Larkin’s private conversation with his attorney was recorded and listened to by several individuals at the prosecutor’s office. The situation was compounded when the conversation was transcribed and further distributed. Additionally, there is evidence in the record reflecting potential evidence tampering. That is, one officer instructed another to change his statement about his prior interaction with Larkin’s wife. There is also evidence that a piece of physical evidence, the safe containing the gun used to shoot Stacey, was tampered with while in the State’s custody and prior to allowing Larkin an opportunity to examine it.
Id. at 706. The Court held that the appropriate remedy for the State’s
misconduct was suppression of the tainted evidence for which the State could
not rebut the presumption of prejudice pursuant to State v. Taylor, 49 N.E.3d
1019 (Ind. 2016)). 100 N.E.3d at 706. It also held the Rule 4(C) motion for
discharge should have been denied. Id. at 707. The Court remanded for further
proceedings. Id. at 708.
[5] On May 7, 2019, Larkin filed a Motion to Dismiss for State Misconduct
alleging that, after the Indiana Supreme Court’s decision was issued, he
discovered the State withheld material evidence that the gun involved in the Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 4 of 22 shooting was defective and could discharge even when the safety was engaged
or without the trigger being pulled when the gun was dropped or bumped, and
he argued the withheld evidence went to the heart of his defense that he
accidentally shot Stacey while struggling to keep the gun away from her. The
court held a hearing on May 14, 2019.
[6] On July 2, 2019, the court issued an order stating that it had read the transcripts
of the questioning of Larkin after he requested an attorney and of the recorded
conversation between Larkin and his attorney, which were suppressed, and the
transcript of questioning of Larkin by the police and prosecuting attorney in the
presence of Larkin’s attorney. The court found the State gained no information
from the suppressed items that it did not receive in its interview with Larkin
when his attorney was present and, “[t]herefore, any such evidence obtained is
not tainted.” Appellant’s Appendix Volume II at 206. The court also stated
that, “[a]s to the gun defect, the defense is now fully aware of that and the
failure to disclose has no effect on the evidence.” Id.
[7] The court held a jury trial on September 9 through 13, 2019. The jury heard
evidence that in 2012 Larkin and Stacey lived together and had four children
who were nine to fourteen years old. The parties entered into a stipulation that
Stacey was hospitalized for three days in November 2000 for suicidal gestures
and ideations, depression, and anxiety, that she was diagnosed with major
depressive disorder, and that records indicate concern over hypomanic
behaviors. The parties also stipulated as to the various medications she had
been prescribed.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 5 of 22 [8] K., Larkin and Stacey’s oldest child, testified that she played the role of
therapist for her mother, she took care of her mother during the times she dealt
with her mental health, medications, and alcohol, and that her mother told her
she had placed a gun to her own head three times. K. testified that, in mid-
2012, her mother started taking a new medication and her behavior worsened,
she would drink alcohol, there were multiple instances where she observed
Stacey push or punch Larkin, and she observed Stacey scream and lock herself
in her room. K. testified that she would unlock the door using either a key or a
knife and enter the bedroom to take care of her mother. She also testified that,
when she was younger, she would unlock her mother’s computer and read
documents in which her mother wrote about her life to make sure that she was
okay. K. further indicated there was an incident in June 2012 during which
Stacey had taken a gun from the house, threatened suicide, and eventually
brought the gun back to the house and handed it to K. K. indicated she gave
the gun to Larkin, who placed it in the back of his car. Larkin stated in his
police interview it was in the family’s storage unit and told Stacey where he
placed the gun and that there was no reason to have it in the house.
[9] K. further testified there was an incident the weekend before July 4th during
which Larkin told Stacey she could not drive the family home from a festival
because she was intoxicated, Stacey screamed, cursed, and ran away, and
Larkin found her about thirty minutes later and was able to take her home. K.
also testified that, on July 8, 2012, there was a party at their house at which
Stacey was intoxicated, she heard Stacey yelling, Stacey struck Larkin and
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 6 of 22 broke a phone, Larkin called 911, and Stacey started to scratch herself, ran to
the garage, told K. to get in the car with her, and drove away with K. K.
testified that, while in the vehicle, the police called and told Stacey to turn
around, Stacey did a U-turn, while she was intoxicated and K. held the steering
wheel, and after they arrived home the police administered field sobriety tests.
Stacey was arrested, and Larkin later wrote a letter stating that he did not wish
to press charges for any battery by Stacey and that his hope was that she would
obtain the assistance she needed. K. testified that, in September 2012, there
was a family meeting during which Larkin told Stacey that he wanted her to
participate in a treatment program and that, if she did not, he would divorce
her. K. also testified that, during the week before she died, Stacey was very
angry and was walling herself off, and deleting files from her computer.
[10] Q., another of Larkin and Stacey’s children, testified that Stacey became more
agitated and depressed as the year 2012 progressed. Q. testified as to Stacey’s
changing demeanor in the summer of 2012, the incidents in July 2012, and the
family meeting in September 2012. Q. testified that the family bought Stacey a
birthday cake in September, she threw the cake in the garbage, and started
screaming at them. Q. kept a key which unlocked many of the doors in the
house and would sometimes unlock the door to Stacey’s room to check on her.
[11] An attorney testified that Larkin retained her and she spoke with him in 2011
and 2012 about a dissolution of his marriage and his concerns about Stacey’s
well-being and the safety of his children in the home with Stacey. She testified
that Larkin called her when Stacey took the handgun and left the home and that
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 7 of 22 she told him that he needed to call the police. She also indicated that, on
December 10, 2012, Larkin contacted her and stated he wished to pursue a
divorce and desired to file quickly.
[12] The jury heard testimony that, on December 11, 2012, Larkin asked Stacey to
dinner. K. testified that her mother was in South Bend, called her, and said she
did not want to go to dinner with Larkin. K. testified that Stacey later arrived
home, walked directly to her room and into the closet and slammed the door,
and that she heard “weird noises like things being thrown around.” Transcript
Volume IV at 243. She testified that Larkin brought chicken home for the
children, and according to Larkin’s interview statement, he walked inside with
the chicken dinner, and Stacey walked out the door and said “f--- you” and
“I’m leaving and I’m never coming back.” Exhibits Volume X at 99.3 A little
while later while Larkin and Q. were in the kitchen, Stacey returned to the
house. According to Larkin, Stacey walked by and “gave [him] the finger” and
walked to their bedroom. Id. at 100. Q. testified that he observed Stacey and
she “looked like she was determined, like she just looked agitated and . . .
determined to do something” and that she “sped-walked” to her room.
Transcript Volume V at 23. At some point, Q. unlocked the door to check on
her, and Larkin said that he was going to talk with Stacey. According to
Larkin, he told Stacey that he had instructed his attorney to file for divorce and
3 The December 13, 2012 interview was admitted at trial. A transcript of the interview was submitted prior to the May 14, 2019 hearing.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 8 of 22 she would not have custody of their children, and that she cursed at him and
said he would not get custody.
[13] K. testified that she walked into her parents’ bathroom and said she was going
to take a shower, her father said “that’s fine,” and her mother, who was in the
closet, started screaming “Get out. Get the hell out.” Transcript Volume IV at
245. K. testified she went to another bathroom. Larkin stated that he walked
out and told K. not to worry, K. walked away to take a shower, he returned to
where Stacey was in the walk-in closet, and he heard a “beep” which he
recognized as the biometric safe in the closet being opened. Exhibits Volume X
at 113. Larkin indicated only he and Stacey were able to open the safe, and
that he saw the butt of the gun and Stacey’s facial expression, she reached for
the gun and placed her hand on it, and he reached over her, grabbed the gun,
and backed up to near the doorway. He reported that he said “[w]hat is your f--
--- problem” and that she “just had this blank stare.” Id. at 113-114. Larkin
stated that he had believed the gun was in storage and that Stacey must have
retrieved it because she was the only other person with a key to the storage unit.
He stated that he held the gun but did not point it at Stacey, he looked down at
the gun to see if there was a round in it but was unable to do so, he told Stacey
that she was going back to jail and he was calling the police, she said “no, no,
no, no, you’re not doing that,” and he said “yes, I am.” Id. at 121.
[14] Larkin stated that, at that point, Stacey ran or charged at him, he fell sideways
and down, Stacey fell as well, and the gun discharged when they went down.
He stated he was scared to death when the gun discharged. When asked “you
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 9 of 22 obviously had your finger on the trigger,” Larkin replied: “I was not planning
on it, but, yeah.” Id. at 122. He indicated he did not believe she had been shot.
He stated that Stacey “sprung back up” or “popped up” and started to grab his
head and scratch his face, he said “stop stop stop” and “no, no, no” and pushed
her toward the corner, and “when I came down on her the gun discharged.” Id.
at 114, 123, 126, 148. He stated “I pretty much tried to get her so I could get
her to stop [and] she starts scratching my face and I literally just jump on top of
her to put her in the corner and I go enough.” Id. at 125-126. When asked
“[s]o you push her into that corner,” Larkin answered “I certainly do.” Id. at
126. He stated “I’m pushing like this and I make – didn’t want to lose the gun
so I came down and pushed her like that,” and the gun discharged. Id. When
asked if his finger was on the trigger, he stated that he did not know. Stacey did
not move, and Larkin immediately called 911.
[15] The jury heard testimony that only female DNA was found on a swab taken
from the door of the biometric safe. It also heard testimony that swabs of the
gun were taken and Stacey could not be excluded as the minor profile. Larkin
stated in his interview that he did not know what Stacey was capable of doing
and whether she would want to kill herself or him. The jury heard testimony
that Stacey died from the gunshot wounds and that theoretically either wound
could have been fatal. It heard that she had one gunshot wound which entered
her upper chest and another which entered her left back. It heard testimony,
with respect to the wound to her chest, that the muzzle of the weapon was in
contact with her sweater which was in contact with her skin when it discharged
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 10 of 22 and, with respect to the wound to her back, that the muzzle appeared to be in
contact with her sweater which was less than one inch and up to a maximum of
several inches from her back when it discharged. It heard testimony there were
different scenarios in which Stacey could have been shot and one possibility
was that she was shot while facing and on top of Larkin. The shot which
entered her back was angled downward slightly. Stacey had abrasions on her
hands, scratches in multiple locations, and other small bruises or contusions on
both her lower and upper extremities. Larkin had approximately a half dozen
scratches on his face and a cut to his hand.
[16] The jury also heard testimony that the model of the handgun had been recalled
because it could discharge upon impact after being dropped without the trigger
being pulled and the trigger could be pulled to fire the gun while the safety
appeared to be engaged but was not fully engaged. On September 12, 2019,
which was the fourth day of trial, the prosecutor requested the court instruct the
jury on the offense of reckless homicide, and after hearing arguments, the court
denied the motion.
[17] On September 13, 2019, after the State and defense had rested their cases, the
prosecutor requested that the trial court instruct the jury on the offense of
involuntary manslaughter. The prosecutor argued: “I think this is factually
lesser-included certainly from the evidence. There isn’t any question that
[Larkin], as he admits, pushed the victim into a corner and surely that is
touching in a rude, insolent, or angry manner.” Transcript Volume V at 233.
Larkin’s defense counsel argued the State’s charging information did not allege
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 11 of 22 that Larkin committed voluntary manslaughter by means of a battery and thus
the State was foreclosed from seeking an involuntary manslaughter instruction.
The court granted the State’s request and instructed the jury on the offenses of
voluntary manslaughter and involuntary manslaughter. 4
4 The instruction on voluntary manslaughter stated in part:
A person who knowingly or intentionally kills another human being while acting under sudden heat commits Voluntary Manslaughter, a Class B Felony. However, the offense is a Class A Felony if it is committed by means of a deadly weapon. . . . Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt: 1. The Defendant, John B. Larkin; 2. Knowingly or intentionally; 3. Killed; 4. Stac[e]y Simon Larkin; 5. By means of a deadly weapon. If the State failed to prove elements 1 through 5 beyond a reasonable doubt, you must find the Defendant not guilty of voluntary manslaughter, a Class A Felony. Appellant’s Appendix Volume IV at 21. The instruction on involuntary manslaughter stated in part:
. . . . If the State proves the Defendant guilty of Voluntary Manslaughter, you need not consider the included crime. However, if the State fails to prove the Defendant committed Voluntary Manslaughter, you may consider whether the Defendant committed Involuntary Manslaughter.
***** A person who kills another human being while committing battery commits involuntary manslaughter, a Class C felony. Before you may convict the Defendant, the State must have proved each of the following elements: 1. The Defendant, John Larkin 2. killed, Stac[e]y Simon Larkin, a human being 3. while committing battery, which is defined as follows: 4. knowingly or intentionally 5. touching another person 6. in a rude insolent or angry manner If the State did prove each of these elements beyond a reasonable doubt, you may find the Defendant guilty of involuntary manslaughter, a Class C felony. You must not find the Defendant guilty of more than one crime.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 12 of 22 [18] During closing, the prosecutor argued “involuntary manslaughter is a different
– it’s not a charge, it’s a lesser-included offense of manslaughter” and “the
difference is this: In manslaughter, he has to knowingly kill her; and
involuntary manslaughter, he has to knowingly touch her in a rude, insolent, or
angry manner.” Transcript Volume V at 245-246. The prosecutor argued “if
there’s some reason you were to believe that he didn’t intend to kill her but you
do believe he did intend to push her, and she ultimately was killed, then he
would not be guilty of voluntary manslaughter if you didn’t believe he
intentionally killed her but you would believe – he would be guilty of
involuntary manslaughter.” Id. at 246. He argued, “if you believe it’s
reasonable that this gun went off accidently twice, he’s not guilty of voluntary
manslaughter at least.” Id. at 250.
[19] Larkin’s defense counsel argued Larkin shot Stacey accidentally, he did not
knowingly shoot her, a person has the right to use deadly force if he reasonably
believes the force is necessary to prevent serious bodily injury to him or
another, and the State did not prove that he did not act in self-defense. With
respect to involuntary manslaughter, defense counsel argued that Larkin’s self-
defense claim was also a defense to involuntary manslaughter and that he was
reasonably fearful.
Id. at 22.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 13 of 22 [20] The prosecutor argued in rebuttal “I’m reluctant to argue it [involuntary
manslaughter] because the evidence proves that he is guilty of voluntary
manslaughter as charged” and “[t]here can be no question, if for some reason
you determine he’s not guilty of voluntary, there’d be no question that he’s
guilty of involuntary manslaughter. He admitted that he pushed her.”
Transcript Volume VI at 52. The prosecutor argued Larkin intentionally pulled
the trigger and he did not accidentally shoot Stacey twice.
[21] The record includes a question submitted by the presiding juror to the trial court
which asked: “Can we have a more thorough definition of battery and the
elements involved.” 5 Appellant’s Appendix Volume IV at 34. Following
deliberation, the jury found Larkin guilty of involuntary manslaughter as a class
C felony.
[22] On October 4, 2019, Larkin filed a motion to vacate the judgment arguing that,
for over six years, the State could have amended the information to charge him
with involuntary manslaughter or some form of battery but never did so; and on
September 13, 2019, minutes before final instructions and closing arguments, he
was provided a copy of the State’s proposed jury instruction on involuntary
manslaughter based on a battery, and he objected. He argued that his counsel
was unprepared to explain to the jury how self-defense applied differently to
non-lethal force than to lethal force; the jury deliberated for over twelve hours
5 Larkin’s brief states that “[t]he trial court did not provide them one.” Appellant’s Brief at 14.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 14 of 22 and asked for clarification of the definition of battery; involuntary manslaughter
was not factually included in the voluntary manslaughter offense; and the
involuntary manslaughter instruction denied him his right to fair notice and was
not based on the same facts alleged in the voluntary manslaughter charge.
[23] Following a sentencing hearing, the court issued an order denying Larkin’s
motion to vacate the judgment, finding the aggravating circumstance was that
the weapon involved was a handgun and the mitigating circumstances were
Larkin’s lack of criminal history and hardship on his dependents, finding the
mitigating circumstances outweighed the aggravating circumstance, and
sentencing Larkin to two years. The court ordered that the sentence be stayed
until the completion of the appeal.
Discussion
[24] We first address whether the trial court erred in instructing the jury on
involuntary manslaughter. A trial court must engage in a three-step analysis
when determining whether to instruct a jury on a lesser included offense of the
crime charged. Isom v. State, 31 N.E.3d 469, 485 (Ind. 2015) (citing Wright v.
State, 658 N.E.2d 563, 566-567 (Ind. 1995)). First, the court must consider
whether the alleged lesser included offense is an inherently included offense to
the principal charge. Id. If it is not, then the court must decide whether the
alleged lesser included offense is a factually included offense to the principal
charge. Id. Finally, if the alleged lesser included offense is either an inherently
or factually included offense to the principal charge, then the court must
determine if there is a serious evidentiary dispute regarding the element that Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 15 of 22 distinguishes the lesser offense from the principal charge. Id. If such a dispute
is present, the court must give the instruction on the lesser included offense. Id.
[25] Larkin maintains the trial court should not have instructed the jury on
involuntary manslaughter. He argues involuntary manslaughter was neither an
inherently nor a factually included lesser offense of the charged voluntary
manslaughter offense. He points out that the charging information made no
reference to a battery accomplishing the killing and that it tracked the voluntary
manslaughter statute. He further argues the involuntary manslaughter
instruction denied him his right to fair notice of the charges against him. He
argues his defense to the shooting was that it was an accident in the course of
self-defense and that, minutes before closing argument, he was told he was
defending against a battery as well as against the shooting, and he observes the
prosecutor argued in closing that he was guilty of involuntary manslaughter
because he pushed Stacey.
[26] The State argues that, “[w]hen a charging information alleges the use of a
handgun, it has alleged a touching that satisfies the elements of battery so that
involuntary manslaughter would be a factually-included offense of murder.”
Appellee’s Brief at 16-17. It also argues the involuntary manslaughter
instruction was supported by the evidence and asserts: “Here, there were two
distinct acts from which the jury could find [Larkin] killed Stacey while
committing battery—the first bullet strike and the pushing with the muzzle of
the gun that resulted in the second bullet strike.” Id. at 17.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 16 of 22 [27] A person who knowingly or intentionally kills another human being commits
murder. Ind. Code § 35-42-1-1. A person who knowingly or intentionally kills
another human being while acting under sudden heat commits voluntary
manslaughter.6 Ind. Code § 35-42-1-3(a). The existence of sudden heat is a
mitigating factor that reduces what otherwise would be murder under Ind.
Code § 35-42-1-1 to voluntary manslaughter. Ind. Code § 35-42-1-3(b).
[28] A person commits involuntary manslaughter when the person “kills another
human being while committing or attempting to commit . . . battery . . . .” Ind.
Code § 35-42-1-4. A person commits battery when the person knowingly or
intentionally touches another person in a rude, insolent, or angry manner. Ind.
Code § 35-42-2-1.
[29] “The defendant’s intent—the intent to kill or the intent to batter—distinguishes
murder from involuntary manslaughter.” Norris v. State, 943 N.E.2d 362, 368
(Ind. Ct. App. 2011) (citing Wilson v. State, 765 N.E.2d 1265, 1271-1272 (Ind.
2002) (“The only element distinguishing murder from involuntary
manslaughter is what the defendant intended to do—batter or kill.”)), trans.
denied. Similarly, the defendant’s intent (to kill or to batter) distinguishes the
offenses of voluntary manslaughter and involuntary manslaughter. See Ind.
Code § 35-42-1-3; Ind. Code § 35-42-1-4. “Involuntary manslaughter
6 “Sudden heat occurs when a defendant is provoked by anger, rage, resentment, or terror, to a degree sufficient to obscure the reason of an ordinary person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005).
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 17 of 22 contemplates an incidental killing of another.” Blackburn v. State, 130 N.E.3d
1207, 1212 (Ind. Ct. App. 2019).
[30] Involuntary manslaughter is not an inherently included lesser offense of
murder. Wilson, 765 N.E.2d at 1271. See Evans v. State, 727 N.E.2d 1072, 1081
(Ind. 2000); Wright, 658 N.E.2d at 569; see also Champlain v. State, 681 N.E.2d
696, 702 (Ind. 1997) (comparing Ind. Code § 35-42-1-1 (1993), with id. § 35-42-
1-4).”). Similarly, involuntary manslaughter is not an inherently included lesser
offense of voluntary manslaughter. See Ind. Code § 35-42-1-3; Ind. Code § 35-
42-1-4.
[31] While involuntary manslaughter is not an inherently included lesser offense of
murder, it may be a “factually included” lesser offense, but only where “the
charging instrument alleges that a battery accomplished the killing.” Wilson,
765 N.E.2d at 1271; see Wright, 658 N.E.2d at 567 (observing, “[i]f the charging
instrument alleges that the means used to commit the crime charged include all
of the elements of the alleged lesser included offense, then the alleged lesser
included offense is factually included in the crime charged”); Sandilla v. State,
603 N.E.2d 1384, 1387 (Ind. Ct. App. 1992) (noting the alleged battery must
have caused the victim’s death to support the giving of an involuntary
manslaughter instruction), trans. denied.
[32] In this case, Stacey died as a result of gunshot wounds on December 11, 2012.
The information filed against Larkin two days later charged him with voluntary
manslaughter under Ind. Code § 35-42-1-3 and alleged:
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 18 of 22 On or about the 11th day of December, 2012, at . . . Long Beach, LaPorte County, Indiana, JOHN LARKIN, did knowingly or intentionally kill another human being, to-wit: Stac[e]y Simon Larkin; while acting under sudden heat, such killing being committed by means of a deadly weapon, to-wit: a handgun.
Cause No. 46A05-1411-CR-550, Appellant’s Appendix I at 37. While a person
may shoot another person with an intent to batter rather than with an intent to
kill, see Champlain, 681 N.E.2d at 702 (observing a shooting “can in some
situations be classified as a battery”), 7 we conclude the charging instrument
here did not make such an allegation. The State does not assert that it
advanced an argument that Larkin intended to commit a battery by shooting
Stacey. Rather, in requesting the involuntary manslaughter instruction, the
prosecutor argued Larkin pushed Stacey and that was a battery. See Transcript
Volume V at 233 (prosecutor arguing: “I think this is factually lesser-included
certainly from the evidence. There isn’t any question that the Defendant, as he
admits, pushed the victim into a corner and surely that is touching in a rude,
insolent, or angry manner.”). Additionally, the prosecutor argued to the jury in
closing that Larkin intended to commit a battery by pushing Stacey. See id. at
246 (prosecutor arguing “if . . . you were to believe that he . . . did intend to push
her, . . . then . . . he would be guilty of involuntary manslaughter”) (emphasis
added); Transcript Volume VI at 52 (prosecutor arguing “[h]e admitted that he
pushed her”) (emphasis added). Nor can we conclude the charging instrument
7 Champlain, as an example, referred to Lynch v. State, 571 N.E.2d 537 (Ind. 1991), in which the defendant testified that he had planned to shoot and wound the victim.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 19 of 22 made an allegation that Larkin committed battery by pushing Stacey. Stacey
died as a result of her gunshot wounds. The charging information referred to a
handgun. It did not allege all of the elements of a battery by pushing. We
decline to conclude that the mere assertion that the charged offense was
committed by means of a handgun, without more, automatically means the
information also asserted a battery. The charging instrument did not assert a
battery or incidental killing.
[33] Because involuntary manslaughter was not an inherently or factually included
lesser offense of the charged crime, the jury should not have received an
involuntary manslaughter instruction. See Champlain, 681 N.E.2d at 702
(holding “[b]ecause the information did not assert a battery, involuntary
manslaughter in this case was not a factually included lesser offense” and the
trial court did not err in refusing to give the instruction). Cf. Galindo v. State, 62
N.E.3d 1285, 1286-1288 (Ind. Ct. App. 2016) (finding involuntary
manslaughter was a factually lesser included offense of murder “in light of the
charging information, which alleged [the defendant] caused [the victim’s] death
by battering her”8). See also Sandilla, 603 N.E.2d at 1386-1387 (finding battery
was a lesser included offense of involuntary manslaughter and that the charging
8 The charging information in Galindo alleged the defendant “did knowingly kill another human being . . . by a combination of strangulation and blunt force for injury to her head.” Cause No. 32A05-1607-CR-1541, Appellant’s Appendix II at 10.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 20 of 22 instrument alleged the defendants killed the victim “while committing or
attempting to commit the crime of Battery”).
[34] Moreover, the prosecutor did not request the involuntary manslaughter
instruction until after the evidence was closed and just prior to closing
argument. In every criminal case, the accused is entitled to clear notice of the
charge against which he must defend at trial. Wright, 658 N.E.2d at 565 (citing
Ind. Const. art 1, § 13). Defendants are entitled to limit their defense to the
crimes charged. Young v. State, 30 N.E.3d 719, 720 (Ind. 2015). If there is
reasonable doubt as to what the charge includes, such doubt must be resolved in
favor of the defendant. Id. at 723. Here, Stacey died as a result of being shot,
and the charging instrument alleged Larkin knowingly killed her by means of a
handgun. Following the close of the evidence, the trial court ruled it would
instruct the jury on involuntary manslaughter, and the prosecutor argued
Larkin was guilty of involuntary manslaughter and “admitted that he pushed
her.” Transcript Volume VI at 52. During the trial, Larkin did not challenge
evidence that he pushed Stacey. We conclude there is, at a minimum,
reasonable doubt as to whether the State’s charging instrument provided Larkin
with fair notice of the charge of which he was eventually convicted. We are
constrained to resolve any such doubt in Larkin’s favor. See Young, 30 N.E.3d
at 723. We conclude that the trial court erred in instructing the jury on
involuntary manslaughter. See id. at 720 (holding attempted aggravated battery
by beating “was not just a lesser offense” than the charged murder by shooting
but was “a completely different offense” based on different “means used” than
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 21 of 22 alleged in the informations, which deprived the defendants of fair notice to
extend their defense to the lesser charge, reversing the defendants’ convictions,
and remanding for entry of judgments of acquittal). 9
[35] For the foregoing reasons, we reverse Larkin’s conviction for involuntary
manslaughter and remand with instructions to enter a judgment of acquittal and
order that he be discharged.
[36] Reversed and remanded.
May, J., and Tavitas, J., concur.
9 Larkin additionally argues the State failed to present any evidence from which the jury could infer that he was not acting in self-defense when he pushed Stacey. Based on the lack of sufficient evidence to contradict his statement of self-defense, we are compelled to find the State did not meet its burden of negating his self- defense claim beyond a reasonable doubt. See Cobbs v. State, 528 N.E.2d 62 (Ind. 1988) (“Because of the lack of evidence in this case to contradict appellant’s statement of self-defense, and because there is a total lack of evidence to support any theory of the shooting other than appellant’s explanation, this Court is compelled to reverse this conviction. In view of the fact his conviction is being reversed because of insufficient evidence, the appellant must be discharged.”), reh’g denied.
Court of Appeals of Indiana | Opinion 19A-CR-2705 | November 9, 2020 Page 22 of 22