MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Dec 20 2018, 6:06 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Philip R. Skodinski Curtis T. Hill, Jr. South Bend, Indiana Attorney General of Indiana Ellen H. Meilaender Supervising Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Joshua Walker, December 20, 2018 Appellant-Defendant, Court of Appeals Case No. 18A-CR-1140 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff. Miller, Judge Trial Court Cause No. 71D01-1611-MR-8
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 1 of 15 [1] Joshua Walker appeals his conviction for murder. Walker raises one issue
which we revise and restate as whether the trial court abused its discretion in
not instructing the jury as to the offenses of voluntary manslaughter,
involuntary manslaughter, and reckless homicide. We affirm.
Facts and Procedural History
[2] In November 2016, Walker lived with Ronald Bacsa and Lonnie White in a
house in South Bend, Indiana. On the morning of November 7, 2016, Walker
was in a bedroom after not having slept all night and “was a little bit irritable
and frustrated from working” for his landlord, and Bacsa, who was stumbling
and appeared to Walker to be intoxicated, said “You S.O.B.” as he walked past
the bedroom to the bathroom. Transcript Volume 1 at 119-220. Bacsa exited
the bathroom, went into the living room, sat on a green chair and began to
watch television, and at some point “hollered out, ‘F--- you, go to hell,’ real
loud.” Id. at 220. At that point, Walker “stormed in the living room and
pushed [Bacsa] down out of the chair.” Id. at 221. Walker was upset with
Bacsa for being intoxicated and had been upset with him for his hygiene. While
Bacsa was on the floor, Walker “stomped him with [his] heel on the right side
of [Bacsa’s] face and the back of [Bacsa’s] head hit off of the floor.” Id. at 224.
After that, Walker “tried to refrain,” “backed off for a minute,” and “tried to
refrain from harming him,” but “that’s when [he] decided [to] pick up the
chair.” Id. Walker then picked up the green chair which had a metal frame,
pulled it off of its base, and threw the chair on Bacsa, who was unconscious.
Walker then picked up the green chair and set it aside, grabbed a wooden chair,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 2 of 15 and “smacked” Bacsa in the lower back with it. Id. at 226. Using his foot,
Walker again “stomped” on Bacsa between his waist and lower rib cage. Id.
Walker “pick[ed] [his] knee up in alignment . . . straight up and down and
brought [his] foot down on [Bacsa’s] side.” Id. at 227. Walker was outraged
and went into the bathroom and turned on the bath water, returned to the living
room and removed Bacsa’s clothing with the intention of moving him into the
bathtub, grabbed Bacsa by his hair, and hit him “quite hard” with the palm of
his hand at least four or five times on the side of the head and mouth. Id. at
228. Walker dragged Bacsa by his ankles into the bathroom, tried to lift him
but could not, and left him on the floor. Walker smoked a cigarette, left the
house, and walked to a church and had breakfast.
[3] At some point, White arrived home and discovered the naked Bacsa on the
floor of the bathroom and went to a neighbor’s house to ask the neighbor to call
the police. Paramedics arrived and discovered that Bacsa was dead and cold to
the touch, and had a significant blunt force injury to his head. When Walker
arrived home, he approached law enforcement officers standing in the street
outside the house and said, “I’m the suspect and he’s the victim,” and pointed
to the house. Id. at 42. DNA testing revealed that blood found on the green
and wooden chairs was consistent with Bacsa’s DNA. Bacsa suffered
numerous fractured ribs, a punctured lung, and bleeding around his brain and
his death was caused by the blunt force trauma injuries.
[4] On November 9, 2016, the State charged Walker with the murder of Bacsa. At
the jury trial, White testified that Bacsa was an alcoholic. Walker’s mother
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 3 of 15 testified that Walker experienced a psychotic break during his senior year of
high school in 1997, was placed on medications, and was hospitalized again the
following year. She testified Walker was treated for schizophrenia, there were
times he was very paranoid, and he was a patient at Madison Center until it
closed in 2010 and later at Oaklawn. She stated that he was at Madison Manor
for about twenty-two months in a very structured environment.
[5] Walker testified that he was hospitalized in 2015, had not been eating properly,
was taking an antipsychotic medication, and that “I was functioning okay. It
was just sometimes the anger and the disappointment in myself and the, ah,
rebellious type of attitude, you know, sometimes having, what I have, and, ah,
just, ah, was having difficulties.” Id. at 208. Walker further testified that he
attacked Bacsa. When asked “[w]hy did you do that,” Walker answered that
he was “pretty well angry and aggravated and out of control” and “[i]t was just
the fact that he was, ah, possibly, it’s the intoxication part of it, I mean, I’ve
been a little bit upset with him and prior to this happening with his hygiene and
his alcohol and just kind of putting up with, just putting up with him on a daily
basis.” Id. at 221-222. When asked if Bacsa said anything to him when he
stormed into the living room, Walker replied “He wasn’t really paying too
much attention. He was still in the process of, he, he claims he communicates
with his relatives that are dead and gone,” “He has hallucinations and delusion
and, ah, he, apparently, talks to himself, or talks out loud. So, I believe that’s
what he was doing,” and “He does this often, but at times I just ignore it
because I know that’s his problem, but at this, particular time, I just lost control
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 4 of 15 of myself.” Id. at 223-224. Walker testified that he pushed Bacsa out of the
chair and “[t]hat’s when I lifted my foot and my leg up and stomped him with
my heel on the right side of his face and the back of his head hit off of the
floor.” Id. at 224.
[6] When asked “[w]ell, after you did that to him, why didn’t you just go back to
your bedroom,” he replied “I tried to refrain. I backed off for a minute. I didn’t
want to hurt him and at the time I thought, you know, I tried to refrain from
harming him. But that’s when I decided, you know, pick up, pick up the
chair.” Id. When asked “[w]hen you say you tried to refrain, why didn’t you
just refrain,” he answered “I did try, I mean, something in me that told me to
back off and leave him the way he was there on the floor, evidently, it just, I
continued, continued to assault him, attack him.” Id. at 224-225. Walker
testified that “I necessarily picked [the green chair] up and, kind of, ah, dropped
it down on him. I didn’t necessarily throw it from a high point, I, basically,
took some force and used my arms into it.” Id. at 225. He testified he set the
green chair aside, grabbed the wooden chair, smacked Bacsa with it, and then
using his foot “stomped him in his left-hand side in, like, I don’t know, what’s
there, the kidneys, or whatnot, in the side the lung area.” Id. at 226.
[7] When asked “when you were doing that stuff to him, were you trying to kill
him,” Walker answered “I believe, that I was trying to harm him, and I,
necessarily, I, it wasn’t, like, I did want to harm him. But I know that I was
harming him and, um, I don’t know if I really intended, like they say, intended,
or knowingly, you know, wanted to do this, but evidently, I, I guess, that’s the
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 5 of 15 right term.” Id. at 235. When asked “you haven’t had any delusions then,
right,” he answered “No. I was functioning alright. I was taking my
medication; my antipsychotic, I was taking. . . . So, at the time, I was
functioning okay. It was just, me, and [the landlord] and the circumstances I
was living in, you know, was kind of an unhealthy environment. I shouldn’t
even been there.” Id. at 238.
[8] On cross-examination, when asked if he is able to know right from wrong,
Walker replied “I can make them decisions, yes.” Id. at 243. Walker indicated
he was not afraid of Bacsa. When asked if Bacsa was engaged in a fight,
Walker replied “No. He was minding his own business. He was directing them
comments and obscenities to his, ah, evidently, he believes, he . . . talks to his
relatives . . . . And he was having a little bit of a hard time that morning
because of his intoxication and his alcohol level.” Id. at 244. Walker testified
“[i]t’s not that I wanted to kill him, or hurt him badly. It’s just because it’s the
situation and how it was happening, I could not stop myself, or refrain myself
from harming him.” Id. When asked “you were aware . . . about the high
probability that you were killing him,” he replied “Yes, I realized that; I was.”
Id. at 247-248. When asked “so, you’re saying that you knowingly killed Ron
Bacsa,” Walker replied: “Did I knowingly, as I think about it? I’m not, like I
said, good with words and description or what they mean, but, as far as, you
using that term, the judge has used that term, it sounds proper.” Id. at 250.
[9] On re-direct, when asked “[w]hen you were doing it, did you know that you
were killing him,” Walker replied “I believe, I possibly could have been
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 6 of 15 knowing that I was killing him, as far as, yeah, due to the fact that it was
violent.” Transcript Volume 2 at 4. When asked “[s]o, you were intending to
kill him,” he stated “I’m not necessarily sure if I was intending to kill him, but,
as far as, my outrage and actions and stuff, I pretty much, I guess, along them
lines, I was, you know, I don’t know if I was trying to kill him. It was,
basically, I was just trying to hurt him.” Id. When asked “[w]ell, there’s a
difference between trying to hurt someone and trying to kill them,” Walker
stated “[y]eah, I know,” and when asked “[s]o, what were you trying to do,” he
stated “[t]o be honest with you, I, I really, I can’t answer that question, too,
honestly, I mean, it’s kind of like a 50-50, but, I mean, ah, the man, you know,
did not deserve this and, I mean, ah, was I trying to kill him? No.” Id.
[10] Evidence was presented that two doctors who assessed Walker determined that
he was able to appreciate the wrongfulness of his conduct and was not insane at
the time of the offense. Walker proposed jury instructions on voluntary
manslaughter, involuntary manslaughter, and reckless homicide. The court
stated that anger alone is not sufficient to support an instruction on sudden heat
and that this is especially true when the words at issue are not intentionally
designed to provoke the defendant. The court stated there was nothing Bacsa
did that was designed to provoke Walker. The court further stated there was no
evidence of recklessness. It noted that Walker bludgeoned Bacsa and went back
and bludgeoned him some more and stated it did not know where the serious
evidentiary dispute arose. The court declined to give Walker’s proposed
instructions and instructed the jury on his insanity defense. The jury found
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 7 of 15 Walker guilty but mentally ill of murder, and the court sentenced him to forty-
five years.
Discussion
[11] The issue is whether the trial court abused its discretion in not giving Walker’s
proposed instructions on voluntary manslaughter, involuntary manslaughter,
and reckless homicide to the jury. Walker argues that “[w]e should judge [his]
actions in the backdrop of his mental illness” and that “[e]ven for a criminal,
this is bizarre behavior.” Appellant’s Brief at 8. He argues the voluntary
manslaughter instruction should have been given in light of his mental health
and that Bacsa’s actions of being intoxicated and cursing constituted
provocation. He contends the court should have given the instruction on
involuntary manslaughter “since it should have been within the jury’s preview
[sic] to determine whether [he] meant to harm Bacsa, or meant to kill him.” Id.
He also argues the court should have given the instruction on reckless homicide
“since there was an evidentiary dispute as to whether [he] acted recklessly, or
acted so as to knowingly kill Bacsa.” Id.
[12] The State maintains that the trial court properly rejected the proposed
instructions. With respect to the proposed instruction on voluntary
manslaughter, the State argues “[b]eing in the presence of a person who is
intoxicated and talking to himself out loud using profanity does not make an
ordinary person so angry as to render him incapable of reflection,” “[t]he fact
that [Walker’s] mental illness may have made him subjectively more easily
frustrated or aggravated by this behavior than the ordinary person would be Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 8 of 15 does not matter,” and there was no provoking conduct sufficient to constitute
sudden heat. Appellee’s Brief at 14. With respect to the proposed involuntary
manslaughter instruction, the State cites to Champlain v. State, 681 N.E.2d 696
(Ind. 1997), and argues that the charging information does not contain any
reference to a battery. The State also argues the court properly concluded there
was no serious evidentiary dispute as to whether Walker acted knowingly when
he killed Bacsa and thus the court properly refused to give an instruction on
reckless homicide.
[13] We apply a three-step analysis in determining whether a defendant was entitled
to an instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d
563, 566-567 (Ind. 1995). We must determine: whether the lesser-included
offense is inherently included in the crime charged; if not, whether the lesser-
included offense is factually included in the crime charged; and if either,
whether there is a serious evidentiary dispute whereby the jury could conclude
the lesser offense was committed but not the greater offense. Id. If a 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).
[14] A person commits murder when the person knowingly or intentionally kills
another human being. Ind. Code § 35-42-1-1. A person commits voluntary
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 9 of 15 manslaughter when the person knowingly or intentionally kills another human
being “while acting under sudden heat.” Ind. Code § 35-42-1-3(a). Sudden
heat is a mitigating factor that reduces what otherwise would be murder to
voluntary manslaughter. Ind. Code § 35-42-1-3(b). “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). “[N]either mere words nor anger, without
more, provide sufficient provocation.” Id. Also, sudden heat can be negated by
a showing that a sufficient “cooling off period” elapsed between the
provocation and the homicide. Morrison v. State, 588 N.E.2d 527, 531-532 (Ind.
Ct. App. 1992). Voluntary manslaughter is inherently included in murder.
Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997), reh’g denied.
[15] The evidence presented reveals that Walker became aggravated with Bacsa and
that Bacsa was intoxicated and talking loudly. According to Walker, Bacsa was
minding his own business and directing his comments and obscenities to his
dead relatives. Walker was upset with Bacsa for being intoxicated, yelling, and
cursing, and had been upset with him regarding his hygiene. Walker went into
the living room, pushed Bacsa from a chair to the floor, and using his heel
stomped on Bacsa’s face. Walker testified that, at that point, he “tried to
refrain” and “backed off for a minute,” but that was when he decided to pick up
a chair, and he resumed his vicious attack. Transcript Volume 1 at 224. He
struck Bacsa, who was unconscious, with two chairs and then, using his foot,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 10 of 15 again stomped on Bacsa, this time between his waist and rib cage. Walker
removed Bacsa’s clothes, dragged him into the bathroom, and again struck him.
Walker referred to his attack as “violent.” Transcript Volume 2 at 4. The
photographic evidence depicts Bacsa’s various injuries as well as the scene of
the assault and chairs used to strike him. Bacsa suffered numerous fractured
ribs, a punctured lung, and bleeding around his brain and died as a result of the
blunt force trauma injuries. To the extent the evidence shows that Walker was
angry with Bacsa, we note that anger without more does not provide sufficient
provocation. See Conner, 829 N.E.2d at 24. Further, Walker’s testimony
reveals that he did not believe Bacsa was directing his comments toward him.
Walker does not point to actions of Bacsa which could constitute provocation
to a degree sufficient to render him incapable of reflection. Based upon the
record, we conclude that there was no serious evidentiary dispute regarding
whether Walker committed the offense causing the death of Bacsa while acting
in sudden heat. The trial court did not abuse its discretion in declining to give
Walker’s proposed instruction on voluntary manslaughter. See Collins v. State,
873 N.E.2d 149, 159-160 (Ind. Ct. App. 2007) (noting that anger alone is not
sufficient to support an instruction on sudden heat), trans. denied.
[16] Walker also claims the trial court should have given involuntary manslaughter
and reckless homicide instructions, but he does not develop an argument on
appeal or point to the evidence which he believes presents serious evidentiary
disputes as to those offenses. Accordingly, Walker has waived his claims as to
those instructions. See Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 11 of 15 (holding the defendant’s contention was waived because it was not supported
by cogent argument). We find that, waiver notwithstanding, reversal is not
required.
[17] As for the proposed instruction on involuntary manslaughter, Ind. Code § 35-
42-1-4 provides that 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.” Involuntary manslaughter is not an inherently included
lesser offense of murder, but it may be a factually included lesser offense if the
charging instrument alleges that a battery accomplished the killing. Wilson v.
State, 765 N.E.2d 1265, 1271 (Ind. 2002). The only element distinguishing
murder from involuntary manslaughter is what the defendant intended to do—
batter or kill. Id. We observe that the charging instrument did not allege that a
battery accomplished the killing.1 Moreover, the record reveals that Walker
stomped on Bacsa, rendering him unconscious, backed off for a minute, then
resumed his attack by striking him with two chairs, stomping on him again, and
striking him with his hand. When asked if he was aware of the high probability
he was killing Bacsa, Walker stated “Yes, I realized that; I was,” Transcript
Volume 1 at 248, and when asked if he knew he was killing Bacsa, he stated “I
1 The State’s charging information for murder alleged that Walker “did knowingly kill another human being, to-wit: Ronald L Bacsa.” Appellant’s Appendix Volume 2 at 109.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 12 of 15 possibly could have been knowing that I was killing him . . . due to the fact that
it was violent.” Transcript Volume 2 at 4. Based upon the degree of the assault
together with Walker’s admissions regarding his intent, we conclude that there
was no serious evidentiary dispute regarding whether Walker intended to
commit only battery or another offense referenced in Ind. Code § 35-42-1-4.
The trial court did not abuse its discretion in declining to give Walker’s
proposed instruction on involuntary manslaughter. See Wilson, 765 N.E.2d at
1267-1272 (holding the evidence did not raise a serious evidentiary dispute as to
whether the killing was done knowingly and the trial court did not abuse its
discretion in denying the defendant’s tendered involuntary manslaughter
instruction where the defendant beat the victim to the point of unconsciousness,
the victim died by blunt force trauma, and the defendant had stated that the
victim was alive so he “had to take her out of it”); Champlain v. State, 681
N.E.2d 696, 702 (Ind. 1997) (holding that, because the charging instrument did
not assert a battery accomplished the killing, the trial court did not err in
declining to give an involuntary manslaughter instruction).
[18] Reckless homicide is an inherently included lesser offense of murder, as the
only element distinguishing the two is the requisite culpability. See Fisher v.
State, 810 N.E.2d 674, 679 (Ind. 2004); Miller v. State, 720 N.E.2d 696, 702 (Ind.
1999). 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,” whereas 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
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 13 of 15 disregard involves a substantial deviation from acceptable standards of
conduct.” See Ind. Code § 35-41-2-2. The Indiana Supreme Court has held that
“a trial court does not err when it refuses to instruct the jury as to a lesser-
included offense in a prosecution for murder where the defense of insanity is
used to disprove intent to commit the greater offense” and that, “[w]hile [a
defendant] would be entitled to a lesser included instruction if a serious
evidentiary dispute existed about the level of his mens rea, his interposition of
the insanity offense does not by itself raise such a dispute.” Wilson v. State, 697
N.E.2d 466, 475 (Ind. 1998) (citations omitted) (holding that, “[b]ecause the
insanity defense is the sole cause proffered by Wilson as to why a serious
evidentiary dispute existed between murder and reckless homicide, and that
argument is misplaced, we conclude the trial court correctly refused Wilson’s
instructions on reckless homicide.”).
[19] Walker engaged in a vicious and prolonged attack on Bacsa because he was
aggravated with him. At one point during the attack, Walker refrained for a
moment but then resumed his attack. There is no evidence that Walker
stomped his heel or swung the chairs or his hand at random. The attack caused
extensive injuries to Bacsa resulting in his death. The trial court did not abuse
its discretion in declining to give Walker’s proposed instruction on reckless
homicide. See Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001) (holding there
was no serious evidentiary dispute to support giving an instruction for reckless
homicide where the defendant struck the victim in the head twice with a
concrete block); Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 1999) (holding the trial
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 14 of 15 court did not abuse its discretion by denying a requested reckless homicide
instruction where the defendant struck the victim in the head several times with
a baseball bat); Sanders v. State, 704 N.E.2d 119, 122 (Ind. 1999) (holding
“[t]here is no evidence that [the defendant] was shooting at the crowd on the
stairs at random; rather, he shot only at” the victim and the defendant was not
entitled to an instruction on reckless homicide); McDowell v. State, 102 N.E.3d
924, 933 (Ind. Ct. App. 2018) (noting that, in certain cases, “there was a
relatively brief act that resulted in the victim’s death (shooting a gun that might
have been loaded, playing around with a handgun, striking a small child with a
paddle, squeezing a small child’s neck during play)” and that these actions
could have been performed recklessly, but that “[i]n contrast, the evidence here
shows that Rachel was subject to an extensive beating, not a momentary action,
such that there is no way that McDowell could have acted merely recklessly
without also acting knowingly”), trans. denied. The trial court did not abuse its
discretion in refusing Walker’s proposed instructions.
Conclusion
[20] For the foregoing reasons, we affirm Walker’s conviction for murder.
[21] Affirmed.
Altice, J., and Tavitas, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-1140 | December 20, 2018 Page 15 of 15