Thomas Reichler v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: October 31, 2017
• Docket: 64A05-1611-CR-2626
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), this Oct 31 2017, 11:26 am Memorandum Decision shall not be regarded as precedent or cited before any court except for the CLERK Indiana Supreme Court purpose of establishing the defense of res judicata, Court of Appeals and Tax Court collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bryan M. Truitt Curtis T. Hill, Jr. Bertig and Associates, LLC Attorney General of Indiana Valparaiso, Indiana Jodi Kathryn Stein Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Thomas Reichler, October 31, 2017

Appellant-Defendant, Court of Appeals Case No. 64A05-1611-CR-2626 v. Appeal from the Porter Superior Court. The Honorable Mary R. Harper, State of Indiana, Judge. Appellee-Plaintiff. Trial Court Cause No. 64D05-1412-MR-10728

Barteau, Senior Judge

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 1 of 9 Statement of the Case 1 [1] Thomas Reichler appeals his conviction of murder, a felony. We affirm.

Issue [2] Reichler raises one issue, which we restate as whether the trial court erred in

refusing to instruct the jury on the offense of reckless homicide as a lesser

included offense of murder.

Facts and Procedural History [3] In the early morning hours of December 12, 2014, Nathaniel Sipe, Korey

Izynski, and Reichler drove to a residential neighborhood in Portage, Indiana,

planning to steal items from any unlocked cars they encountered. They walked

through the neighborhood, checking cars to see if they were unlocked. They

then ransacked the unlocked cars for money and items that could be pawned.

[4] Reichler had a handgun that had recently been reported as stolen. As they

walked through the neighborhood, Reichler brandished it periodically and

stated he was “on top of the world.” Tr. Vol. 2, p. 221. He also said, “I could

kill anyone.” Id. Sipe and Izynski discussed trying to get the handgun away

from Reichler because they thought he was “going to do something stupid,” but

they were unsuccessful. Id. at 222.

1 Ind. Code § 35-42-1-1 (2014).

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 2 of 9 [5] One of the houses they approached was owned by Alexius and Krystal Tapia.

They had three children, who were eight years, six years, and six months old.

Several cars were parked in the Tapias’ driveway. They had installed a

surveillance system that had multiple cameras placed outside and inside their

home, with a monitor in their bedroom.

[6] Alexius and Krystal were awakened by their dog barking. Alexius looked at the

monitor and told Krystal he saw someone running away from their backyard.

Alexius and Krystal rewound the recording and saw three men wearing hooded

clothing walk onto their property and go between their house and their

neighbors’ house. One of the men approached their garage’s rear door but

became startled. As a result, the three men ran away. According to the

recording, this occurred between 4:13 and 4:15 a.m.

[7] Alexius decided not to call the police, but he picked up his handgun and went

outside to check his yard and his neighbors’ house. He did not see anything

amiss, so he went back to bed with Krystal.

[8] Reichler and his associates returned to the Tapias’ house at around 5:30 a.m.,

when it was still dark. They walked up the driveway to search the Tapias’

vehicles. The record does not explain how Alexius became aware of the

intruders, but he awakened Krystal to tell her the men had returned. Next, he

picked up his gun and hurried outside. Krystal followed him to the front door.

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 3 of 9 [9] When Alexius stepped outside, he shouted “freeze!” Tr. Vol. 1, p. 216; Tr. Vol.

2, p. 224. Sipe and Izynski fled, but Reichler was inside a car and could not

escape before Alexius accosted him. Alexius and Reichler briefly scuffled.

[10] Meanwhile, Krystal returned inside to get their dog, a Rottweiler, out of its cage

and let it outside, at which point Alexius shouted at her to call the police.

Krystal retrieved her phone from her bedroom, and, when she went outside

onto the front porch, she saw Alexius holding onto Reichler in the driveway,

preventing him from leaving. The surveillance recording shows Alexius had

grabbed Reichler by the collar and was pulling him toward the house. Alexius

had his handgun pointed toward the ground, away from Reichler. He told

Reichler “that he was going to wait right here until the cops came.” Tr. Vol 1,

p. 196. Reichler responded that “he didn’t want any trouble.” Id. at 197.

[11] At that point, Krystal heard gunshots. The recording shows that as Alexius was

pulling Reichler, Reichler pulled out his handgun, pointed it at the back of

Alexius’ head at arm’s length, and fired. The shot missed. Next, Alexius

turned around and Reichler fired again, striking Alexius in the abdomen.

Alexius returned fire and shot Reichler once, striking him in the left wrist and

right arm.

[12] As Krystal was on the phone with the 911 dispatcher, she saw Alexius

“hobbling” back to the house. Id. At the front door, Alexius said, “Babe, he

shot me,” before collapsing to the ground. Id. The two older children were

awake at that point and stood in the living room, watching their father through

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 4 of 9 the open doorway as he lay bleeding on the ground. Reichler dropped his

handgun in the driveway and ran away.

[13] Krystal told the dispatcher that her husband had been shot, and several police

officers and paramedics arrived swiftly. The paramedics took Alexius to the

hospital, but the bullet had severed his iliac artery and he died from massive

internal bleeding. Meanwhile, at the officers’ request, Krystal played the

surveillance recording for the officers. Other officers searched the area, found

Izynski as he was walking away, and took him into custody.

[14] Reichler met up with Sipe at Sipe’s car, which was parked near the Tapias’

house. They sat in the car for an hour, despite Reichler’s wounds, until Sipe

thought they could leave the neighborhood without attracting police attention.

Sipe drove Reichler to a hospital in Michigan City. During the drive, Reichler

told Sipe he “aimed for [Alexius’] head” and fired. Tr. Vol. 2, p. 233.

[15] Detectives learned Reichler was at a hospital and went there to interview him.

Initially, Reichler told the detectives he and Sipe had been ambushed when they

stopped to investigate a disabled automobile on the side of the road, and an

assailant shot him. The police sent an officer to the location Reichler identified,

but the officer failed to find anything to corroborate Reichler’s story.

[16] When the detectives questioned Reichler’s initial story, he admitted that he had

been in Portage at the Tapias’ house. Upon being told that Alexius had died,

Reichler responded with “something to the effect of I figured.” Tr. Vol. 1, p.

240. Reichler told the officers he was scared that Alexius might “beat him up.”

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 5 of 9 Id. at 247. He never said that he thought Alexius was going to kill him.

Reichler further stated that he “pulled the gun out of his pocket, raised his arm,

and shot at [Alexius]” because he wanted to get away. Tr. Vol. 2, pp. 184-85.

He conceded he aimed the gun at Alexius’ head.

[17] The State charged Reichler with murder, a felony; two counts of theft, both

Level 6 felonies; and one count of attempted theft, a Level 6 felony. Reichler

moved the court to instruct the jury on voluntary manslaughter, involuntary

manslaughter, and reckless homicide as lesser included offenses of murder, “if

warranted by the evidence.” Appellant’s App. Vol. II, p. 78. He tendered

proposed final jury instructions on self-defense, voluntary manslaughter,

involuntary manslaughter, and reckless homicide, among other subjects.

[18] During the trial, the court and the parties conferred about final jury instructions

off the record. Next, the court allowed the parties to state objections on the

record, outside of the presence of the jury. Reichler objected to the court’s

refusal to instruct the jury on reckless homicide and involuntary manslaughter.

The court overruled his objection and instructed the jury on voluntary

manslaughter but not reckless homicide or involuntary manslaughter.

[19] During closing arguments, Reichler argued the jury should find him not guilty

of murder because he acted in self-defense. He also claimed the State failed to

prove he had the necessary mental culpability to commit murder and stated that

the jurors could find him guilty of voluntary manslaughter as a lesser included

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 6 of 9 offense. The jury determined Reichler was guilty as charged. The court

imposed a sentence, and this appeal followed.

Discussion and Decision [20] Reichler argues his murder conviction should be reversed because the trial court

erred in refusing to instruct the jury on reckless homicide as a lesser included

offense of murder. The State responds that the trial court did not err because

the evidence did not support an instruction on reckless homicide.

[21] With respect to instructing the jury on a lesser included offense, our Supreme

Court has stated:

To determine whether to instruct a jury on a lesser included offense, the trial court must engage in a three-part analysis. The first two parts require the trial court to consider whether the lesser included offense is inherently or factually included in the greater offense. If it is, then the trial court must determine if there is a serious evidentiary dispute regarding the element that distinguishes the lesser offense from the principal charge.

Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (citations and quotation

omitted). If the third step in the analysis is reached and answered in the

affirmative, the requested instruction should be given on the lesser included

offense. Griffin v. State, 963 N.E.2d 685, 690-91 (Ind. Ct. App. 2012).

[22] The distinguishing element between murder and reckless homicide is

culpability. Leonard, 80 N.E.3d at 885. Murder requires proof of a mental state

of intentionally or knowingly killing another person. Ind. Code § 35-42-1-1. A

person engages in conduct “knowingly” if, when he or she engages in the

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 7 of 9 conduct, he or she is aware of a high probability that he or she is doing so. Ind.

Code § 35-41-2-2(b) (1977). By contrast, reckless homicide requires proof of a

mental state of recklessness. Ind. Code § 35-42-1-5 (2014). A reckless act is one

taken 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).

[23] The State concedes that reckless homicide is an inherently included lesser

offense of murder. Thus, the sole issue is whether there is a serious evidentiary

dispute as to whether Reichler acted knowingly or recklessly. A serious

evidentiary dispute exists where the jury can conclude that the lesser offense

was committed and the greater offense was not. Griffin, 963 N.E.2d at 691.

[24] At this point we note our standard of review. Where a party claims a specific

evidentiary dispute justifies the giving of an instruction on a lesser included

offense, but the trial court does not make a finding as to the existence of a

substantial evidentiary dispute, de novo review is the appropriate standard.

Brown v. State, 703 N.E.2d 1010, 1020 (Ind. 1998). In this case, Reichler argued

pulling the handgun out of his pocket was sufficient evidence of a reckless act,

but the trial court made no finding as to an evidentiary dispute. We thus apply

a de novo standard of review.

[25] In this case, viewing all the evidence presented at trial by both parties, we

cannot conclude that the jury could have determined that Reichler committed

reckless homicide but not murder or voluntary manslaughter. Hours before

Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 8 of 9 shooting Alexius, Reichler had brandished a handgun while claiming he could

kill anyone. When Alexius caught him, he later indicated that he was afraid of

being beaten up but never said he was afraid of being killed. Alexius told

Reichler he would have to stay there until the police arrived, which a

reasonable person should have interpreted as an indication Alexius did not

intend to kill or seriously injure Reichler. In response, the recording shows

Reichler aimed the gun at the back of Alexius’ head from arm’s length and

fired. When Alexius turned around, Reichler fired again, shooting him in the

stomach. Reichler later told Sipe and the police he had aimed at Alexius’ head

for the first shot. He also stated he just wanted to get away.

[26] This evidence establishes that Reichler shot twice at Alexius knowing there was

a high probability that Alexius would be killed, rather than that he fired without

regard for the risk of Alexius’ death. See Pinkston v. State, 821 N.E.2d 830, 840

(Ind. Ct. App. 2004) (no error in refusing jury instruction on reckless homicide

in a murder prosecution; defendant shot the victim twice, once at close range,

indicating the act was done knowingly or intentionally), trans. denied. The trial

court did not err in denying Reichler’s instruction on reckless homicide because

there was no substantial evidentiary dispute.

Conclusion [27] For the reasons stated above, we affirm the judgment of the trial court.

[28] Affirmed.

Bailey, J., and Barnes, J., concur. Court of Appeals of Indiana | Memorandum Decision 64A05-1611-CR-2626 | October 31, 2017 Page 9 of 9