John W. Thomas, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff.
from the Vigo Superior Court The Honorable David R. Bolk,
Judge Trial Court Cause No. 84D03-1501-F1-204
Attorney for Appellant Cara Schaefer Wieneke Wieneke Law
Office, LLC Brooklyn, Indiana.
Attorneys for Appellee Gregory F. Zoeller Attorney General of
Indiana James B. Martin Deputy Attorney General Indianapolis,
Following a jury trial, John W. Thomas ("Thomas")
was convicted of attempted murder,  a Level 1 felony, attempted
aggravated battery as a Level 3 felony, attempted battery
with a deadly weapon as a Level 5 felony, and criminal
recklessness as a Level 6 felony. He appeals his
conviction for attempted murder and raises the following
restated issue: whether the trial court committed fundamental
error when it instructed the jury that voluntary intoxication
is not a defense to attempted murder.
and Procedural History
The facts most favorable to the verdict are that, on the
evening of January 17, 2015, Damita Jaffe ("Jaffe")
and her boyfriend Craig Robinson ("Robinson") were
getting into Jaffe's vehicle when Thomas, whom Jaffe and
Robinson knew, and his wife ("Annette") pulled up
and parked. Thomas got out of his vehicle and approached
Robinson, who also got out of his car, and the two exchanged
words. Thomas's demeanor was aggressive, and Robinson
smelled alcohol on Thomas's breath. Thomas asked,
"[Y]ou think I'm playin'?" and then popped
the trunk of his car to show Robinson that he had a shotgun
in there. Tr. at 57. Jaffe's adult son, Bobby
Vinson ("Vinson"), walked up to the scene,
Thomas's attention turned to Vinson, and they argued.
Thomas retrieved the shotgun and pointed it at Vinson for two
to three minutes. Thomas put the gun back in the trunk, but
thereafter, Thomas swung at Vinson, and the two fought. Jaffe
attempted to defuse the situation, grabbing Thomas's arm.
She smelled alcohol on his breath. Eventually, Thomas and
Annette drove away.
A short time later, while Jaffe, Robinson, and Vinson were
still outside, they heard gunshots. Thomas was fifty to
seventy feet away, walking toward Jaffe's house while
shooting a shotgun. Jaffe was hit in the face and fell to the
ground, near her vehicle. Jaffe heard more shots as she was
on the ground. Robinson and Bobby ran and were not harmed.
Jaffe's daughter, Anna Vinson ("Anna"), lived
at Jaffe's house along with her two daughters, and at
some point she had stepped out on the front porch and was
grazed by pellets from Thomas's shotgun. Jaffe was lying
injured on the ground near a car, and when she heard
Thomas's footsteps running away, she drove to a nearby
Police later found Thomas and Annette at their home. They
searched the car and found two empty vodka bottles. Police
observed no injuries to Thomas when he was arrested later
that night. The State initially charged Thomas with four
counts of Level 1 felony attempted murder and one count of
Level 5 felony robbery, but it later amended the charging
information by removing a "knowing" mens rea from
Counts 1 through 4 and removing the robbery charge. A
four-day jury trial was held in December 2015.
Annette, who at the time of trial was facing criminal charges
of robbery and criminal recklessness related to the January
17, 2015 incident and had been granted use immunity,
testified that, on the night in question, Vinson had pointed
a pistol at Thomas and had hit Thomas in the face with it.
Annette said that Vinson hit her, as well. She and Thomas got
back in their car, and that, as they drove away from the
scene, she heard two "loud noises" that she
believed were gunshots. Tr. at 310, 312. She
believed that "they was following us shootin' at
us[.]" Id. at 312. She said that Thomas's
face was bloody from being hit by Vinson, describing it as
"all messed up" and that he "had blood
everywhere." Id. at 310. They stopped to wipe
his face, and Thomas got out and popped the trunk and left.
She did not see where he went, but heard two "big booms,
" and when she looked out, she saw Thomas running back
to the car. Id. at 317-18. Thomas got in the
driver's seat and said, "[T]he f*ck is shootin'
at us[.]" Id. at 323. Thomas and Annette sped
away while "tryin' to ditch them, " but
eventually the car's "back tire blew, " the
vehicle left the roadway, and, after a short ride with a
person who offered assistance, they walked home. Id.
at 325. Annette testified that Thomas was intoxicated that
night. Id. at 330.
The trial court instructed the jury regarding the elements of
attempted murder, as well as the following lesser-included
offenses: Level 3 felony attempted aggravated battery; Level
5 felony attempted battery with a deadly weapon; Level 5
felony attempted battery resulting in serious bodily injury;
and Level 6 felony criminal recklessness. Appellant's
App. at 145-165. The trial court instructed the jury on
the mens rea requirements for acting intentionally,
knowingly, and recklessly. Id. at 168-170, 173. As
Thomas was pursuing a claim of self-defense, the trial court
instructed the jury on the elements of a self-defense claim.
Id. at 166.
The trial court also read Final Instruction No. 28 regarding
voluntary intoxication. It stated:
Voluntary intoxication is not a defense to a charge of
Attempted Murder. You may not take voluntary intoxication
into consideration in determining whether the Defendant acted
with the intent to kill as alleged in the Information.
Voluntary intoxication is not a defense to the
lesser-included offenses of Attempted Aggravated Battery, a
Level 3 Felony; Attempted Battery With a Deadly Weapon, a
Level 5 Felony; Attempted Battery Causing Serious Bodily
Injury, a Level 5 Felony; and Criminal Recklessness, a Level
6 Felony. You may not take voluntary intoxication into
consideration in determining whether the Defendant acted
recklessly, knowingly, or intentionally as alleged in the
lesser included offenses of those included in the
Id. at 167.
The jury found Thomas guilty of: (1) Level 1 felony attempted
murder with respect to Vinson; (2) Level 3 felony attempted
aggravated battery with respect to Jaffe; (3) Level 5 felony
attempted battery with a deadly weapon with respect to Anna;
and (4) Level 6 felony criminal recklessness with respect to
Robinson. Id. at 185-205. The trial court imposed ...