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Thomas v. State

Court of Appeals of Indiana

September 28, 2016

John W. Thomas, Appellant-Defendant,
v.
State of Indiana, Appellee-Plaintiff.

         Appeal 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, Indiana.

          KIRSCH, JUDGE.

         [¶1] Following a jury trial, John W. Thomas ("Thomas") was convicted of attempted murder, [1] a Level 1 felony, attempted aggravated battery[2] as a Level 3 felony, attempted battery with a deadly weapon[3] as a Level 5 felony, and criminal recklessness[4] 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.

         [¶2] We affirm.

         Facts and Procedural History

         [¶3] 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.

         [¶4] 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.[5] 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 station.

         [¶5] 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.

         [¶6] 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.

         [¶7] 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.

         [¶8] 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 Information.

Id. at 167.

         [¶9] 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 ...


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