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Kadrovach v. State

Court of Appeals of Indiana

September 30, 2016

Robert Kadrovach, Appellant-Defendant,
State of Indiana, Appellee-Plaintiff

         Appeal from the Marion Superior Court The Honorable Mark D. Stoner, Judge Trial Court Cause No. 49G06-1408-FA-40680

          ATTORNEY FOR APPELLANT Darren Bedwell Marion County Public Defender Appellate Division Indianapolis, Indiana

          ATTORNEYS FOR APPELLEE Gregory F. Zoeller Attorney General of Indiana J.T. Whitehead Deputy Attorney General Indianapolis, Indiana

          Crone, Judge.

         Case Summary

         [¶1] Robert Kadrovach appeals his conviction for class A felony attempted murder resulting from a stabbing incident in downtown Indianapolis. He asserts that the trial court fundamentally erred in instructing the jury as to the mens rea necessary to convict him of attempted murder. Concluding that he has failed to establish fundamental error, we affirm.

         Facts and Procedural History

         [¶2] Around 10:00 p.m. on June 21, 2014, Ohnjay Walker and a group of his friends left a backyard barbeque on Indianapolis's far northeast side and headed for a downtown bar. Kadrovach was operating a hotdog stand in a parking lot across from the bar, with the assistance of Frank McCampbell. After Walker and his friends spent some time inside the bar, they decided to buy some hotdogs from Kadrovach. During the transaction, McCampbell spilled jalapeño peppers on a couple of Walker's friends, and two of them asked for a refund. Kadrovach refused to give them refunds, and a scuffle ensued. Walker said that he wanted a bag of chips in lieu of a refund, and as he reached for the chips, McCampbell shoved him. The scuffle escalated to a fight, and two of Walker's friends noticed that Kadrovach had pulled out a knife. Walker turned to walk away, and Kadrovach struck him in the head with the knife. With the blade of the knife lodged in his skull and blood running down the side of his head, the mumbling and slouching Walker attempted to get to his friend's vehicle. Friends and bar personnel phoned 911, and police arrived on the scene. Officers took statements, found the knife handle on the ground nearby, and arrested Kadrovach.

         [¶3] With the blade still embedded in his skull, Walker was taken to a nearby hospital, where he underwent a craniotomy. The attending neurosurgeon explained that the knife had to be removed slowly to avoid fatal blood loss. The knife had penetrated to the midline of Walker's brain, in close proximity to the carotid and middle cerebral arteries, in an area vital to motor function and short-term memory.

         [¶4] The State charged Kadrovach with class A felony attempted murder and class B felony aggravated battery. During his trial, he did not object to the jury instructions that addressed the elements of attempted murder. The jury found him guilty as charged, and the trial court merged the aggravated battery conviction into the attempted murder conviction. Kadrovach now appeals.

         Discussion and Decision

         [¶5] Kadrovach maintains that the jury instructions misled the jury concerning the requisite mens rea for attempted murder. Because he failed to object during trial, he concedes that he must establish fundamental error. McKinley v. State, 45 N.E.3d 25, 28 (Ind.Ct.App. 2015), trans. denied (2016). The fundamental error exception to the contemporaneous objection rule is extremely narrow and applies only when an error constitutes a blatant violation of basic due process principles and the harm or potential for harm is substantial. Isom v. State, 31 N.E.3d 469, 490 (Ind. 2015), cert. denied (2016). When determining whether fundamental error has occurred with respect to an allegedly improper jury instruction, we do not examine the instruction in isolation but rather in the context of all relevant information presented to the jury, including closing argument and other instructions. McKinley, 45 N.E.3d at 28. "[W]here all such information, considered as a whole, does not mislead the jury as to a correct understanding of the law, " there is no due process violation and thus no fundamental error. Id. at 28-29.

         [¶6] The jury convicted Kadrovach of attempted murder. Indiana Code Section 35-42-1-1(1) reads, in pertinent part, with respect to the offense of murder, "A person who … knowingly or intentionally kills another human being … commits murder, a felony." With respect to what constitutes an "attempt, " Indiana Code Section 35-41-5-1(a)[1] states:

A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime. An attempt to commit a crime is a felony or misdemeanor of the same level or class as the crime ...

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