# Brown v. State > Indiana Court of Appeals · December 29, 1995 · 659 N.E.2d 652 URL: https://www.frixlaw.com/law-library/cases/9704529 ## Case - **Full name:** Grant C. BROWN, Jr., Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff - **Court:** Indiana Court of Appeals - **Decided:** December 29, 1995 - **Citations:** 659 N.E.2d 652; 1995 Ind. App. LEXIS 1653; 1995 WL 763415 - **Precedential status:** Published - **Opinion:** Dissent by Darden - **Judges:** Kirsch, Friedlander, Darden - **Cited by:** 20 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9704529 ## How later opinions describe it (automated extraction) - holding that evidence that the defendant had previously battered the victim was admissible under lack of accident to combat the defendant's claim that the shooting was "an accident" - holding that in a manslaughter prosecution, evidence of the defendant’s prior fights and abuse with the victim was properly admitted to show the relationship between the parties and the absence of accident - holding that reckless homicide is an inherently included offense of murder - applying Wright in reversing conviction for failure to instruct the jury on reckless homicide and involuntary manslaughter ## Opinion text DARDEN, Judge, dissenting. I agree with the majority's analysis of Issues I and III. Furthermore, I agree with the majority's procedural analysis of Issue II in light of our supreme court's recent ruling in Wright v. State (Ind.1995), 658 N.E.2d 563 . However, because I believe there was no evidence before the jury indicating that Brown committed either the offense of reckless homicide or involuntary manslaughter, I respectfully disagree with the conclusion reached by the majority after application of the Wright analysis. In determining when or whether a trial court should give a lesser included offense instruction, the third step of our supreme court's analysis in Wright requires that the trial court examine the "evidence in the case presented by both parties." Wright, 658 N.E.2d at 567 (emphasis added). "If the evidence does not so support the giving of a requested instruction on an inherently or factually included lesser offense, then a trial court should not give the requested instruction." Id. My review of the evidence presented here fails to convince me there was any evidence which warranted giving either of the two lesser included offense instructions requested by Brown. The jury should not have been permitted or required to speculate upon the evidence or lack of evidence in this case. With respect to reckless homicide, I fail to see how, from the evidence cited by the majority, a jury could conclude Brown acted recklessly. That is, the facts that he engaged in an argument and a "fight" and claimed to have shot Hinton fail to indicate Brown engaged in conduct that was "in plain, conscious, and unjustifiable disregard of harm that might result and [that] the disregard involve[d] a substantial deviation from acceptable standards of conduct." IC. 85-41-2-2(c). My review of reckless homicide cases reveals a common characteristic in that the defendant committed an act or omission which rose to the level of recklessness. For example, see McClaskey v. State (1989), Ind., 540 N.E.2d 41 (evidence that a contributing factor to baby's death was having been shaken severely and mother's admission she had become extremely angry and may have picked the baby up too hard was sufficient to sustain defendant's conviction for reckless homicide); Hall v. State (1986), Ind., 493 N.E.2d 433 (evidence that parents believed their child's sickness was the devil in a spiritual battle with God and, therefore, refused to obtain medical attention for child was sufficient to sustain parent's conviction for reckless homicide); and Hayes v. State (1987), Ind.App., 514 N.E.2d 332 (evidence that defendant was under the influence of alcohol while traveling in his car when he attempted to turn corner and encountered barricades, and that, rather than slow down or stop, he turned his car around, crossed four lanes of traffic, hit a curb, and then veered into vie-tim's car was sufficient to sustain defendant's conviction for reckless homicide). Here, the evidence cited by the majority fails to reveal an overt act or omission such as shaking a baby, failing to obtain medical attention, or driving across four lanes of traffic. Indeed, although it was not cited by the majority, even the fact that Brown carried a loaded gun, which was ready to fire, does not *659 in my view rise to "a substantial deviation from acceptable standards of conduct." The only evidence concerning the specifics of the argument was presented by Brown. He indicated the argument consisted of "tussling" over possession of the photograph and that, as a result, the gun discharged accidentally when Hinton grabbed his pocket. The record is devoid of any evidence indicating Brown personally touched the gun or that he and Hinton were "tussling" over the gun at the time it discharged. Many people, including police, carry loaded firearms on their persons at all times, and we, as a society, do not expect them to anticipate becoming engaged in a volatile argument which may result in the victim grabbing a concealed weapon and accidentally shooting him or herself. Thus, in my view, the evidence fails to reveal that Brown acted recklessly. Similarly, I believe the evidence was insufficient to warrant giving Brown's tendered involuntary manslaughter instruction. As noted by the majority, involuntary manslaughter is defined as "a person who kills another human being while committing or attempting to commit a battery." I.C. 85-42-1-4. The majority claims the fact that Hinton and Brown were arguing, its characterization of the evidence as a "fight," and the fact that a witness saw Brown attempt to pull Hinton from the car indicates there is a serious evidentiary dispute about whether Brown intended to kill or batter Hinton and, thus, warrants the giving of an involuntary manslaughter instruction. I fail to discern a dispute in the evidence. Brown characterized the "fight" between himself and Hinton to be a "tussling" or scuffle over possession of the picture. The evidence indicates that Hinton grabbed Brown's photograph and attempted to exit Brown's car. In response, Brown grabbed the photograph and attempted to push her from his car. There is no evidence that he aggressively attacked Hinton. At most, the evidence could be characterized as mutual combat. Furthermore, there is absolutely no evidence that Brown intended to do anything at all other than gain possession of his photograph. Throughout the trial, Brown claimed the shooting was an accident-in other words, a complete absence of a mens rea-while the State attempted to prove cireumstantially that Brown intended to kill Hinton while acting under "sudden heat." This does not indicate an evidentiary dispute as to whether Brown's intent was to either kill or batter Hinton, and is evidentially insufficient to support the giving of an involuntary manslaughter instruction. I agree with the trial court's analysis when it denied Brown's tendered instructions: It seems to me that you are trying to go, to cover both ends you know on this situation. Your defense is accident. This was an accidental situation. They were arguing and she grabbed and the gun went off. Totally accidental. I don't think you can dovetail ... into that defense, well, if you don't buy that defense, then look at reckless homicide or involuntary manslaughter. (R. 556-7). Thus, for the foregoing reasons, I would affirm the trial court's denial of Brown's tendered lesser included offense instructions. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9704529. Public record. Not legal advice.