Webb v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Phillip R. Skodinski Gregory F. Zoeller
South Bend, Indiana Attorney General of Indiana

Karl M. Scharnberg
Deputy Attorney General
Indianapolis, Indiana

FILED
______________________________________________________________________________

In the Mar 23 2012, 9:30 am

Indiana Supreme Court CLERK
of the supreme court,
_________________________________ court of appeals and
tax court

No. 71S05-1106-CR-329

BRICE WEBB,
Appellant (Defendant below),

v.

STATE OF INDIANA,
Appellee (Plaintiff below).
_________________________________

Appeal from the St. Joseph Superior Court, No. 71D03-0910-MR-00023
The Honorable Jerome Frese, Judge
_________________________________

On Petition To Transfer from the Indiana Court of Appeals, No. 71A05-1007-CR-517
_________________________________

March 23, 2012

Rucker, Justice.
 Charged with murder in the shooting death of his girlfriend, Brice Webb requested a jury
instruction on the lesser offense of reckless homicide. The trial court denied the request and
Webb was convicted as charged. We granted transfer to address the propriety of the trial court’s
ruling.

Facts and Procedural History

Webb and his girlfriend, Cherlyn Reyes, shared an apartment. On October 8, 2009,
Shane Hillebrand and Ashley Gurrister were visiting the apartment where the four ate dinner,
watched movies, and drank alcohol. Gurrister brought a handgun with her that she had recently
purchased. The friends posed for photos with the handgun and went outside to shoot the
handgun in the air.

During the course of the evening, Reyes and Gurrister left the apartment to visit friends.
While they were gone, Webb passed out on the couch while Hillebrand continued watching
movies. When Reyes and Gurrister returned later that evening, Reyes began looking through
Webb’s cell phone call history. Reyes discovered Webb had been making calls to other women,
became jealous and upset, and slapped Webb across the face. A verbal and physical fight
between Reyes and Webb ensued. Hillebrand described the fight as “an all out rumble between
the both of them. It was more physical than I’ve ever saw [sic] in my life between a male and a
female.” Tr. at 354. The fight lasted between forty-five minutes and an hour. At one point,
Webb punched Reyes and briefly knocked her unconscious. Hillebrand and Gurrister repeatedly
attempted to break up the fight. After the fighting had settled down, Reyes went into the
bathroom to call the women she suspected Webb had been calling, and another fight ensued.
That fight ended when Gurrister and Hillebrand intervened.

Shortly before midnight, Reyes again went into the bathroom to call her friend Jessica
Hoover. Hillebrand testified that while Reyes was on the phone, Webb came into the living
room and asked for a cigarette lighter. At that time, Hillebrand believed the “gun was still sitting
on the table.” Tr. at 356. Webb lit his cigarette and left the room. Hoover testified regarding
her phone conversation with Reyes that she heard Webb come into the bathroom and he

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“sounded a little irritated. . . . I could hear him loudly in the phone, and they were arguing.” Tr.
at 179. Then Reyes said “Brice, no,” and went quiet. Tr. at 179. The next thing Hoover heard
was Webb screaming, “Cherlyn, baby, wake up, wake up.” Tr. at 179.

From the apartment’s living room, Hillebrand and Gurrister heard a gunshot and both ran
toward the bathroom and met Webb in the hallway. Hillebrand testified Webb said, “I just shot
my baby’s momma,” Tr. at 357, while Gurrister testified that Webb “said he didn’t mean to, that
it was an accident.” Tr. at 483. They found Reyes lying on the bathroom floor and “watched her
take her last breath.” Tr. at 483.

During the commotion that followed, Hillebrand took the gun from Webb, and Gurrister
drove Webb to Hillebrand’s house. While there Webb woke up Sasha Alexander. Alexander
testified that “[Webb] just kept repeating he shot his baby momma.” Tr. at 415-16. Still at the
apartment, Hillebrand called 911 and went outside to wait for police.

Officers of the South Bend Police Department arrived at Hillebrand’s home, arrested
Webb and transported him to the homicide unit where a videotaped interview was conducted.
During the interview, Webb stated he did not shoot Reyes, that he had left the apartment to buy
cigarettes at a nearby gas station, and when he returned he found that Reyes had been shot and
was lying on the bathroom floor.

The day after the shooting the State charged Webb with murder. And on March 5, 2010,
the State filed an information alleging Webb to be an habitual offender – to which Webb
objected. A jury trial began on May 17, 2010, at the close of which Webb requested a jury
instruction on the lesser offense of reckless homicide. The trial court denied the request and the
jury found Webb guilty as charged. The jury also found Webb to be an habitual offender. The
trial court sentenced Webb to sixty-five years for murder enhanced by thirty years for the
habitual offender adjudication.

Webb appealed raising the following restated issues: (1) Whether the trial court erred in
allowing the State to file the habitual offender charge beyond the statutory period allowed for

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amending charges; (2) Whether the trial court erred in admitting evidence of Webb’s videotaped
interview; and (3) Whether the trial court erred in refusing to instruct the jury on the lesser
offense of reckless homicide. The Court of Appeals rejected each of these claims and affirmed
the judgment of the trial court in an unpublished memorandum decision. See Webb v. State,
71A05-1007-CR-517 (Ind. Ct. App. April 12, 2011). Having previously granted transfer thereby
vacating the opinion of the Court of Appeals, see Ind. Appellate Rule 58(A), we now reverse the
judgment of the trial court with respect to Webb’s jury instruction claim. We summarily affirm
that portion of the Court of Appeals’ opinion concerning Webb’s remaining claims. Additional
facts are set forth below where necessary.

Discussion

In Wright v. State the Court developed a three-part test that trial courts should perform
when called upon by a party to instruct on a lesser included offense to the crime charged. 658
N.E.2d 563 (Ind. 1995). First, the trial court must compare the statute defining the crime
charged with the statute defining the alleged lesser included offense to determine if the alleged
lesser included offense is inherently included in the crime charged. Id. at 566. Second, if a trial
court determines that an alleged lesser included offense is not inherently included in the crime
charged under step one, then it must determine if the alleged lesser included offense is factually
included in the crime charged. Id. at 567. If the alleged lesser included offense is neither
inherently nor factually included in the crime charged, the trial court should not give an
instruction on the alleged lesser included offense. Id. Third, if a trial court has determined that
an alleged lesser included offense is either inherently or factually included in the crime charged,
“it must look at the evidence presented in the case by both parties” to determine if there is a
serious evidentiary dispute about the element or elements distinguishing the greater from the
lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was
committed but not the greater. Id. “[I]t is reversible error for a trial court not to give an
instruction, when requested, on the inherently or factually included lesser offense” if there is
such an evidentiary dispute. Id.

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 Applying the foregoing framework, as to the first two prongs of the Wright test the only
element distinguishing murder and reckless homicide is the defendant’s state of mind: reckless
homicide occurs when the defendant “recklessly” kills another human being, and murder occurs
when the killing is done “knowingly” or “intentionally.” Compare Ind. Code § 35-42-1-5, with
I.C. § 35-42-1-1(1). Reckless conduct is action taken in plain, conscious, and unjustifiable
disregard of harm that might result and the disregard involves a substantial deviation from
acceptable standards of conduct. I.C. § 35-41-2-2(c). By contrast, a person engages in conduct
“knowingly” if the person is aware of a “high probability” that he or she is doing so. I.C. § 35-
41-2-2(b).1 Thus, reckless homicide is an inherently included lesser offense of murder. See
Davenport v. State, 749 N.E.2d 1144, 1150 (Ind. 2001). The determinative issue here is whether
the evidence produced a serious evidentiary dispute concerning Webb’s state of mind that would
justify giving the requested instruction.

The trial court refused Webb’s request to give a reckless homicide lesser included jury
instruction because Webb “denied the act [of murder], period. When he denies the act, he cannot
then take advantage of the inherent lesser” included offense. Tr. at 680. The trial court was
certainly correct that Webb himself declared not only was he not the shooter but also he was not
even present when the shooting took place. But that does not end the analysis. Wright makes
clear that in determining whether a serious evidentiary dispute exists the trial court “must look at
the evidence presented in the case by both parties.” Wright, 658 N.E.2d at 567 (emphasis
added). The Court has been consistent in this regard. See Fisher v. State, 810 N.E.2d 674, 680
(Ind. 2004) (“[W]hen addressing the question of whether there is a serious evidentiary dispute,
the court must evaluate the evidence presented by both parties.”); Young v. State, 699 N.E.2d
252, 255 (Ind. 1998) (“[T]he trial judge must consider whether the evidence provided by both
parties creates a serious evidentiary dispute about the element or elements which distinguish the
greater from the lesser offense.”); Wilson v. State, 697 N.E.2d 466, 473 (Ind. 1998) (“[T]he
inquiry hinges on whether a serious evidentiary dispute exists as to which offense was committed
by the defendant, given all the evidence presented by both parties.”); Champlain v. State, 681

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We do not address whether Webb “intentionally” killed Reyes because the charging information alleged
only that Webb “knowingly” did so. Appellant’s App. at 5.

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N.E.2d 696, 699 (Ind. 1997) (“[T]he question whether to give the instruction hinges on the
evidence presented by both parties.”).

To be sure, if we consider only the evidence presented by Webb, there would be no
question that he would not be entitled to an instruction on a lesser included offense. But Wright
and its progeny dictate that the evidence presented by the State must also be taken into account.
This point is well illustrated in at least two cases. For example, in Young the defendant
interposed an alibi – the classic “I didn’t do it because I wasn’t there” defense – and for that
reason the trial court refused to give the defendant’s tendered reckless homicide instruction. 699
N.E.2d at 256. Yet this Court unanimously held that because there was a serious evidentiary
dispute, the defendant was entitled to have the jury instructed on the lesser included offense of
reckless homicide. Reversing the trial court and remanding for new trial, the Court declared that
“[p]resenting an alibi defense does not automatically bar instructions on a lesser included
offense.” Id. The Court noted that “[w]hether a defendant raises an affirmative defense bears
only tangentially on the issue of whether there is a serious evidentiary dispute regarding the
State’s case in chief.” Id. at 256 n.5.

Young relied on Champlain, where the trial court refused to give the defendant’s tendered
reckless homicide instruction because the defendant had argued that another person had
committed the murder. In essence defendant’s theory of the case was “to pin the murder” on
someone else. Champlain, 681 N.E.2d at 700. On review this Court determined that the trial
court’s refusal was reversible error. We held that the trial court’s statement that such a defense
was inconsistent with defendant’s alternative defense, which conceded defendant’s involvement
but attempted to show a lower level of mental culpability, was inadequate to explain that no
serious evidentiary dispute existed regarding whether the defendant had committed murder or
reckless homicide. Specifically the Court declared: “Assuming without deciding that it is within
the trial court’s discretion to refuse to instruct on affirmative defenses if they are inconsistent
with the defense’s contentions, the issue in this case is whether an instruction is required when
there is a serious evidentiary dispute as to an element of the State’s case in chief.” Id. Young
also discusses with approval a pre-Wright case, Shelby v. State, 281 N.E.2d 885 (Ind. 1972),

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where a defendant charged with robbery presented an alibi defense but was convicted of theft, a
lesser included offense of robbery. 699 N.E.2d at 256.

We observe that looking at the evidence presented in the case by both parties ensures that
both the prosecution and the defense are entitled to a lesser included offense instruction if there
is a serious evidentiary dispute justifying it. Although this rule is admittedly deployed far more
often on a defendant’s behalf, there are times when the State decides at the close of all the
evidence that it wants the benefit of instructing the jury on a lesser included offense. There are
times when a defendant objects to a lesser included offense instruction. Indeed, in Wright the
defendant appealed the giving of instructions on the lesser offenses of murder. It is precisely
because we intended the door to swing both ways that Wright makes such a strong point of
saying that a serious evidentiary dispute requires the court to “look at the evidence presented in
the case by both parties.” 658 N.E.2d at 567.

In this case, the State’s evidence concerning Webb’s state of mind is at best ambiguous.
As defense counsel pointed out at trial, there were “discrepancies of evidence that came through
at various times from two other people who [were present at the scene] who say [Webb] had the
gun, even how he got it, even when it got loaded or by whom it was loaded or unloaded, we
think [that] raises a question as to whether or not when the gun was fired whether or not the
person who fired it knew that it was in fact loaded.” Tr. at 679. Defense counsel was referring
to the testimony from Hillebrand and Gurrister. Hillebrand testified that Gurrister brought a gun
to the apartment and all four present, Hillebrand, Gurrister, Reyes, and Webb, played with the
gun. Tr. at 350. Each fired the gun into the air. Tr. at 351. Gurrister and Webb both unloaded
the gun at different points in the evening. Tr. at 351-52. Hillebrand, Gurrister, and Webb had
pictures taken posing with the gun, and Webb pointed the gun at both Gurrister and Reyes in a
“playing but not playing way.” Tr. at 352. Gurrister similarly testified that she brought a gun to
the apartment and each of the four fired the gun. Tr. at 476-77. She testified that she posed with
the gun and “took the clip out a lot of times.” Tr. at 477. The four also passed the gun around
“talking and just looking at it.” Tr. at 477. Further, when Webb pointed the gun at Reyes, “the
clip wasn’t in it . . . at that time.” Tr. at 477. Gurrister and Reyes left the apartment for
approximately an hour and a half. Gurrister testified she “took the clip with me because I didn’t

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want [Hillebrand and Webb] shooting [the gun] off while I was gone. But I didn’t want to ride
with it because we had been drinking. So I left the gun there and I took the clip with me.” Tr. at
478. After returning to the apartment, the gun was in Gurrister’s purse, but she did not testify
specifically if it had been reloaded. See Tr. at 484-85. Finally, Gurrister testified that after
hearing the gunshot, she ran toward the bathroom and encountered Webb who said “he didn’t
mean to [shoot Reyes], that it was an accident.” Tr. at 483. Hoover, who was on the phone with
Reyes when she was shot, heard Webb say “Cherlyn, baby, wake up, wake up.” Tr. at 179.

The evidence in this case is certainly sufficient to support the jury’s guilty verdict of
murder. However, the evidence also produced a serious evidentiary dispute concerning whether
Webb acted knowingly or recklessly. And depending on how the jury might have weighed and
credited all of this evidence, it very well could have returned with a conviction of reckless
homicide. The trial court’s refusal to instruct the jury on the lesser-included offense of reckless
homicide was reversible error.

Conclusion

We reverse Webb’s conviction and remand this cause for a new trial.

Dickson and Sullivan, JJ., concur.
David, J., dissents with separate opinion in which Shepard, C.J., joins.

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David, J., dissenting.

A jury convicted Webb of murdering Reyes after a trial court denied Webb’s request for
a jury instruction on the lesser included offense of reckless homicide. I agree with the trial court,
and therefore respectfully dissent. As the trial court said,

[h]e has denied the act, period. When he denies the act, he cannot then take
advantage of the inherent lesser and say, well, even if they think I’m a liar and
think I did it, I’m entitled to the lesser because for this argument the judge should
assume that I was lying also and give me that but then give me the benefit of the
lesser.

I agree with the majority that the issue here is the third prong of the Wright test, to “look
at the evidence presented in the case by both parties” to determine if there is a serious
evidentiary dispute about the element or elements distinguishing the greater from the lesser
offense, and thus, if a jury could conclude that the lesser offense was committed but not the
greater. Wright v. State, 658 N.E.2d 563, 567 (Ind. 1995). However, I find the cases cited in the
majority opinion to be distinguishable from the facts before us today.

In Champlain v. State, 681 N.E.2d 696 (Ind. 1997); Wilson v. State, 697 N.E.2d 466 (Ind.
1998); and Young v. State, 699 N.E.2d 252 (Ind. 1998), the defendant in each case did not
testify. In Fisher v. State, which the majority opinion also cites today, the defendant testified that
he did not intend to shoot the victim and was only “playing around” with the gun. 810 N.E.2d
674, 680 (Ind. 2004). Furthermore, Fisher testified after the gun discharged, he “started
screaming, I’m sorry, I’m sorry” and called for an ambulance. Id. Similarly, had Webb testified
to his mens rea at the time of the crime, he would have been entitled to the lesser included
instruction.

I find the present case analogous to Wilson, in which the defendant proffered an insanity
defense. 697 N.E.2d at 474. In concluding the trial court correctly refused Wilson’s reckless
homicide instruction, this Court said, “[b]ecause a successful insanity defense would make
Wilson nonculpable for any offenses he may have committed, the insanity defense cannot be the
mechanism to demonstrate dispute entitling him to a lesser included instruction.” Id. at 475.
The logic is analogous to our majority holding today, that had the jury believed Webb’s
testimony, they could have found him not guilty, similar to if a jury had believed Wilson’s
insanity defense, he would have been not culpable for any offense he committed.

I believe to require the trial court to give the lesser included jury instruction when Webb
claims under oath at trial that he was not present and therefore not the shooter would result in a
farce upon the trial court. It would be giving Webb the opportunity to testify that he was not
there and could not have committed the crime, but that if the jury believed he was there, then he
didn’t intend to kill her.

The defendant chose to testify. He did not have to and certainly if he had not, no adverse
inference could have been drawn. In fact, had he not testified, he most certainly would have
been entitled to the lesser included instruction. However, he chose to testify. That was his
choice. His testimony was that he was not there. He should not be allowed to make a mockery
out of the state’s burden of proof and argue to a jury he was not there, but if he was, he didn’t
have the necessary intent. For these reasons, I respectfully dissent.

Shepard, C.J., joins.

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