ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Lawrence M. Hansen Gregory F. Zoeller
Noblesville, Indiana Attorney General of Indiana
Michael Gene Worden
Andrew Kobe
Deputy Attorneys General
Indianapolis, Indiana
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In the FILED
Indiana Supreme Court Mar 19 2012, 12:23 pm
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CLERK
of the supreme court,
court of appeals and
No. 29S02-1108-CR-511 tax court
JIMMIE E. JONES, JR.,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
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Appeal from the Hamilton Superior Court, No. 29D02-0910-MR-237
The Honorable Daniel J. Pfleging, Judge
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On Petition to Transfer from the Indiana Court of Appeals, No. 29A02-1008-CR-935
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March 19, 2012
Sullivan, Justice.
Jimmie E. Jones, Jr., was charged with the murder of Andrew Takash, Jr. Ind. Code §
35-42-1-1(1) (2008). At trial, Jones tendered instructions on reckless homicide and involuntary
manslaughter as lesser included offenses to the murder charge. The trial court refused Jones’s
instructions, finding that those lesser included offenses were not supported by the evidence. A
jury later found Jones guilty of murder.1
On appeal, Jones disputed that his tendered instructions were not supported by the evi-
dence. For its part, the State argued that (1) the evidence did not support a reckless homicide
instruction and (2) the charging information for the murder count foreclosed an involuntary man-
slaughter instruction.
The Court of Appeals agreed with the State. It first outlined the three-step test from
Wright v. State, 658 N.E.2d 563 (Ind. 1995), for determining when a trial court should, upon re-
quest, instruct the jury on a lesser included offense of the crime charged. Under that test, it held
that although reckless homicide is an inherently included offense of murder, Jones v. State, 948
N.E.2d 1197, 1200 (Ind. Ct. App. 2011), the evidence reflected that the trial court had not abused
its discretion by finding no serious evidentiary dispute, id. at 1201. Judge Bailey, writing for the
court, compared the evidence in this case to that in Horan v. State, 682 N.E.2d 502 (Ind. 1997),
and Lyttle v. State, 709 N.E.2d 1 (Ind. 1999):
In this case, the evidence showed that Jones, who outweighed Takash by
about fifty pounds, pushed Takash to the floor. Jones then punched him in the
chest twice to “get [the] wind out of him.” Jones placed his hands on Takash’s
neck in an effort “to render him unconscious.” Jones “readjusted” his hands to a
place higher under Takash’s chin and “leaned up into it” with his weight. Ac-
cording to Jones, he “let go” and “there was blood visible on [Takash’s] lips.”
Air bubbles then passed through the blood as Jones removed his hands.
Expert testimony indicated that Takash would have lost consciousness af-
ter ten to fifteen seconds, but he would have died only after an additional period
of oxygen deprivation, up to two minutes. By Jones’s own admission, he applied
his body as a pressure weight until Takash was unconscious and he let go only
when blood and air bubbles were expressed through Takash’s mouth. Upon ob-
serving Takash’s nonresponsive state, Jones did not summon help or attempt to
revive Takash but rather took his money and vehicle and fled.
1
Jones was also charged with and convicted of auto theft, Ind. Code § 35-43-4-2.5 (2008), and theft, Ind.
Code § 35-43-4-2 (Supp. 2011). The State further alleged him to be a habitual offender, Ind. Code § 35-
50-2-8 (2008). Jones has not presented any arguments on appeal with regard to these convictions or his
adjudication as a habitual offender.
2
One “knowingly” kills when he is “aware of a high probability” that his
conduct might kill. Here, as in Horan and Lyttle, the protracted nature of the con-
duct is such that Jones could not have been without an awareness that his actions
could result in Takash’s death. The trial court did not abuse its discretion by find-
ing no serious evidentiary dispute; the Reckless Homicide instruction was proper-
ly refused.
Jones, 948 N.E.2d at 1201 (alterations in original) (internal citations omitted).
With regard to the involuntary manslaughter instruction, the court recognized that alt-
hough the State cannot foreclose through its drafting of the charging information an instruction
on an inherently lesser included offense, it may foreclose an instruction on a factually lesser in-
cluded offense. Id. It held that the State did precisely that in this case by omitting from Jones’s
charging information any reference to a battery. Id. at 1202.
We agree with Judge Bailey’s analysis and the result reached by the Court of Appeals.
Having previously granted transfer, we now adopt the court’s opinion in full. Ind. Appellate
Rule 58(A)(1).
We affirm the judgment of the trial court.
Shepard, C.J., and Dickson, Rucker, and David, JJ., concur.
3