ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Brent R. Dechert Steve Carter
Deputy Public Defender Attorney General of Indiana
Kokomo, Indiana
Justin F. Roebel
Deputy Attorney General
Indianapolis, Indiana
______________________________________________________________________________
In the FILED
Indiana Supreme Court May 15 2008, 1:30 pm
_________________________________
CLERK
of the supreme court,
court of appeals and
tax court
No. 34S05-0711-CR-512
DAWN ELIZABETH MCDOWELL, Appellant (Defendant below),
v.
STATE OF INDIANA, Appellee (Plaintiff below).
_________________________________
Appeal from the Howard Circuit Court, No. 34C01-0307-FB-261
The Honorable Lynn Murray, Judge
_________________________________
On Transfer from the Indiana Court of Appeals, No. 34A05-0606-CR-289
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May 15, 2008
Dickson, Justice.
Dawn Elizabeth McDowell appeals her conviction and sentence for Voluntary
Manslaughter, a class A felony1 for the death of Christopher Crume. The Court of Appeals
affirmed. McDowell v. State, 872 N.E.2d 689 (Ind. Ct. App. 2007). We granted transfer and
find that State's tendered instruction should not have been given because it authorized the jury to
infer an intent to kill simply because a death resulted from a deadly weapon in the hands of the
defendant.
1
Ind. Code § 35-42-1-3(a)(2004).
McDowell and Crume had been living together at a campground for several months.
Early on the morning of June 25, 2003, after attending a party and consuming alcohol, the two
were returning to the campground in a car driven by Crume when their arguing became
physically violent, and the defendant stabbed Crume in the neck. He died several days later. A
jury found the defendant guilty of Aggravated Battery, a class B felony,2 Involuntary
Manslaughter, a class C felony,3 and Voluntary Manslaughter, a class A felony. Citing double
jeopardy concerns, the trial court entered a conviction only for Voluntary Manslaughter and
imposed a sentence of forty years, with five years suspended.
The defendant's appeal makes several claims: insufficient evidence, erroneous admission
of evidence, refusal to reopen the evidence, instruction error, and the use of improper
aggravating circumstances to determine her sentence. We address only her claim of instruction
error and summarily affirm the Court of Appeals as to the other issues. Ind. Appellate Rule
58(A)(2).
The defendant contends that the trial court erred in giving the following instruction that
had been requested by the State:
The intent to kill may be inferred from evidence that a mortal wound was inflicted upon
an unarmed person with a deadly weapon in the hands of the accused.
Appellant's App'x at 507. Among its appellate arguments is her claim that this instruction
relieves the State of its duty to prove the intent element required for Voluntary Manslaughter. A
conviction for Voluntary Manslaughter requires proof beyond a reasonable doubt that the
defendant knowingly or intentionally killed another person by means of a deadly weapon. Ind.
Code § 35-42-1-3(a). The defendant contends that the challenged instruction permits a
conviction for the offense simply upon proof that the defendant's use of a deadly weapon resulted
in a person's death even in the absence of proof that the killing was done knowingly or
2
Ind. Code § 35-42-2-1.5(2004).
3
Ind. Code § 35-42-1-4(c)(2004).
2
intentionally.4
The State asserts that the defendant did not properly preserve the objection for appeal, or
in the alternative, that this instruction has already received appellate approval and does not
impermissibly relieve the State of its burden of proof.
To preserve an error for appeal, a party must specifically identify the grounds for the
objection at trial. Childers v. State, 719 N.E.2d 1227, 1232 (Ind. 1999). See also Ind. Crim.
Rule 8(B) ("No error with respect to the giving of instructions shall be available . . . except on
the specific objections made . . . ."); Ind. Trial Rule 51(C) ("No party may claim as error the
giving of an instruction unless he objects thereto . . . stating distinctly the matter to which he
objects and the grounds of his objection."). The purpose of the requirement for a specific and
timely objection is to alert the trial court so that it may avoid error or promptly minimize harm
from an error that might otherwise require reversal and result in a miscarriage of justice and a
waste of time and resources. See Godby v. State, 736 N.E.2d 252, 255 (Ind. 2000).
The defendant's initial objection to the instruction at trial asserted that it was "unduly
prejudicial." Tr. at 950. Authorizing a conviction in the absence of proof of the requisite
criminal intent is obviously "unduly prejudicial," but such objection would normally lack the
necessary specificity to preserve the error for appeal. Here, however, we have the benefit of an
ensuing colloquy between the trial court and counsel, which informs us that the trial judge gave
specific consideration to whether the proposed instruction was a correct statement of law. The
trial judge initially reacted to the proposed instruction by calling it a "mine field." Tr. at 949.
After hearing argument from both parties, the judge took a break of approximately forty-five
minutes and personally researched the issue. Upon her return, she announced that she was going
to give the instruction, because "[I]t appears that this is a correct statement of the law and it is
still valid law and it's not covered by any other instruction and the evidence would support
4
In apparent contradiction to this claim of instruction error, defense counsel's appellate brief also declares
that the jury instruction is "good law." Appellant's Br. at 9, 18. As explained below (and noted by the
defense in its Petition to Transfer, p. 4-5), this assertion is imprecise, and we choose to disregard it in
favor of the defendant's more developed argument that the instruction improperly authorizes a conviction
in the absence of proof of the requisite intent.
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giving it." Tr. at 963. We conclude that the trial court gave consideration to essentially the same
issue that is presented on appeal—whether the instruction was incorrect because it authorized the
conviction without proof of the necessary intent.
The elements necessary to establish commission of the criminal offense of Voluntary
Manslaughter as a class A felony are the (a) knowing or intentional (b) killing (c) of another
person (d) by means of a deadly weapon. I.C. § 35-42-1-3(a). Other instructions correctly
informed the jury that to convict the defendant of this offense, the State must prove beyond a
reasonable doubt that the defendant's killing was done "knowingly or intentionally," Appellant's
App'x at 495, and explained the meaning of each of these words, id. at 500, 501.
The fact remains, however, that the challenged instruction expressly directed the jury that
it could find the intent element proven merely by evidence that the mortal wound resulted from
the defendant's use of a deadly weapon upon an unarmed person. This instruction essentially
authorizes a conviction upon proof of only three of the four statutory elements of Voluntary
Manslaughter as a class A felony—killing of another person by means of a deadly weapon. The
instruction operates to relieve the State from proving the requisite statutory intent element.
The State's appellate brief urges that this instruction has previously been found to be not
erroneous, citing Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000), and Brown v. State, 691
N.E.2d 438, 444-45. And when it argued at trial in support of the instruction, the State cited
Pointer v. State, 585 N.E.2d 33, 35 (Ind. Ct. App. 1992), and Southard v. State, 422 N.E.2d 325,
331 (Ind. Ct. App. 1981).
In Bethel, this Court found no error in the giving of an instruction permitting the jury to
infer intent to commit murder from the use of a deadly weapon in a manner likely to cause death
or great bodily injury. 730 N.E.2d at 1246. The challenged instruction approved in Brown was
somewhat similar: "You are instructed that intent and purpose to kill may be inferred from the
deliberate use of a deadly weapon in a manner calculated to produce death." 691 N.E.2d 438,
444 (Ind. 1998). But unlike the present case, the instructions in both Bethel and Brown, by
including such words and phrases as "in a manner likely," "deliberate," and "in a manner
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calculated," employed language specifically relating to the actor's state of mind and referring to
evidentiary facts relevant to inferring criminal intent.
Similarly, the language cited by the State from both Pointer and Southard identifies
conduct indicative of the requisite criminal intent. Both cases contain the statement that "intent
to kill can be inferred from the use of a deadly weapon in a manner likely to cause death or great
bodily harm." Pointer, 585 N.E.2d at 35 (emphasis added); see also Southard, 422 N.E.2d at
331. There is no counterpart in the language of the presently challenged instruction. But of
greater significance is the fact that neither Pointer or Southard involved the appellate review of
this statement in a jury instruction. In Pointer, the language was used in addressing the
defendant's claim of insufficient evidence. 585 N.E.2d at 35. And in Southard, the statement
was made in the discussing the admissibility of evidence. 422 N.E.2d at 331.
In this case, to convict the defendant of the charge of Voluntary Manslaughter, a class A
felony, the State was required to prove beyond a reasonable doubt that "(1) the defendant (2)
knowingly or intentionally (3) killed (4) Christopher Crume (5) by means of a deadly weapon."
Appellant's App'x at 495. The challenged instruction operated to relieve the State's burden to
prove the requisite intent element: that the defendant knowingly or intentionally killed a person.
It misled the jury by authorizing a conviction for this offense merely upon evidence that Crume's
death resulted from a deadly weapon "in the hands of the defendant."
The facts of this case underscore the significance of the instruction. The stab wound
inflicted by the defendant resulted in a one-inch cut. As summarized by the State, Crume
received exploratory surgery to repair the damage, and it appeared that he "would fully recover,
but then a blood clot in an artery broke loose and caused blood to enter Crume's lungs."
Appellee's Br. at 5. He died "of asphyxiation due to blood in his lungs" six days after receiving
the stab wound. Id. It is not obvious from these facts that a properly instructed jury would find
an intentional or knowing killing.
The principal issue at trial was the defendant's intent, not her actions. The instruction
was an incorrect statement of law, it misled the jury, and the error prejudiced her substantial
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rights with respect to the charge of Voluntary Manslaughter, a class A felony, thus requiring a
reversal of the resulting conviction on this count. Stringer v. State, 853 N.E.2d 543, 548 (Ind.
Ct. App. 2006), trans. not sought.
The reversal of the defendant's conviction for Voluntary Manslaughter as class A felony
does not preclude the State from retrying the defendant upon this charge. At the conclusion of
the defendant's first trial, the jury found the defendant guilty of Aggravated Battery, a class B
felony, Involuntary Manslaughter, a class C felony, and Voluntary Manslaughter, a class A
felony. The trial court entered judgments of conviction on all counts, but then, noting double
jeopardy concerns, ordered the convictions for Aggravated Battery and Involuntary
Manslaughter vacated, leaving only a single conviction upon the Voluntary Manslaughter
charge, on which the defendant was sentenced. Because the elements of the counts charging
Aggravated Battery and Involuntary Manslaughter do not include the intent to kill, the error in
giving the challenged instruction does not impair the reliability and validity of these other
convictions. In reversing the conviction for Voluntary Manslaughter, justice and fairness require
that we also set aside the trial court's order vacating the convictions on the other counts.
In the event the State chooses to dismiss this count, or if retrial does not result in a
conviction on this count, the trial court shall enter judgment and sentence the defendant based
upon the jury's verdicts finding the defendant guilty of each the remaining offenses, subject to
any further double jeopardy considerations, which are not presented or addressed in this opinion.
The judgment of the trial court is reversed and this cause remanded for new trial or such
other proceedings as are consistent with this opinion.
Shepard, C.J., and Sullivan, Boehm, and Rucker, JJ., concur.
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