ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Susan K. Carpenter Karen M. Freeman-Wilson
Public Defender of Indiana Attorney General of Indiana
J. Michael Sauer Eileen Euzen
Deputy Public Defender Deputy Attorney General
Indianapolis, Indiana Indianapolis, Indiana
IN THE
SUPREME COURT OF INDIANA
JACK R. WADSWORTH, JR., )
)
Appellant (Defendant Below), )
)
v. ) No. 42S00-9909-CR-490
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
APPEAL FROM THE KNOX SUPERIOR COURT I
The Honorable W. Timothy Crowley, Judge
Cause No. 42D01-9901-CF-001
July 17, 2001
SHEPARD, Chief Justice.
A jury convicted appellant Jack Wadsworth of murder and burglary. He
now appeals these convictions, asserting that the trial court erred when it
refused his reckless homicide instruction. He also claims that the
evidence was not sufficient to prove the “breaking” element of burglary.
We affirm.
Facts and Procedural History
On December 16, 1998, Beth Geyer, Jeff Davis and Jesse Ennsman
burglarized Floyd Wampler’s home, located on a farm in Knox County.
Wampler kept a large amount of cash on him, and several guns in his home.
Davis and Ennsman searched the home for these items and found a few guns.
On January 7, 1999, Graydon June Goodwin was house-sitting Wampler’s
home while Wampler was in the hospital recovering from a stroke. Two
neighbors, Eddie Westfall and Ed Schriefer, arrived at Wampler’s home to
check on Goodwin and found him lying on the floor inside the home. Goodwin
died from blood loss caused by a gunshot wound to the facial regions of the
head.
Westfall and Schriefer noticed that the front door was ajar and that
the side entrance that visitors always used was locked. (R. at 762, 836-
38, 1130, 1143.) Detective Dave Anderson of the Indiana State Police did
not observe any signs of forced entry in any of the doors or windows. (R.
at 143.)
On January 10, 1999, Geyer anonymously called the police and informed
them that she heard Jack Wadsworth and Davis discuss “going back and
finishing the job and then they’d have lots of money and other things.”
(R. at 1166-68, 1172-74, 1205-06.) Two days later, in a taped statement,
Wadsworth said that he and Davis went to Wampler’s home because Davis said
that they could get some money there. (Supp. R. at 68, 75, 89, 92, 94,
102.) Wadsworth said that he and Davis first tried to get in the basement
window. (Supp. R. at 101-03.) Wadsworth explained that Goodwin let them
in the front door after they told him that they were cold and needed to use
the bathroom. (Supp. R. at 67-69, 73, 99, 101-03.)
Wadsworth said that he went to the bathroom where he found and
examined a gun. (Supp. R. at 67, 69.) He pulled the bolt back and
discovered that the gun was loaded. (Supp. R. at 69, 90.) When he
replaced the gun, it began to tip over so he picked it up again. (Supp. R.
at 70, 90.) After opening the bathroom door, he says he pointed the gun at
the window and accidentally fired the gun at Goodwin coming around to the
bathroom. (Supp. R. at 66-67, 70-72, 91, 95.) The bullet struck Goodwin
in the head. (Supp. R. at 67, 77-78, 95; R. at 1071.)
Wadsworth and Davis took several guns, phones and rings from the
house. Wadsworth later told his fiancé that he shot Goodwin.
The State charged Wadsworth with murder, burglary and theft. At
trial, the court denied Wadsworth’s tendered instruction for reckless
homicide as a lesser included offense to murder. The jury returned guilty
verdicts on all counts. The trial court sentenced Wadsworth to sixty-five
years for murder, to be served consecutively with his concurrent sentences
of fifteen years for burglary and three years for theft.
I. Jury Instruction
Wadsworth asserts that the trial court erred when it refused his
tendered instruction on reckless homicide as a lesser included offense of
murder. We disagree.
When a defendant requests an instruction for a lesser included
offense of the charged crime, a trial court must follow the steps laid out
in Wright v. State, 658 N.E.2d 563 (Ind. 1995). At issue in this case is
the last of these steps: whether there is a serious evidentiary dispute
regarding the element distinguishing the greater offense from the lesser
offense. Id. at 567. If such a dispute exists and “a jury could conclude
that the lesser offense was committed but not the greater, then it is
reversible error for a trial court not to give an instruction . . . .” Id.
When, as in this case, “the record provides neither a finding that there
is no serious evidentiary dispute nor a specific claim from the defendant
as to the nature of that dispute, the standard of review is an abuse of
discretion.” Brown v. State, 703 N.E.2d 1010, 1020 (Ind. 1998).
We thus examine the evidence to determine whether a serious
evidentiary dispute existed regarding Wadsworth’s shooting Goodwin.
Wadsworth asserts that because “he was handling a loaded gun, with which he
was not familiar, inside a small house with other persons present, late at
night,” a jury could have concluded that his action was reckless rather
than knowing. (Appellant’s Br. at 10.)
A person acts “‘knowingly’ if, when he engages in the conduct, he is
aware of a high probability that he is doing so,” whereas, a person acts
“‘recklessly’ if he engages in the conduct in plain, conscious and
unjustifiable disregard of harm that might result and the disregard
involves a substantial deviation from acceptable standards of conduct.”
Ind. Code Ann. § 35-41-2-2(b),(c)(West 1998).
In his confession, Wadsworth stated that he discovered a gun while
using Wampler’s bathroom. After opening the door of the bathroom, he fired
the gun causing a bullet to penetrate Goodwin’s face. Other evidence
revealed that this gun required a great deal of trigger pressure to fire.
(R. at 1072, 1140-41, 1333-34.) Moreover, a forensic pathologist testified
that Goodwin likely was shot at close range. (R. at 1071-72.)
From this evidence, we think the trial court was warranted in finding
no serious evidentiary dispute about the state of Wadsworth’s knowledge.
Wadsworth must have known that firing directly at a person at such close
range is highly probable to result in death. See Sanders v. State, 704
N.E.2d 119, 121-23 (Ind. 1999)(no serious evidentiary dispute where
defendant killed victim by firing handgun at close range); Owens v. State,
544 N.E.2d 1375, 1377 (Ind. 1989)(firing gun in direction of individual is
substantial evidence from which jury may infer intent to kill).
The trial court did not abuse its discretion in refusing Wadsworth’s
reckless homicide instruction.
II. Sufficiency of Evidence
Wadsworth next asserts that the evidence presented at trial was
insufficient to convict him of burglary. He maintains that the State
failed to prove the occurrence of a “breaking,” as required in the crime of
burglary.
When reviewing a conviction for the sufficiency of the
evidence, we do not reweigh the evidence or judge the credibility of
witnesses. Baker v. State, 273 Ind. 64, 402 N.E.2d 951 (1980). Instead,
we look to the evidence most favorable to the verdict and all of the
reasonable inferences that evidence provides to determine whether there is
substantial evidence of probative value to support the judgment. Id. If a
reasonable trier of fact could have found the defendant guilty beyond a
reasonable doubt, we will affirm the trial court’s decision. Case v.
State, 458 N.E.2d 223 (Ind. 1984).
To convict Wadsworth of burglary, as charged, the evidence must prove
that he did knowingly break and enter into Wampler’s home with intent to
commit a felony of theft in it. See Ind. Code Ann. § 35-43-2-1 (West
1998). The “breaking” element may be proven entirely by circumstantial
evidence. McCovens v. State, 539 N.E.2d 26 (Ind. 1989).
Wadsworth asserts that “Goodwin had let him and Davis in the front
door, because they were cold and needed to use the bathroom.” (Appellant’s
Br. at 12.) He supports this contention with the fact that Wampler’s home
showed no signs of forced entry. (Id.) We recently examined the
sufficiency of the “breaking” evidence with regard to these same facts in
Davis v. State, 743 N.E.2d 751 (Ind. 2001).
In Davis, Wadsworth’s partner-in-crime also asserted that evidence of
a “breaking” was insufficient where there were no signs of forced entry.
Id. at 753. Davis stated that he and Wadsworth “scheme[d] to get Goodwin
to open an outer door to the house and allow one of them to sneak in
without having to break in.” Id. at 754. We held there, as we do here,
that “the State presented circumstantial evidence that Goodwin would not
have permitted [the defendant] to enter Wampler’s home.” Id. at 754.
Goodwin stayed at Wampler’s home to guard against a burglary while
Wampler was in the hospital recovering from a stroke. Wadsworth admits
that he and Davis tried to enter the home through a basement window before
approaching the front door of the home. Goodwin’s body was discovered near
the couch where he normally slept with a gun next to him. (R. at 839, 878,
State’s Exh. 18.) The door that Goodwin used to let visitors into
Wampler’s home was locked, and the front door was ajar.
As we said in Davis, “[T]his evidence allowed a reasonable inference
that [the defendant’s] entry was unauthorized. Moreover, we think it
implausible that a man occupying a home solely to guard against entry of
potential burglars would willingly let two strangers in the front door.”
Davis, 743 N.E.2d at 754. See Utley v. State, 589 N.E.2d 232 (Ind. 1992),
cert. denied, 506 U.S. 1058 (1993)(husband’s testimony that doors to home
were locked when he left and that wife would not open door to stranger
provided inference that force was used). Wadsworth’s claim presents a
close question, but we conclude the evidence was sufficient to convict him
of burglary.
Conclusion
We affirm the judgment of the trial court.
Sullivan, and Rucker, JJ., concur.
Dickson and Boehm, JJ., concur as to Part I and dissent as to Part II.