Ellis v. State

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE

Donald C. Swanson, Jr. Karen M. Freeman-Wilson
Fort Wayne, Indiana Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

ADAM C. ELLIS, )
)
Appellant (Defendant Below), )
)
v. ) No. 01S00-9910-CR-632
)
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )

APPEAL FROM THE ADAMS CIRCUIT COURT
The Honorable Mark A. McIntosh
Cause No. 01C01-9808-CF-27

October 18, 2000

SHEPARD, Chief Justice.

Appellant Adam C. Ellis appeals his conviction and sentence for
murder, two counts of attempted murder, and burglary. He raises two issues
in this direct appeal:
I. Whether the trial court properly refused Ellis’ tendered
instructions on reckless homicide and criminal recklessness, and

II. Whether the trial court erred when it imposed maximum sentences
for the convictions and ordered them served consecutively.

Facts and Procedural History

On the evening of August 5, 1998, Ellis was at his parents’ home with
a friend, Chris Richardson. Ellis and Richardson played foosball and ate
pizza. In anticipation of Ellis’ wife coming over, Ellis told Richardson
(who had been smoking marijuana) to leave for a while so that Ellis’ wife
would not complain about his company.

At 12:30 a.m., now August 6th, Angie Ellis arrived to pick up their
son Alec. Ellis and Angie were married at the time, but separated. Angie
was living at the home of her mother and stepfather. Ellis testified that
when Angie arrived to pick up Alec she invited Ellis over to her parents’
home to talk. Angie did not want to talk in front of Alec, who was still
awake.

Ellis arrived at the home of Angie’s parents and saw Angie on the
couch kissing Matt Bebout. Ellis left and later returned carrying a .22
caliber handgun.[1]

Ellis entered Angie’s parents’ home, dressed in all black, and
approached Bebout and Angie, who were still seated on the couch. He shot
Bebout in the right cheek, and the bullet lodged in Bebout’s neck. Ellis
next shot Angie six times, killing her. Ellis then kicked in the bedroom
door of Angie’s stepfather, Curt Krauss, and shot him in the cheek and
hand.

The jury found Ellis guilty of murder, two counts of attempted murder,
and burglary. The trial court imposed consecutive sentences of sixty-five
years for murder and fifty years for each attempted murder. It also
ordered a concurrent twenty-year sentence for burglary. The sentence thus
totaled 165 years.

Instructions on Criminal Recklessness and Reckless Homicide

Ellis first asserts that the trial court erred when it refused his
tendered instructions on criminal recklessness and reckless homicide.[2]

Ellis’ argument fails because the trial court was not required to
instruct the jury on lesser included offenses based upon the analysis set
forth in Wright v. State, 658 N.E.2d 563 (Ind. 1995).

In Wright, we indicated that a requested instruction for a lesser
included offense of the crime charged should be given if the lesser
included offense is either “inherently or factually” included in the crime
charged, and if, based upon the evidence presented in the case, there
existed a “serious evidentiary dispute about the element or elements
distinguishing the greater from the lesser offense . . . [such that] a jury
could conclude that the lesser offense was committed but not the greater .
. . .” Id. at 567.

Ellis asked the trial court to instruct the jury on reckless homicide
as a lesser included offense of murder and criminal recklessness as a
lesser included offense of attempted murder.

Reckless Homicide. Reckless homicide is an inherently included
offense of murder. Wright, 658 N.E.2d at 567. The two charges are
distinguished only by the lesser culpability required to prove reckless
homicide.[3] Id. The remaining question is whether this case presented a
serious evidentiary dispute with respect to an element of murder such that
a jury could have concluded that the lesser offense was committed but not
the greater. Id.

Ellis contends that there was a serious evidentiary dispute regarding
his intent based upon his assertion of an involuntary intoxication
defense.[4] He reasons that if the jury had determined that he did not
have the requisite intent to commit murder, then the jury could have
instead concluded that he committed reckless homicide.

Ellis’ logic confuses the function of an involuntary intoxication
defense.

Involuntary intoxication is a defense to the crime charged if, as a
result of the intoxication, the defendant was unable to appreciate the
wrongfulness of the conduct at the time of the offense.[5] An involuntary
intoxication defense disputes the existence of intent.[6] If successful,
this defense would negate culpability for any offenses Ellis committed.[7]

This defense does not simultaneously establish the existence of
reckless conduct. Rather, a claim that a person acted “recklessly”
requires showing that “he engage[d] in the conduct in plain, conscious, and
unjustifiable disregard of harm that might result and the disregard
involve[d] a substantial deviation from acceptable standards of conduct.”
Ind. Code Ann. § 35-41-2-2 (West 1998). Therefore, to warrant a jury
finding of reckless homicide, Ellis must demonstrate that he acted
recklessly.

Consequently, a mere assertion of an involuntary intoxication
defense does not create a serious evidentiary dispute such that a jury
could conclude Ellis did not commit murder, but instead committed the
lesser included offense of reckless homicide.[8] The trial court did not
err by refusing to instruct the jury on reckless homicide because no
serious evidentiary dispute existed.

Criminal Recklessness. We have consistently held that criminal
recklessness is not an inherently included offense of attempted murder.
Wilson v. State, 697 N.E.2d 466, 477 (Ind. 1998). As for whether criminal
recklessness is a factually included offense of attempted murder, Wright,
658 N.E.2d at 567, the answer may be discerned from the charging
information.

The attempted murder counts, Count II and Count III, of the charging
information stated:
Ellis did attempt to commit the crime of Murder by knowingly or
intentionally firing a deadly weapon at and against the person of [the
victim], which conduct constituted a substantial step toward the
commission of the crime of Murder, contrary to the form of the
statutes in such cases made and provided by I.C. 35-41-5-1 and I.C. 35-
42-1-1(1) and against the peace and dignity of the State of Indiana.

(R. at 46-47.) Because this charge did not include any element of reckless
behavior, reckless homicide was not factually included in the crime
charged.[9] The trial court did not err in refusing to instruct the jury
on criminal recklessness because it was neither inherently nor factually
included in the crime charged.

II. Was the Sentence Erroneous?

A. No Violation of Article I, Section 16. Ellis first argues that his
165-year sentence violates Article I, Section 16 of the Indiana
Constitution, which states, “Cruel and unusual punishments shall not be
inflicted. All penalties shall be proportioned to the nature of the
offense.”[10]

In a recent examination of the purpose and scope of Section 16, we
stated, “The constitutional prohibition against cruel and unusual
punishments proscribes atrocious or obsolete punishments and is aimed at
the kind and form of the punishment, rather than the duration or amount.”
Dunlop, 724 N.E.2d 592, 597 (Ind. 2000)(citing Ratliff v. Cohn, 693 N.E.2d
530, 542 (Ind. 1998)). In Douglas v. State, we indicated that cruel and
unusual punishment is that which “constitutes only purposeless and needless
imposition of pain and suffering . . . .” 481 N.E.2d 107, 112 (Ind.
1985)(emphasis added). The 165-year sentence imposed upon Ellis does not
constitute cruel and unusual punishment.

As for the proportionality clause in Section 16, our Dunlop opinion
observed, “We will find a sentence not proportional ‘only when a criminal
penalty is not graduated and proportioned to the nature of an offense.’”
724 N.E.2d at 597 (quoting Conner v. State, 626 N.E.2d 803, 806 (Ind.
1993)(citation omitted)).[11]

The record clearly indicates that the trial judge considered the
nature of the offense when he fashioned the sentence.[12] (R. at 1165.)
The 165-year sentence is not disproportional to the nature of the offenses
committed.

B. Mitigating Factor Properly Omitted. Ellis next argues

that the trial court erred when it failed to find his “relatively young”
age a mitigating circumstance.[13] (Appellant’s Br. at 19.) Ellis was
twenty-one years old when he committed the offenses.

The finding of mitigating factors is not mandatory; it rests within
the discretion of the trial court. Wingett v. State, 640 N.E.2d 372, 373
(Ind. 1994). A court is not obligated “to credit or weigh a possible
mitigating circumstance as defendant suggests it should be credited or
weighed.” Archer v. State, 689 N.E.2d 678, 684 (Ind. 1997). “Only when
the trial court fails to find a significant mitigator that is clearly
supported by the record is there a reasonable belief that it was improperly
overlooked.” Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997).

Focusing on chronological age is a common shorthand for measuring
culpability, but for people in their teens and early twenties it is
frequently not the end of the inquiry. There are both relatively old
offenders who seem clueless and relatively young ones who appear hardened
and purposeful. Ellis has not persuaded us that the trial court abused its
discretion in declining to give mitigating weight to the fact that he was
twenty-one at the time of the crime. See, e.g., Johnson v. State, 725
N.E.2d 864, 868 (Ind. 2000)(age of twenty does not compel finding of
mitigation). Compare Trowbridge v. State, 717 N.E.2d 138, 149-50 (Ind.
1999)(trial court abused its discretion in rejecting fourteen-year-old
defendant’s age as a mitigating factor).

C. Consecutive Sentence Exceeded Statutory Limitation. Ellis contends
that the court erred in ordering consecutive maximum sentences for murder
and two counts of attempted murder.

He relies on Indiana Code § 35-50-1-2(c), which states in part:
The court may order terms of imprisonment to be served consecutively
even if the sentences are not imposed at the same time. However,
except for crimes of violence, the total of the consecutive terms of
imprisonment, . . . to which the defendant is sentenced for felony
convictions arising out of an episode of criminal conduct shall not
exceed the presumptive sentence for a felony which is one (1) class of
felony higher than the most serious of the felonies for which the
person has been convicted.

“Crimes of violence” is a defined term, a straightforward list, including
such crimes as murder and aggravated battery. It does not include
attempted murder. Ind. Code Ann. § 35-50-1-2(a)(West 1998). Ellis
therefore argues that this statutory limit applies to his two attempted
murder convictions, such that the total sentence for his two attempted
murders should not exceed the presumptive sentence for murder, fifty-five
years (one felony class higher than attempted murder).

The State responds with two arguments. First, the State claims that
the limitation of consecutive sentencing does not apply because a lesser
included offense of attempted murder, i.e. aggravated battery, is
specifically listed in the statute as a crime of violence.

In support of this argument, the State relies on Jackson v. State, 698
N.E.2d 809 (Ind. Ct. App. 1998), in which the court determined that even if
the crime charged, (there, as here, attempted murder) is not specifically
listed in the statute, it may nevertheless be excluded from the sentencing
limitation. Id. at 813-14. Relying on Johnson v. State, 464 N.E.2d 1309,
1311 (Ind. 1984), the Jackson court decided that aggravated battery was a
lesser included offense of attempted murder because the “charging
information contain[ed] all the essential elements necessary to convict the
defendant of battery.” Jackson, 698 N.E.2d at 813. Consequently, the
Jackson court held, in light of the information and the evidence presented
at trial, “the restrictions of the sentencing statute do not apply . . . .”
Id. at 814.

Our Johnson opinion seems ill-suited for this purpose. The issue in
Johnson was whether aggravated battery could be a lesser included offense
of attempted murder as part of its determination that a jury instruction
stating the claim was proper. Johnson, 464 N.E.2d at 1310-11.

A better analysis of the consecutive sentencing statute appears in
Ballard v. State, 715 N.E.2d 1276 (Ind. Ct. App. 1999). In Ballard, the
issue was whether battery as a class C felony was intended to be included
as a crime of violence. Id. at 1279. In considering whether the statute
was ambiguous and required interpretation, the court stated, “[T]he statute
is clear. The legislature delineated the exact crimes by name and citation
that were to be considered violent crimes.” Id. at 1280. The court
observed that if the legislature had intended to include other crimes, then
the offense “would have appeared in [the] Indiana Code section.” Id. We
agree.

Second, the State argues that Ind. Code § 35-50-1-2(c) does not apply
at all as long as any of the convictions for which Ellis received
consecutive sentences was a crime of violence. This argument relies on
Payne v. State, 688 N.E.2d 164 (Ind. 1997).

In Payne, and in Greer v. State, 684 N.E.2d 1140 (Ind. 1997), we
examined a previous version of the statute in the course of determining
whether various convictions fell within the sentencing limitation. The
statute then in effect exempted “murder and felony convictions for which a
person receives an enhanced penalty because the felony resulted in serious
bodily injury” from the limitation. Payne, 688 N.E.2d at 165; Greer, 684
N.E.2d at 1141.[14] We applied a multiple step process to facilitate this
determination. The second step of inquiry questioned whether any of the
consecutively sentenced convictions satisfied the statutory exemption.
Payne, 688 N.E.2d at 166.

In Payne and Greer, the challenged consecutive sentences were either
all covered by the limit or all not covered. Payne, 688 N.E.2d at 166;
Greer, 684 N.E.2d at 1142-43. We therefore were not called upon to decide
how the statute is applied when less than all of the crimes on which
sentencing is being imputed are covered.

Construction of the statute is necessary because it involves some
ambiguity as to whether the existence of one crime of violence is
sufficient to exempt each of the consecutively sentenced convictions from
the statutory limitation.

“[T]he rule of lenity requires that criminal statutes be strictly
construed against the State.” Walker v. State, 668 N.E.2d 243, 246 (Ind.
1996)(citing Bond v. State, 515 N.E.2d 856, 857 (Ind. 1987)). Adherence to
this rule requires that we interpret the statute to exempt from the
sentencing limitation (1) consecutive sentencing among crimes of violence,
and (2) consecutive sentencing between a crime of violence and those that
are not crimes of violence. However, the limitation should apply for
consecutive sentences between and among those crimes that are not crimes of
violence.

Therefore, the trial court erred when it ordered Ellis’ sentences for
the two counts of attempted murder to be served consecutively for a total
term of 100 years. This portion of the sentence exceeded the statutory
limitation. The limitation should have been fifty-five years for
consecutive sentencing, i.e., the presumptive sentence for the felony one
class higher than attempted murder.

The trial court did not err, however, by ordering the murder sentence
served consecutively to the two counts of attempted murder without
limitation. Therefore, Ellis may properly be sentenced for sixty-five
years for murder, to be served consecutively with a fifty-five year
sentence for the attempted murders, resulting in a total sentence of one
hundred and twenty years.

Conclusion

We reverse the decision of the trial court in part and affirm in
part, and remand for sentencing as indicated.

Sullivan and Rucker, JJ., concur.
Boehm, J., dissents in part with separate opinion in which Dickson, J.,
concurs.
ATTORNEY FOR APPELLANT

Donald C. Swanson, Jr.
Fort Wayne, Indiana

ATTORNEYS FOR APPELLEE

Karen Freeman-Wilson
Attorney General of Indiana

Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, Indiana
____________________________________________________________________________
_

IN THE

SUPREME COURT OF INDIANA

________________________________________________________________

ADAM C. ELLIS, )
)
Appellant (Defendant Below), )
)
v. ) Indiana Supreme Court
) Cause No. 01S00-9910-CR-632
STATE OF INDIANA, )
)
Appellee (Plaintiff Below). )
________________________________________________________________________

APPEAL FROM THE ADAMS CIRCUIT COURT
The Honorable Mark A. McIntosh, Judge
Cause No. 01C01-9808-CF-27
________________________________________________________________________

ON DIRECT APPEAL

________________________________________________________________________

October 18, 2000

BOEHM, J., dissenting in part.
I concur in Part I of the majority’s opinion but respectfully dissent
from the majority’s conclusion that the trial court erred in imposing
consecutive sentences for the multiple attempted murders. Indiana Code
Section 35-50-1-2 limits a trial court’s ability to impose consecutive
sentencing for multiple crimes which arise out of a single “episode of
criminal conduct.” This limitation does not apply to “crimes of violence,”
a term defined in the statute to include murder, all Class A felonies with
four exceptions,[15] all Class B felonies with three exceptions,[16] and
involuntary manslaughter and reckless homicide, both Class C felonies. The
majority concludes that because the statutory list of “crimes of violence”
does not include “attempted murder,” the trial court’s imposition of
consecutive fifty-year sentences for Ellis’ two attempted murder
convictions was erroneous. For the reasons given below, I believe the
statute includes attempted murder as a “crime of violence” where its
commission includes a lesser offense that is itself a “crime of violence.”
That is the case here where the attempted murders were also aggravated
batteries because the two victims sustained serious bodily injuries. I
would hold the limitation in Indiana Code Section 35-50-1-2 inapplicable.
I do not agree with the majority that the term “crimes of violence”
is unambiguous in its omission of attempted offenses. Although this is the
first case in which this Court has considered whether attempted murder is a
“crime of violence” under Indiana Code Section 35-50-1-2, the Court of
Appeals has published two opinions on the issue, with very different
results. In Maxwell v. State, the Court of Appeals held that the current
statute is unambiguous and that because attempted murder is not included in
the list of “crimes of violence” it is subject to the limitation on
consecutive sentencing. 731 N.E.2d 459, 464 (Ind. Ct. App. 2000).
However, in 1998, the Court of Appeals held that the trial court was not
prohibited from imposing consecutive sentences where the defendant could
have been convicted of aggravated battery for the acts that led to his
multiple convictions of attempted murder. The Court of Appeals reasoned
that because aggravated battery is explicitly included in the list of
“crimes of violence,” attempted murder―or at least the attempted murder
before the court―was included by implication. Jackson v. State, 698 N.E.2d
809, 813-14 (Ind. Ct. App. 1998).
In my view, there is no “plain, ordinary and usual meaning” of this
statute without resorting to other rules of construction. Familiar rules
are relevant here. The goal of statutory construction is to determine,
give effect to, and implement the intent of the legislature. Collier v.
Collier, 702 N.E.2d 351, 354 (Ind. 1998). The statute is examined as a
whole and it is often necessary to avoid excessive reliance on a strict
literal meaning or the selective reading of individual words. Id.; Park
100 Dev. Co. v. Indiana Dep't of State Revenue, 429 N.E.2d 220, 222 (Ind.
1981). The legislature is presumed to have intended the language used in
the statute to be applied logically and not to bring about an unjust or
absurd result. Riley v. State, 711 N.E.2d 489, 495 (Ind. 1999). We
conventionally construe penal statutes strictly against the State, Smith v.
State, 675 N.E.2d 693, 697 (Ind. 1996), but they are not to be read so
narrowly that they exclude cases they fairly cover, Cape v. State, 272 Ind.
609, 613, 400 N.E.2d 161, 164 (1980).
The basic purpose of this “episode” statute seems clear to me. By
defining “crimes of violence” as a category of crimes not subject to the
consecutive sentencing limit, the legislature demonstrated its intent to
differentiate between two kinds of criminal acts―offenses against the
person and offenses against property―and to restrict prosecutorial “piling
on” as to the latter. Without exception, the defined “crimes of violence”
are offenses against the person. Even robbery and burglary, which are
essentially offenses against property, are included only when they reach
the level of Class A or B felonies, that is, when they are committed with a
deadly weapon or result in bodily injury. Of the category of offenses
against the person, the only Class A or B felonies that are excluded from
the definition of “crimes of violence” are Class A and B vicarious sexual
gratification and Class A and B sexual misconduct with a minor. However,
those two crimes, if they rise to the level of a Class A or B felony, may
be charged as Class A or B rape or criminal deviate conduct, both of which
are excepted from the consecutive sentencing statute. As a result,
virtually every offense against the person that could result in the
conviction of a Class A or B felony is a “crime of violence.” An attempted
murder, requiring the specific intent to take a life where the substantial
step to that end is itself a battery resulting in severe bodily injury is
surely as much a “crime of violence” as many others on the list.
The historical evolution of Indiana Code Section 35-50-1-2 also
strongly suggests that the legislature intended an attempted murder
accomplished by an aggravated battery to be excepted from the limitation on
consecutive sentencing. The original statute addressing consecutive or
concurrent sentencing was added to the Code in 1976. It simply gave trial
courts broad authority to determine whether sentences should be served
concurrently or consecutively. Ind. Code § 35-50-1-2 (1977). The
restriction on consecutive sentences for crimes arising from a single
“episode” of criminal conduct was added to the statute in 1994:
(a) Except as provided in subsection (b), the court shall determine
whether terms of imprisonment shall be served concurrently or
consecutively. The court may consider aggravating and mitigating
circumstances in IC 35-38-1-7.1(b) and IC 35-38-1-7.1(c) in making a
determination under this subsection. The court may order terms of
imprisonment to be served consecutively even if the sentences are not
imposed at the same time. However, except for murder and felony
convictions for which a person receives an enhanced penalty because
the felony resulted in serious bodily injury if the defendant
knowingly or intentionally caused the serious bodily injury, the total
of the consecutive terms of imprisonment, exclusive of terms of
imprisonment under IC 35-50-2-8 and IC 35-50-2-10, to which the
defendant is sentenced for felony convictions arising out of an
episode of criminal conduct shall not exceed the presumptive sentence
for a felony which is one (1) class higher than the most serious of
the felonies for which the person has been convicted.

Ind. Code § 35-50-1-2 (1994). The approach of the 1994 statute was clear.
A trial court’s ability to impose consecutive sentences for crimes arising
out of a single episode was restricted. But that restriction did not apply
to a series of violent felonies committed “knowingly or intentionally” and
resulting in “serious bodily injury.” Only a few of the most serious
felonies were subject to the harsher consecutive sentencing rules. By
virtue of their statutory elements, murder and aggravated battery could
result in consecutive sentences. Attempted murder, kidnapping, rape,
criminal deviate conduct, child molesting, robbery, burglary, and arson,
were excepted from the restriction only if they resulted in “serious bodily
injury.” Under the 1994 statute, Ellis’ convictions for the deliberate
acts of shooting Matt Bebout in the head and Curt Krauss in the head and
the hand would clearly have been excepted from the limitation on
consecutive sentences for crimes arising out of a single episode. Greer v.
State, 684 N.E.2d 1140, 1142 n.7 (Ind. 1997) (applying the 1994 statute:
“we hold that the statutory limitation will apply to an attempted murder
conviction unless the defendant received ‘an enhanced penalty because the
felony resulted in serious bodily injury if the defendant knowingly or
intentionally caused the serious bodily injury’”).
In 1995, the legislature amended the statute to its current form. It
changed the description of crimes that are excepted from the limitation on
consecutive sentencing to “crimes of violence” and created the list of
those crimes. In doing so, the legislature significantly broadened the
exception to permit consecutive sentences for many crimes that were not
excepted by the 1994 language. Many of the crimes added to the excepted
list do not necessarily result in serious bodily injury, or may be
committed with a lesser degree of mens rea. It seems obvious to me that
the legislature’s 1995 changes, which greatly expanded the crimes excepted
from the limit on consecutive sentencing, did not simultaneously intend to
remove the exception for attempted murders resulting in serious bodily
injury.
In analyzing the 1994 version of the statute, we noted that:
It appears to us that the legislature’s intent with the statute here
was to limit the use of consecutive sentences except where serious
bodily injury occurred. Because the crime of attempted murder will at
times involve serious bodily injury (as here) and at times not (as
where a defendant fires a weapon at the victim but misses), we think
it more consistent with the legislature’s intent to treat attempted
murder as a felony distinct from murder.

Greer, 684 N.E.2d at 1142 n.7. We thus recognized that many attempted
murders are also aggravated batteries, i.e. batteries resulting in serious
bodily injury. Aggravated battery is included in the list of “crimes of
violence.” If an aggravated battery is “factually included,” to borrow a
phrase from Wright v. State’s explanation of the right to an instruction on
lesser included offenses, 658 N.E.2d 563, 567 (Ind. 1995), I would find an
attempted murder to be a “crime of violence.”
It is true, of course, that the list of crimes of violence does not
include “attempted murder.” But each of the crimes identified in the
“episode” statute as a “crime of violence” is in turn defined by the
statute that lists its elements. No attempted crime is listed among the
crimes of violence. But unlike the identified offenses, attempted murder,
and all other attempted crimes, are the product of the attempt statute in
concert with the statute defining the elements of the offense. The attempt
statute also provides that the class of each attempted crime is the same as
the class of the consummated offense. Ind. Code § 35-41-5-1(a) (1998).
Murder is unique among these offenses in that it has no statutorily defined
“class.” The attempt statute addresses this by providing that attempted
murder is a Class A felony. It seems to me that the omission of attempted
murder is explained by its unusual statutory composition, not by an intent
to exclude it if, as is the case here, it is accomplished through a crime
that is listed.
Perhaps equally importantly, the majority’s construction seems to me
to produce results that cannot have been intended and appear to be
unconstitutional. It could not have been the legislature’s intent not only
to treat attempted murder more leniently than other violent crimes, but
also to punish a series of severely aggravated attempted murders within a
single episode at the presumptive fifty-five year term for murder, which is
only slightly more than the maximum for a single severely aggregated but
isolated act of attempted murder. Other even more bizarre results flow
from the majority’s conclusion. Multiple attempted murders stemming from a
single episode, if charged as counts of aggravated battery, produce
unlimited consecutive sentences because aggravated battery is plainly a
“crime of violence.” But if charged as the more serious attempted murders,
they are capped by the statute.
I am a supporter of and an adherent to the “rule of lenity” in
construing criminal statutes. Ross v. State, 729 N.E.2d 113, 116 (Ind.
2000). But I would not construe statutes to produce upside-down or absurd
results. Cf. Sales v. State, 723 N.E.2d 416, 421 (Ind. 2000). Indeed,
although the contention is not advanced by the parties, the majority’s
construction seems to me to run afoul of the proportionality requirement of
Article I, Section 16 of the Indiana Constitution. See Conner v. State,
626 N.E.2d 803, 806 (1993) (a six-year sentence for selling fake marijuana,
twice the maximum sentence for selling the same quantity of real marijuana,
violated the proportionality requirement). This provision prohibits a
penal code that penalizes a less serious crime more severely than a more
serious one. Although wide deference should be given to legislative
judgment in this arena, it seems inconceivable that attempted murder is
less serious than aggravated battery, which under many fact patterns is a
lesser included offense of attempted murder with intent to kill the only
element differentiating the two. Wilson v. State, 697 N.E.2d 466, 475
(Ind. 1998); Leon v. State, 525 N.E.2d 331, 332 (Ind. 1988). Nor can it be
less serious than armed robbery where, like attempted murder, in some cases
the victim suffers no physical harm.
In short, I agree with the reasoning of the Court of Appeals in
Jackson, which resolves the issues that I have with the majority’s
construction of the statute and prevents the upside-down result that I
believe flows from the majority’s interpretation. For all of the foregoing
reasons, I would interpret Indiana Code Section 30-50-1-2 to include
attempted murder resulting in severe bodily injury as a “crime of
violence.” I would therefore affirm the trial court’s imposition of a
total term of 165 years.
DICKSON, J., concurs.

-----------------------
[1] Three weeks earlier, Ellis had taped steel wool and an empty two-liter
plastic bottle to the barrel of the gun to create a silencer. (R. at 846-
847.) Ellis does not recall shooting the weapon. (R. at 854.)

[2] Ellis’ tendered instruction on criminal recklessness stated, in part:

Included in the crime of Attempt Murder, charged in this case, is the
offense of Criminal Recklessness. Criminal Recklessness is defined as
follows: A person who recklessly inflicts serious bodily injury on
another person commits criminal recklessness, a Class D felony.
However, the offense is a Class C felony if committed by means of a
deadly weapon.

(R. at 124.)

The instruction on reckless homicide stated, in part: “Included in the
crime of Murder charged in this case is the offense of Reckless Homicide.
Reckless Homicide is defined as follows: A person who recklessly kills
another human being commits reckless homicide, a Class C felony.” (R. at
128.)
[3] Indiana Code § 35-42-1-1 states that a person commits murder if he
“knowingly or intentionally kills another human being.” Indiana Code § 35-
42-1-5 states “[a] person who recklessly kills another human being commits
reckless homicide ....”
[4] At trial, Ellis presented testimony that Richardson put two “hits” of
LSD in Ellis’ slice of pizza. (R. at 903.) Ellis also presented expert
testimony explaining the effects of LSD intoxication. (R. at 979.) The
expert characterized LSD intoxication as “an alteration of the senses and
the emotions.” (R. at 1001.) The expert stated that he believed “with
medical probability that [Ellis] was in an LSD intoxicated state.” (R. at
997.) Based upon this information, Ellis asserted an involuntary
intoxication defense. (R. at 1095.)

[5] See Heyward v. State, 470 N.E.2d 63, 64 (Ind. 1984) (finding a similar
involuntary intoxication instruction, based upon previous versions of Ind.
Code §§ 35-41-3-5 and 35-41-3-6(a), was correct).

[6] In Wilson v. State, we discussed a defendant’s assertion, based upon an
insanity defense, that there was a “serious evidentiary dispute” regarding
his intent to commit murder. 697 N.E.2d 466, 474-75 (Ind. 1998). We
explained that his argument was misplaced because “[a]ny dispute raised by
the insanity defense concerns whether a defendant had any culpable intent
at all. The ‘serious evidentiary dispute’ called for by Wright is a
dispute over which offense a defendant may have committed, the lesser or
the greater.” Id. at 475. Therefore, we held that because the mere
assertion of an insanity defense did not create a “serious evidentiary
dispute,” the trial court did not err in refusing the defendant’s
instructions on reckless homicide. Id.

[7] Negating culpability would have been difficult, in light of Ellis’
declared intention a few weeks earlier to kill Angie and any person that
she dated, “because if he can’t have her nobody can.” (R. at 809-11.)

[8] Note, we do not hold that an involuntary intoxication defense precludes
an instruction on reckless homicide. Rather, we hold that this defense,
alone, does not establish the existence of a serious evidentiary dispute so
as to allow a jury to conclude that reckless homicide was committed instead
of murder.
[9] See Wilson, 697 N.E.2d at 477 (deciding, with respect to the analysis
of a similar charge, that criminal recklessness was not factually a lesser
included offense of the attempted murder).

[10] Ellis also argues that the sentence imposed by the trial court was
cruel and unusual punishment in violation of the Eighth Amendment of the
U.S. Constitution. (Appellant’s Br. at 19.) This claim is waived for
failure to provide authority concerning any applicable principles and to
make a separate argument as required by Ind. Appellate Rule 8.3(A)(7).
Dunlop v. State, 724 N.E.2d 592, 600 n.6 (Ind. 2000)(citing Kindred v.
State, 540 N.E.2d 1161, 1168 (Ind. 1989)).

[11] In Clark v. State, 561 N.E.2d 759, 765 (Ind. 1990), we noted that
“courts are not at liberty to set aside a legislatively sanctioned penalty
because it may seem too severe to the Court. [An] [a]ppellant does
nevertheless have a right to have the proportionality of his penalty
reviewed under the Indiana Constitution.”

[12] Aggravating factors included:

One, the gravity of the Defendant’s committed crimes far out weighs
his alleged good character and any prospect he may have had for
rehabilitation. Two, the seriousness of the crimes committed by their
varying nature invoke horror and repugnancy. Three, the extreme
brutality with which the crimes were committed. Four, the testimony
at trial shows two quotes, one, “He would kill her so that no one else
could have her” [sic], second, “I will kill her and the guy she is
with” [sic]. Following that, five, the intensive planning of the
crimes, although very short in time, A. Changing into black clothes
and gloves to commit the crimes, B. the silencer on the weapon, C. the
shooting with the intent to kill two people other than Angie Ellis to
eliminate possible witnesses, even kicking in the door to go into the
bedroom to shoot Mr. Krauss, showed an intense planning and awareness
of what he was doing. D. the shooting of Angie Ellis by firing not
one bullet but six bullets into her body.

(R. at 1165-66.)
[13] The court found one mitigating factor, “that there is no prior
criminal record.” (R. at 1165.)

[14] This language has since been repealed and replaced with the list now
at issue in this case.
[15] The following Class A felonies are defined as “crimes of violence”:
voluntary manslaughter (Ind. Code § 35-42-1-3); kidnapping (Ind. Code § 35-
42-3-2); rape (Ind. Code § 35-42-4-1); criminal deviate conduct (Ind. Code
§ 35-42-4-2); child molesting (Ind. Code § 35-42-4-3); robbery (Ind. Code §
35-42-5-1); and burglary (Ind. Code § 35-43-2-1). In addition to attempted
murder, three Class A felonies are not on the list: vicarious sexual
gratification (Ind. Code § 35-42-4-5); sexual misconduct with a minor (Ind.
Code § 35-42-4-8); and arson (Ind. Code § 35-43-1-1).
[16] The following Class B felonies are defined as “crimes of violence”:
voluntary manslaughter (Ind. Code § 35-42-1-3); aggravated battery (Ind.
Code § 35-42-2-1.5); rape (Ind. Code § 35-42-4-1); criminal deviate conduct
(Ind. Code § 35-42-4-2); child molesting (Ind. Code § 35-42-4-3); robbery
(Ind. Code § 35-42-5-1); and burglary (Ind. Code § 35-43-2-1). Three Class
B felonies are not on the list: causing suicide (Ind. Code § 35-42-1-2);
carjacking (Ind. Code § 35-42-5-2); and arson (Ind. Code § 35-43-1-1).