Johnson v. State

DeBRULER, Justice,

concurring in result.

Indiana Code § 35 — 11—1—2(3), effective at the time appellant committed the offense of which he stands convicted, defined “included offense” among other things as an offense that “differs from the offense charged only in respect that ... a lesser kind of culpability, is required to establish its commission.” Appellant was charged with battery, with having knowingly touched the putative victim in a rude, insolent, and angry manner, and with having inflicted serious bodily injury, a gunshot wound to the chest, upon him with a deadly weapon. The offense of criminal recklessness in one of its manifestations is the reckless infliction of serious bodily harm. Criminal recklessness is in this case a lesser and included offense in the battery, by reason of the above quoted statute, since it differs from the battery charged only in that it requires a lesser kind of culpability, i.e., recklessness. Appellant was therefore entitled, upon request and proffer thereof, to a correct instruction defining criminal recklessness as an offense which the jury might find him guilty of, in lieu of battery. I agree however, that the instructions which were tendered were insufficient for this purpose.

The two-step analysis in Lawrence v. State, (1978) 268 Ind. 330, 375 N.E.2d 208, to be applied by the trial court in determining whether to give a lesser included offense instruction was formulated as an attempt to deal rationally with the holding in Hash v. State, (1972) 258 Ind. 692, 284 N.E.2d 770, which requires the court to examine the proof in the case as well as the statute defining the crime charged, the statute defining the crime argued as being lesser and included, and the charging instrument. I dissented to that holding on *250the basis that the added requirement of considering the status of proof in a case was ill-conceived and harmful. Further experience with the rule has reaffirmed my belief that the Hash holding is mischievous, and should be abandoned, and I have retreated from that belief in opinions of this Court only in obeisance to stare decisis. I remain convinced that the determination of lesser and included offenses should be independent of the proof presented at trial. I do not share in the sense of disappointment with the jury system, which is central to the rationale of the Hash holding.

Indiana Code § 35-41-3-5, in the form in which it existed at the time of the crime charged, provided in section (b) that “voluntary intoxication is a defense only to the extent that it negates specific intent.” Under this formulation of the rule, drunkenness does not excuse any offense. However, if in proving the elements of an offense, the prosecution must prove a particular intent or state of mind, drunkenness may be considered, as it may show the incapacity of the mind to have formed that intent, and thereby negate the existence of a fact necessary to conviction. In proving the offense charged in this case, the prosecution was bound by the statute to prove not only that he touched the victim by discharging a weapon into his body, but that at the time of doing so, “he was aware of a high probability that he is doing so.” Ind.Code § 35^41-2-2. Such an awareness in my opinion is, under our present battery statute, a fact necessary to conviction. The trial court therefore did not, as I see it, contravene the law when it gave an instruction to the jury on the manner in which it should consider proof of intoxication.