KIRSCH, Judge.
Following a jury trial, John W. Thomas ("Thomas") was convicted of attempted murder,
We affirm.
The facts most favorable to the verdict are that, on the evening of January 17, 2015, Damita Jaffe ("Jaffe") and her boyfriend Craig Robinson ("Robinson") were getting into Jaffe's vehicle when Thomas, whom Jaffe and Robinson knew, and his wife ("Annette") pulled up and parked. Thomas got out of his vehicle and approached Robinson, who also got out of his car, and the two exchanged words. Thomas's demeanor was aggressive, and Robinson smelled alcohol on Thomas's breath. Thomas asked, "[Y]ou think I'm playin'?" and then popped the trunk of his car to show Robinson that he had a shotgun in there. Tr. at 57. Jaffe's adult son, Bobby Vinson ("Vinson"), walked up to the scene, Thomas's attention turned to Vinson, and they argued. Thomas retrieved the shotgun and pointed it at Vinson for two to three minutes. Thomas put the gun back in the trunk, but thereafter, Thomas swung at Vinson, and the two fought. Jaffe attempted to defuse the situation, grabbing Thomas's arm. She smelled alcohol on his breath. Eventually, Thomas and Annette drove away.
A short time later, while Jaffe, Robinson, and Vinson were still outside, they heard gunshots. Thomas was fifty to seventy feet away, walking toward Jaffe's
Police later found Thomas and Annette at their home. They searched the car and found two empty vodka bottles. Police observed no injuries to Thomas when he was arrested later that night. The State initially charged Thomas with four counts of Level 1 felony attempted murder and one count of Level 5 felony robbery, but it later amended the charging information by removing a "knowing" mens rea from Counts 1 through 4 and removing the robbery charge. A four-day jury trial was held in December 2015.
Annette, who at the time of trial was facing criminal charges of robbery and criminal recklessness related to the January 17, 2015 incident and had been granted use immunity, testified that, on the night in question, Vinson had pointed a pistol at Thomas and had hit Thomas in the face with it. Annette said that Vinson hit her, as well. She and Thomas got back in their car, and that, as they drove away from the scene, she heard two "loud noises" that she believed were gunshots. Tr. at 310, 312. She believed that "they was following us shootin' at us[.]" Id. at 312. She said that Thomas's face was bloody from being hit by Vinson, describing it as "all messed up" and that he "had blood everywhere." Id. at 310. They stopped to wipe his face, and Thomas got out and popped the trunk and left. She did not see where he went, but heard two "big booms," and when she looked out, she saw Thomas running back to the car. Id. at 317-18. Thomas got in the driver's seat and said, "[T]he f*ck is shootin' at us[.]" Id. at 323. Thomas and Annette sped away while "tryin' to ditch them," but eventually the car's "back tire blew," the vehicle left the roadway, and, after a short ride with a person who offered assistance, they walked home. Id. at 325. Annette testified that Thomas was intoxicated that night. Id. at 330.
The trial court instructed the jury regarding the elements of attempted murder, as well as the following lesser-included offenses: Level 3 felony attempted aggravated battery; Level 5 felony attempted battery with a deadly weapon; Level 5 felony attempted battery resulting in serious bodily injury; and Level 6 felony criminal recklessness. Appellant's App. at 145-165. The trial court instructed the jury on the mens rea requirements for acting intentionally, knowingly, and recklessly. Id. at 168-170, 173. As Thomas was pursuing a claim of self-defense, the trial court instructed the jury on the elements of a self-defense claim. Id. at 166.
The trial court also read Final Instruction No. 28 regarding voluntary intoxication. It stated:
Id. at 167.
The jury found Thomas guilty of: (1) Level 1 felony attempted murder with respect to Vinson; (2) Level 3 felony attempted aggravated battery with respect to Jaffe; (3) Level 5 felony attempted battery with a deadly weapon with respect to Anna; and (4) Level 6 felony criminal recklessness with respect to Robinson. Id. at 185-205. The trial court imposed an aggregate term of thirty-five years executed. Thomas now appeals his attempted murder conviction.
Thomas asserts that he was "too intoxicated" to form a specific intent to kill Vinson and that the trial court committed fundamental error "when it instructed the jury that it could not consider Thomas's intoxicated state when determining whether Thomas possessed the intent to kill Bobby Vinson." Appellant's Br. at 7, 10.
We afford trial courts broad discretion in the manner of instructing the jury, and we review such decisions only for an abuse of that discretion. Minor v. State, 36 N.E.3d 1065, 1072 (Ind.Ct. App.2015), trans. denied. This Court will reverse a trial court's decision to give a particular instruction only if the giving of the instruction constituted an abuse of discretion. Id. In reviewing a preserved challenge to a jury instruction, the reviewing court considers: (1) whether the instruction is a correct statement of the law; (2) whether there was evidence in the record to support giving the instruction; and (3) whether the substance of the instruction is covered by other instructions given by the court. Hubbard v. State, 742 N.E.2d 919, 921 (Ind.2001). An improper instruction will merit reversal only if it "`so affects the entire charge that the jury was misled as to the law in the case.'" Id. (quoting White v. State, 547 N.E.2d 831, 835 (Ind.1989)).
Here, trial court gave Final Instruction No. 28, which in relevant part stated:
To preserve an instructional error for appeal, "the defendant must object to the proposed instruction, and such objection must be `sufficiently clear and specific to inform the trial court of the claimed error and to prevent inadvertent error.'" Minor, 36 N.E.3d at 1072 (quoting Fry v. State, 748 N.E.2d 369, 373 (Ind.2001)). At trial, Thomas did not object to Final Instruction No. 28 and, thus, has waived the issue for appeal. He correctly recognizes that he must establish fundamental error to succeed on appeal. Fundamental error is defined as an error so prejudicial to the rights of a defendant that a fair trial is rendered impossible. Perez v. State, 872 N.E.2d 208, 210 (Ind.Ct.App.2007), trans. denied. To be considered fundamental, an error "`must constitute a blatant violation of basic principles, the harm, or potential for harm must be substantial, and the resulting
As Thomas reviews for us on appeal, the defense of voluntary intoxication in Indiana enjoys a long and varied history, ranging from not being recognized as a defense in early common law, to being permitted "to the extent that it negate[d] specific intent," which was eventually codified as Indiana Code section 35-41-3-5(b), which was thereafter determined to be unconstitutional in Terry v. State, 465 N.E.2d 1085, 1088 (Ind.1984). See Appellant's Brief at 13-19. In 1996, the United States Supreme Court held that a state could prohibit a criminal defendant from offering evidence of voluntary intoxication to negate the requisite mens rea without violating the Due Process Clause of the United States Constitution. Montana v. Egelhoff, 518 U.S. 37, 56, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) ("The people of Montana have decided to resurrect the rule of an earlier era, disallowing consideration of voluntary intoxication when a defendant's state of mind is at issue. Nothing in the Due Process Clause prevents them from doing so, and the judgment of the Supreme Court of Montana to the contrary must be reversed."). Thereafter, in 1997, Indiana's legislature enacted Indiana Code section 35-41-2-5 ("the voluntary intoxication statute"), which provides:
Indiana Code section 35-41-3-5, to which the voluntary intoxication statute refers, states:
In Sanchez v. State, 749 N.E.2d 509, 519-21 (Ind.2001), a defendant challenged the voluntary intoxication statute and argued that it was error to give the voluntary intoxication instruction because it violated his right to present a defense under the Indiana Constitution.
Sanchez, 749 N.E.2d at 520. Sanchez argued that the voluntary intoxication instruction bound the jury "to find intent where it may not have been proved, or to disregard evidence that negates intent," but the Court was not persuaded:
Id. at 521. The Sanchez Court observed that the voluntarily intoxicated offender is "at risk for the consequences of his actions, even if it is claimed that the capacity has been obliterated to achieve the otherwise requisite mental state for a specific crime." Id. at 520.
Thomas argues on appeal that, although a defendant's voluntary act of becoming intoxicated satisfies the general intent to commit an offense, Indiana law treats attempted murder differently than other intent crimes, as it requires proof of specific intent to kill. Thomas relies on this "special treatment" given to attempted murder,
In Berry v. State, 969 N.E.2d 35 (Ind.2012), our Supreme Court — while addressing a related issue concerning whether Berry, who was convicted of attempted murder, had successfully raised an insanity defense at trial — acknowledged that voluntary intoxication is not a recognized defense. At Berry's bench trial for attempted murder for striking another person in the head with a claw hammer, evidence was presented that Berry began abusing alcohol at age nine and became a daily drinker during high school. Id. at 36. He also used marijuana, cocaine, methamphetamine, LSD, mushrooms and ecstasy, and although at some point he stopped using drugs, he continued drinking alcohol. Id. He had been hospitalized multiple times for symptoms related to drug and alcohol abuse and bipolar disorder. Id. Berry pursued an insanity defense, but the trial court rejected it, finding, among other things,
Id. at 39 (emphasis added). The court of appeals reversed, finding that the trial court erroneously rejected Berry's insanity defense because Berry's case fit within the doctrine of "settled insanity."
On transfer, our Supreme Court addressed the "murky" "intersection of voluntary intoxication and insanity," and held that "[u]ltimately, it is for the trier of fact to determine whether the accused's conduct was the result of a diseased mind — regardless of the source of the disease — or was the result of voluntary intoxication." Id. at 43. The Berry Court concluded that, given the highly deferential standard of review and the evidence presented, it was within the trial court's discretion to find that Berry's behavior was caused by the voluntary abuse of alcohol and not a mental disease or defect as defined in Indiana's insanity statute. Id. at 44. In its analysis, the Court recognized — on two occasions — that temporary mental incapacity produced by voluntary intoxication "`is no legal excuse for, or defense to, a crime.'" Id. at 38 (quoting Jackson v. State, 273 Ind. 49, 52, 402 N.E.2d 947, 949 (1980)), and at 42. It further expressly noted the codification of this principle in Indiana Code section 35-41-2-5, the voluntary intoxication statute,
Given that the Indiana legislature has not expressly identified attempted murder as an exception to the law negating voluntary intoxication as a defense, and our Supreme Court has not expressed an indication that any such exception exists, we decline Thomas's invitation to create one. Final Instruction No. 28 was a correct statement of the law, and Thomas has not established that the trial court committed fundamental error when it instructed the jury.
Affirmed.
MAY, J., and CRONE, J., concur.