Bruce A. Bennett v. State of Indiana (mem. dec.)

MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Sep 18 2020, 8:38 am court except for the purpose of establishing CLERK the defense of res judicata, collateral Indiana Supreme Court Court of Appeals estoppel, or the law of the case. and Tax Court

ATTORNEY FOR APPELLANT ATTORNEY FOR APPELLEE Tyler D. Helmond Ellen H. Meilaender Indianapolis, Indiana Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Bruce A. Bennett, September 18, 2020 Appellant-Defendant, Court of Appeals Case No. 20A-CR-646 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Jane Woodward Appellee-Plaintiff. Miller, Judge Trial Court Cause No. 71D01-1812-MR-11

Mathias, Judge. [1] Bruce A. Bennett (“Bennett”) was convicted in St. Joseph Superior Court of

murder. Bennett appeals and claims that the trial court erred by rejecting his

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request to instruct the jury regarding the lesser-included offense of reckless

homicide. [2] We affirm.

Facts and Procedural History [3] On the evening of December 14, 2018, Bennett went to a bar in South Bend,

Indiana where he drank several alcoholic beverages with his friends. Bennett

and his friends then proceeded to a local American Legion Post, where they

drank even more. At some point in the evening, Bennett got in his car to go

home. Instead of going home, however, Bennett drove his car down the

sidewalk in from of the shopping center where the American Legion was

located and struck a mailbox and newspaper box with his car, knocking the side

mirror off his car. Bennet parked the car in the parking lot and got out, leaving

the car running. He then reentered the American Legion Post. [4] The victim in this case, Teddy Braun (“Braun”), was standing outside the Post

with his friends and saw Bennett drive his car into the various obstacles and

reenter the Post. He followed Bennett back into the Post and told his friends,

“I’ve got this.” Tr. Vol. 1, p. 163. Once inside, Braun sat Bennett down in a

chair and restrained him by putting his arms around Bennett’s shoulder, placing

his arm across Bennett’s chest, and holding Bennett’s hands down. One of

Bennett’s friends approached and asked what was happening, but Bennett did

not respond and instead stared at Braun. A woman approached the two men

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and told them to “knock it off,” to which Bennett replied “he [Braun] won’t let

me leave.” Id. at 249–50. [5] Bennett then pulled out a handgun, placed the barrel of the gun against Braun’s

chest, and fired one time. The bullet went through Braun’s aorta and his left

lung, causing a catastrophic, and ultimately fatal, injury. Braun fell to the floor,

and other patrons disarmed Bennett and held him down until the police arrived.

Bennett later told the police that he thought Braun was trying to kill him and

that he “had to do what I had to do.” Ex. Vol., State’s Ex. 56. Bennett, who

had served in the Marines, also stated, “I’m a f***ing Marine. I was trained.

You don’t kill nobody unless you feel threatened. . . . I had no choice. . . . They

kill me. I gotta do what I gotta do.” Id. [6] As a result of this incident, the State charged Bennett on December 17, 2018,

with murder and also alleged that he had used a firearm in the commission of

the crime, which is a sentence enhancement. A four-day jury trial was held on

February 10–13, 2020. Bennett presented a claim of self-defense to the jury.

Bennett, who testified that he has chronic obstructive pulmonary disease

(“COPD”), claimed that Braun’s actions made it hard for him to breathe and

that he therefore believed he was going to die. Bennett testified that he put the

gun against Braun’s chest and shot him to stop Braun: “I knew what I was

doing. I couldn’t breathe. When you think you’re dying as a last resort you’re

going to use deadly force.” Tr. Vol. 2, p. 109.

Court of Appeals of Indiana | Memorandum Decision 20A-CR-646 | September 18, 2020 Page 3 of 8 [7] Toward the end of the trial, Bennet requested an instruction on the lesser-

included offense of reckless homicide. Although the trial court instructed the

jury regarding the defense of self-defense, it declined to give a reckless homicide

instruction. The jury rejected Bennett’s claim of self-defense and found him

guilty of murder. Bennet then admitted to the sentence enhancement of using a

firearm. The court subsequently sentenced Bennett to the minimum sentence of

forty-five years, to which it added a five-year sentence enhancement. Bennett

now appeals.

Standard of Review [8] The manner of instructing a jury is left to the sound discretion of the trial court.

Randall v. State, 115 N.E.3d 526, 529 (Ind. Ct. App. 2018) (citing Albores v. State,

987 N.E.2d 98, 99 (Ind. Ct. App. 2013), trans. denied). On appeal, we review the

trial court’s decision only for an abuse of that discretion. Id. When it comes to

the question of instructing the jury regarding a lesser-included offense, our

supreme court has “developed a three-part test that trial courts should perform

when called upon by a party to instruct on a lesser included offense to the crime

charged.” Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012).

First, the trial court must compare the statute defining the crime charged with the statute defining the alleged lesser included offense to determine if the alleged lesser included offense is inherently included in the crime charged. Second, if a trial court determines that an alleged lesser included offense is not inherently included in the crime charged under step one, then it must determine if the alleged lesser included offense is factually included in the crime charged. If the alleged lesser included

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offense is neither inherently nor factually included in the crime charged, the trial court should not give an instruction on the alleged lesser included offense. Third, if a trial court has determined that an alleged lesser included offense is either inherently or factually included in the crime charged, it must look at the evidence presented in the case by both parties to determine if there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense and if, in view of this dispute, a jury could conclude that the lesser offense was committed but not the greater. [I]t is reversible error for a trial court not to give an instruction, when requested, on the inherently or factually included lesser offense if there is such an evidentiary dispute.

Id. (citations and internal quotations omitted).

Discussion and Decision [9] Bennett insists that there was a serious evidentiary dispute regarding his mens

rea. Murder is statutorily defined as knowingly or intentionally killing another

human being. Ind. Code § 35-42-1-1(1). “A person engages in conduct

‘intentionally’ if, when he engages in the conduct, it is his conscious objective to

do so.” I.C. § 35-41-2-2(a). “A person engages in conduct ‘knowingly’ if, when

he engages in the conduct, he is aware of a high probability that he is doing so.”

Ind. Code § 35-41-2-2(b). In contrast, “[r]eckless homicide is defined,

unsurprisingly, as recklessly killing another human being.” McDowell v. State,

102 N.E.3d 924, 931 (Ind. Ct. App. 2018), trans. denied (citing Ind. Code § 35-

42-1-5). “A person engages in conduct ‘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

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conduct.” I.C. § 35-41-2-2(c). Thus, “the only distinguishing feature in the

elements of murder and reckless homicide is the mens rea required of each

offense.” McDowell, 102 N.E.3d at 931 (citing Evans v. State, 727 N.E.2d 1072,

1082 (Ind. 2000)). Accordingly, reckless homicide is an inherently included

offense of murder. Id. [10] Bennett argues that there was a serious evidentiary dispute regarding whether

he acted recklessly when he shot and killed Braun. Bennett points to the

evidence that he has COPD, that Braun held Bennett down by placing his arm

on his chest, that Bennett had difficulty breathing, that Braun refused to stop

despite being asked to do so by bar patrons, and that Bennett did not know

Braun, thought he was going to die, and did not intend to kill anyone. See

Appellant’s Br. p. 11. This evidence, Bennett claims, shows that there was a

serious evidentiary dispute regarding Bennett’s mens rea. We disagree. [11] Even if Bennett did not intent to kill Braun, he at the very least acted

knowingly. That is, by placing a handgun against Braun’s chest and pulling the

trigger, Bennett was aware of a high probability that Braun would die as a

result; he did not merely act recklessly. “When one aims a gun at another

person’s shoulder or upper chest area and fires it, he or she is reasonably aware

of a high probability that the shot may kill.” Etienne v. State, 716 N.E.2d 457,

463 (Ind. 1999). [12] Under these facts and circumstances, we conclude that the trial court did not

abuse its discretion by refusing to instruct the jury with regard to the lesser-

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included offense of reckless homicide because there was no serious evidentiary

dispute with regard to Bennett’s mens rea, i.e., whether he acted recklessly

instead of knowingly. See Wadsworth v. State, 750 N.E.2d 774, 776 (Ind. 2001)

(holding that there was no serious evidentiary dispute regarding defendants

mens rea where defendant fired a gun at close range into victim’s face); Sanders v.

State, 704 N.E.2d 119, 121–23 (Ind. 1999) (holding that there was no serious

evidentiary dispute regarding whether defendant acted recklessly instead of

knowingly where defendant fired a handgun directly at the victim at close

range); Etienne, 716 N.E.2d at 463 (holding that there was no serious

evidentiary dispute regarding defendant’s mens rea where he aimed a gun at the

victims upper chest and fired); Newman v. State, 751 N.E.2d 265, 269 (Ind. Ct.

App. 2001) (holding that there was no serious evidentiary dispute regarding

whether the defendant acted recklessly instead of knowingly where he pointed a

gun at the victim’s shoulder and fired). [13] Bennett’s citation to Webb, supra, is unavailing. Our supreme court emphasized

in Webb that, when determining whether there is a serious evidentiary dispute

that justifies the giving of an instruction on a lesser-included offense, the court

must look to the evidence presented by both parties. 963 N.E.2d at 1107. And

in Webb, considering the evidence presented by the State, there was evidence

that the defendant and his friends had been playing with a gun, that the weapon

had been loaded and unloaded at different points in the evening, that the

defendant had pointed it playfully at different people, and that, after he shot the

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victim, the defendant stated that he “didn’t mean to shoot [the victim], that it

was an accident.” Id. at 1108. [14] Here, in contrast, to stop Braun from restraining him, Bennet shot directly into

Braun’s chest, which is knowing, not reckless, behavior. See Sanders, 704

N.E.2d at 122 (“There is no evidence that [the defendant] was shooting at the

crowd on the stairs at random; rather, he shot only at [the victim].”). Because

there was no serious evidentiary dispute as to whether Bennett acted recklessly

instead of knowingly, the trial court properly denied his request to instruct the

jury regarding the lesser-included offense of reckless homicide.

Conclusion [15] The trial court did not err by declining to instruct the jury on the lesser-included

offense of reckless homicide. We therefore affirm the judgment of the trial

court. [16] Affirmed.

Bradford, C.J., and Najam, J., concur.

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