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Pursuant to Ind.Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

FILED
Aug 12 2008, 9:24 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEY FOR APPELLANT: JULIE ANN SLAUGHTER Marion County Public Defender Agency Indianapolis, Indiana

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana MATTHEW WHITMIRE Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
ANTREAUN RICE, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 49A02-0801-CR-10

APPEAL FROM THE MARION SUPERIOR COURT The Honorable Paula Lopossa, Judge Pro Tempore Cause No. 49G01-0604-MR-72259

August 12, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

NAJAM, Judge

STATEMENT OF THE CASE Antreaun Rice appeals his conviction and sentence for Murder, a felony, following a jury trial.1 Rice raises two issues for review, namely: 1. Whether the trial court abused its discretion when it refused to instruct the jury on criminal recklessness. Whether Rice's sentence is inappropriate in light of the nature of the offenses and his character.

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We affirm and remand. FACTS AND PROCEDURAL HISTORY On April 17, 2006, in Indianapolis, Rice's girlfriend drove Rice and his cousin in her minivan to a gas station and a liquor store, where Rice bought a bottle of gin. Rice asked a child where his mother, Beverly Longstreet, lived, and the child pointed to a house across the street. Rice, his girlfriend, and his cousin then returned to his cousin's house, and Rice's girlfriend left. Shortly after, Rice and his cousin walked to Longstreet's home. There, Rice and his friend visited with Longstreet and three other women, and Rice drank the bottle of gin he had brought with him. After thirty to forty-five minutes, Rice's cousin left, and Rice asked if any of the women wanted a date. When the women refused Rice's advances, Rice became angry and called them "broke bitches" and other profane names. Transcript at 217. As he was leaving, he threw and broke a bottle near one of Longstreet's children on the home's front porch. Longstreet retrieved a baseball bat from the house and returned to the alley where Rice stood, continuing to argue with him. One of the other
Rice was also convicted of Attempted Murder, a Class A felony, and Carrying a Handgun Without a License, as a Class A misdemeanor, but the issues raised on appeal address only the murder conviction and his sentence.
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women retrieved a handgun from the house and stepped out onto the porch. Before leaving, Rice shouted, "I swear to God on my kids that every one of ya'll is going to die." Transcript at 118. Later that night, Longstreet was sitting in the living room with DeAndre Gaines, a fourteen-year-old child who had come to visit. The other children in the household were in bed, and Gaines was awaiting a ride home. Around midnight, a minivan pulled up in front of the home. Shortly after, Longstreet heard three gunshots. Gaines said he was shot and started up the stairs. Longstreet then realized that she had also been shot. She looked out the window toward the front porch and saw Rice standing on the porch. Rice then fled. Longstreet's daughter dialed 911. When Officer Ronald Clayton arrived at the scene, he entered the front porch and observed that the front room was lighted by a floor lamp. Through a window, he saw Longstreet sitting on the couch, and he observed a

large bullet hole in the window. On the porch near the window, Officer Clayton found a shell casing. When Officer Clayton entered the front room, he found Longstreet on the couch, leaning toward the window and holding a pillow over her stomach. He assessed her medical condition and then followed a trail of blood up some stairs. Officer Clayton found Gaines collapsed at the top of the stairs. Gaines had sustained a gunshot through his left hand and in his side, and his breathing was erratic. A short while later, Gaines lost consciousness. Longstreet and Gaines were transported to the hospital, where Gaines died from his wounds and Longstreet spent a week recovering.
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The State charged Rice with murder, a felony; attempted murder, a Class A felony; aggravated battery, as a Class B felony; and carrying a handgun without a license, as a Class A misdemeanor. A jury returned guilty verdicts on all charges, and the trial court entered judgment of conviction on the murder, attempted murder, and handgun charges. After a hearing, the court found no mitigators and two aggravators, namely, Rice's criminal history and the nature of the offenses, including the fact that the murder victim was his mother's only son. The court sentenced Rice to sixty-five years for murder, fifty years for attempted murder, and one year for carrying a handgun without a license. The court ordered the sentences to be served consecutively, for an aggregate sentence of 116 years. Rice now appeals. DISCUSSION AND DECISION Issue One: Jury Instructions The purpose of an instruction is to inform the jury of the law applicable to the facts without misleading the jury and to enable it to comprehend the case clearly and arrive at a just, fair, and correct verdict. Overstreet v. State, 783 N.E.2d 1140, 1163 (Ind. Ct. App. 2003), cert. denied, 540 U.S. 1150 (2004). Instruction of the jury is generally within the discretion of the trial court and is reviewed only for an abuse of that discretion. Id. at 1163-64. Rice contends that the trial court abused its discretion by refusing to instruct the jury on criminal recklessness as a lesser included offense of murder and by instructing the jury on transferred intent. We address each contention in turn.

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Criminal Recklessness Instruction Rice first contends that the trial court abused its discretion by refusing Rice's request for a criminal recklessness instruction2 on the murder charge. Thus, we review Rice's contention as an appeal from the trial court's refusal to instruct on a lesser included offense. We perform a three-part test to determine whether a trial court should have instructed a jury on a lesser included offense: First, the trial court should determine whether the lesser offense is inherently included in the charged offense. If the offense is not inherently included, then the trial court should determine if it is factually included in the charged offense. Finally, if the offense is either inherently or factually included in the charged offense, the court should examine the evidence and determine whether there is a serious evidentiary dispute about the element or elements distinguishing the greater from the lesser offense. Gale v. State, 882 N.E.2d 808, 814 (Ind. Ct. App. 2008) (citing Wright v. State, 658 N.E.2d 563 (Ind. 1995)). Where a trial court makes a finding as to the existence or absence of a substantial evidentiary dispute, we review the trial court's rejection of a tendered instruction for an abuse of discretion. Id. Addressing the first step of the test, we observe that "[c]riminal recklessness is an inherently lesser included offense for [m]urder." Miller v. State, 720 N.E.2d 696, 703 (Ind. 1999). Thus, we need not determine whether the offense is factually included in

Rice has not set out verbatim in the argument section of his brief the jury instructions at issue, nor has he cited to where we might find those instructions in the appendix. "When error is predicated on the giving or refusing of any instruction, the instruction shall be set out verbatim in the argument section of the brief with the verbatim objections, if any, made thereto." Ind. Appellate Rule 46(A)(8)(e). Ordinarily, an appellant waives the issue by failing to comply with this appellate rule. Dyer v. Doyle (In re Estate of Dyer), 870 N.E.2d 573, 581 (Ind. Ct. App. 2007), trans. denied. However, Rice provided a copy of the jury instructions appealed from at the back of his brief. Thus, we address the merits of Rice's argument. However, we remind counsel to comply with Appellate Rule 46(A)(8)(e) in the future.

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murder as charged, and we proceed to the next step in the test, determining whether there is a serious evidentiary dispute. In his brief, Rice argues that a serious evidentiary dispute exists concerning his mens rea. In support, Rice quotes the following colloquy between defense counsel and the court: Mr. M. Inman [defense]: Where you could see people is where

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