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ATTORNEYS FOR APPELLANT James H. Voyles Jennifer M. Lukemeyer Indianapolis, Indiana

ATTORNEYS FOR APPELLEE Steve Carter Attorney General of Indiana Michael G. Worden Stephen Creason Deputies Attorney General Indianapolis, Indiana

In the

Indiana Supreme Court
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No. 43S03-0506-CR-263 JASON PAUL DAVIDSON, Appellant (Defendant below), v. STATE OF INDIANA, Appellee (Plaintiff below).

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Appeal from the Kosciusko Circuit Court, No. 43C01-0205-MR-70 The Honorable Rex L. Reed, Judge _________________________________ On Petition to Transfer from the Indiana Court of Appeals, No. 43A03-0312-CR-522 _________________________________ June 28, 2006

Shepard, Chief Justice.

Appellant Jason Davidson offered expert testimony at trial to the effect that he was acting involuntarily when he shot and killed Samuel Creekmore. The trial court instructed the jury on the issue of voluntariness, but rejected Davidson's tendered instruction specifically defining

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"voluntary" and including voluntariness as an element of the crime. We hold that the trial court adequately instructed the jury on the issue of voluntariness. Davidson's defense was actually one of involuntary intoxication.

Facts and Procedural History

Davidson and Alicia Creekmore-Davidson married in 1995 and divorced in 2000, after Davidson discovered that Alicia was having an affair with Samuel Creekmore. Alicia and Creekmore married shortly thereafter. Despite the divorce and Alicia's remarriage, Davidson and Alicia still kept in contact and maintained a sexual relationship.

Davidson became depressed after the divorce and mentioned to friends and family that he wished Creekmore were dead. He also expressed an inclination to commit suicide. He began trying different anti-depressants and eventually settled on Zoloft.

On the night of the shooting, Davidson took one dose of Zoloft for his depression and an Ambien to induce sleep. He slept only briefly due to an unexpected visit from two friends around 9 p.m. They stopped by to recount their earlier run-in with Alicia, Creekmore, and Alicia's friend at a local restaurant. Alicia telephoned to tell her side of the story. During the friends' visit, the conversation turned to Creekmore, which is when Davidson told them that he could just shoot Creekmore and showed them a gun he had purchased.

After the visitors left, Davidson took a second Ambien and then drove about twenty minutes to Alicia's house in Warsaw, where Alicia and Creekmore had retired upstairs. He called Alicia on his cell phone, which irritated Creekmore, causing him to go downstairs. Alicia told Davidson he had irritated Creekmore, and Davidson asked what Creekmore was doing. Learning that Creekmore was downstairs, Davidson asked Alicia to hang on, then entered the house and shot Creekmore. Alicia ran downstairs to find Davidson with a gun in his hand and Creekmore lying on the floor. Davidson stated that he could not live like this and then left shortly before the police arrived.

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The State charged Davidson with murder and a firearm enhancement, and a jury found him guilty of murder. The trial court found three mitigating factors: a minimal risk that Davidson would commit another crime, the absence of a criminal record, and Davidson's positive contribution to society prior to the incident. It declined to reduce Davidson's sentence, however, saying that this would depreciate the seriousness of the crime. The court found this aggravator "simply for the limited purpose of offsetting the mitigating factors" and sentenced Davidson to fifty-five years in prison, the presumptive term. (Tr. at 704-05); IND. CODE ANN.

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Indiana Law