CONWELL v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] Using his laser sights, Tarron Conwell shot a handgun five times in the direction of three different law enforcement officers. The State charged Conwell with three counts of attempted murder, unlawful carrying of a handgun, and resisting law enforcement. After the trial court agreed to give a lesser-included instruction of criminal recklessness for one of the three attempted murder charges, a jury convicted Conwell of two counts of attempted murder and one count each of criminal recklessness, unlawful carrying of a handgun, and resisting law enforcement. Conwell now appeals, raising one issue for our review: Whether the trial court abused its discretion by refusing to give a lesser-included instruction of criminal recklessness for the other two attempted murder charges.

[2] We affirm.

Facts and Procedural History

[3] On June 23, 2023, law enforcement officers from the Delaware County Sheriff's Department and Selma Police Department arrived at Conwell's residence to execute a warrant for his arrest. The officers were in full uniform and marked vehicles. Deputy Carter Smithson activated his patrol vehicle's lights when he saw Conwell walking outside. After Conwell noticed Smithson, he turned around and ran away. Smithson exited his vehicle and pursued Conwell on foot, and Lieutenant Tyler Parks joined the pursuit. As he ran away, Conwell drew his handgun, turned on his laser sights, aimed at Smithson and Parks, and shot several times. As Conwell continued shooting, Deputy Timothy Mitchell drove his marked vehicle so that it separated Conwell from Smithson and Parks. Conwell continued shooting his gun until no rounds were left. Conwell became trapped beneath Mitchell's vehicle. Then, the officers disarmed and arrested Conwell. Conwell confirmed during his trial testimony that if he wanted to hurt someone, he would put his laser sights on. The recovered handgun's laser sights were on.

[4] The State charged Conwell with three counts of attempted murder as Level 1 felonies,¹ resisting law enforcement as a Level 5 felony,² and unlawful carrying of a handgun as a Class A misdemeanor ³ . During his jury trial, Conwell requested a jury instruction on the lesser-included offense of criminal recklessness as a Level 5 felony ⁴ for all three counts of attempted murder.⁵ After a discussion, the trial court agreed to give the lesser-included instruction of criminal recklessness as a Level 5 felony for the attempted murder charge involving Mitchell (the “Mitchell Count”), but it refused to give the instruction as to the attempted murder charges involving Smithson and Parks (the “Smithson Count” and the “Parks Count”). In denying the request for the Smithson and Parks Counts, the trial court commented, “[T]he facts don't support [the charge of criminal recklessness as a Level 5 felony] because it was not fired into an inhabited dwelling or other building or place where people are likely to gather.” Tr. Vol. II at 225. The trial court ultimately concluded that “a vehicle can be a place- I will give a lesser-included with regard to Timothy Mitchell, and only with regard to the Count of Timothy Mitchell ․” Id. at 228.⁶

[5] The jury convicted Conwell as charged on the Smithson and Parks Counts, unlawful carrying of a handgun, and resisting law enforcement. The jury also convicted Conwell of criminal recklessness as a lesser-included offense of attempted murder on the Mitchell Count. The trial court sentenced Conwell to a total of 79 years of incarceration. Conwell now appeals.⁷

Discussion and Decision

The Trial Court Did Not Err by Refusing to Give a Lesser-Included Offense Instruction

[6] Conwell argues that the trial court erred in instructing the jury. We review the trial court's decisions regarding jury instructions for abuse of discretion, Miller v. State, 188 N.E.3d 871, 874 (Ind. 2022), including “the court's refusal to give a tendered instruction,” Elmer Buchta Trucking, Inc. v. Stanley, 744 N.E.2d 939, 944 (Ind. 2001). “If a trial court rejects a tendered lesser-included offense instruction on the basis of its view of the law, as opposed to a finding that there is no serious evidentiary dispute, appellate review of the ruling is de novo.” White v. State, 849 N.E.2d 735, 739 (Ind. Ct. App. 2006) (alteration in original) (citing Brown v. State, 703 N.E.2d 1010, 1019 (Ind. 1998)).

[7] To the extent Conwell argues that the trial court should have given the lesser-included offense instruction for the Smithson Count and the Park Count, we cannot agree. In determining whether the trial court should have given an instruction for a lesser-included offense of the charged offense, the trial court conducts a three-part test. Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (citing Isom v. State, 31 N.E.3d 469, 485 (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016)). “The first two parts require the trial court to consider whether the lesser included offense is inherently or factually included in the greater offense.” Id. (citing Isom, 31 N.E.3d at 485). “If it is, ‘then the trial court must determine if there is a serious evidentiary dispute regarding the element that distinguishes the lesser offense from the principal charge,’ ” and, if so, the court must give the instruction. Id. (quoting Isom, 31 N.E.3d at 485).

[8] A person commits murder when the person “knowingly or intentionally kills another human being.” Ind. Code § 35-42-1-1(1). “A person attempts to commit a crime when, acting with the culpability required for commission of the crime, the person engages in conduct that constitutes a substantial step toward commission of the crime.” Id. § 35-41-5-1(a). “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.” Id. § 35-41-2-2(a). A person commits criminal recklessness, a Level 5 felony, when the person “recklessly, knowingly, or intentionally performs an act that creates a substantial risk of bodily injury to another person ․ by shooting a firearm into an inhabited dwelling or other building or place where people are likely to gather.” Id. § 35-42-2-2(b)(2).

[9] Indiana courts “have consistently held that criminal recklessness is not an inherently included offense of attempted murder.” Ellis v. State, 736 N.E.2d 731, 734 (Ind. 2000) (citing Wilson v. State, 697 N.E.2d 466, 477 (Ind. 1998)). Nor is it a factually included offense of attempted murder in the present case. “[W]hether criminal recklessness is a factually included offense of attempted murder ․ may be discerned from the charging information.” Ellis, 736 N.E.2d at 734. Here, the charging informations for all three attempted murder charges were the same except for the victims’ names:

The undersigned says that on or about June 23, 2023 in Delaware County, State of Indiana, Tarron H. Conwell did with the intent to kill [Law enforcement officer's name], engage in conduct that constituted a substantial step toward the commission of said killing, to-wit: by shooting at and/or in the direction of [Law enforcement officer's name];

Appellant's App. Vol. II at 16–18. The charging informations do not contain any language regarding reckless behavior. Therefore, criminal recklessness is not factually included. See Ellis, 736 N.E.2d at 735 (citing Wilson v. State, 697 N.E.2d 466, 477 (Ind. 1998)).

[10] Conwell attempts to avoid addressing the above standard by focusing on the meaning of the word “place” in the criminal recklessness statute. Conwell argues that the trial court erred by not giving a lesser-included offense instruction for the Smithson and Parks Counts because it defined “place,” as used in Indiana Code section 35-42-2-2(b)(2), too narrowly. Appellant's Br. at 11. Conwell argues that “shooting ․ into [a] place where people are likely to gather” can be any place where someone chooses to stand. Appellant's Brief at 12.

[11] “[W]e review issues of statutory interpretation de novo.” J.Q.R. v. State, 252 N.E.3d 919 (Ind. 2025) (citing Bojko v. Anonymous Physician, 232 N.E.3d 1155, 1158 (Ind. 2024)). In interpreting Indiana Code section 35-42-2-2(b)(2), we must “give effect to every word and ‘eschew those [interpretations] that treat some words as duplicative or meaningless.’ ” Cutchin v. Beard, 171 N.E.3d 991, 997 (Ind. 2021) (alteration in original) (quoting Estabrook v. Mazak Corp., 140 N.E.3d 830, 836 (Ind. 2020)). We also give the words and phrases used “their plain, or ordinary and usual,” meaning. I.C. § 1-1-4-1(1); see also Morales v. Rust, 228 N.E.3d 1025, 1054 (Ind. 2024) (quoting ESPN, Inc. v. Univ. of Notre Dame Police Dept., 62 N.E.3d 1192, 1195 (Ind. 2016)) (“When interpreting words in a statute, this Court's ‘first task’ is to assign words their ‘plain meaning’ ․”), reh'g denied (Apr. 22, 2024), cert. denied, 145 S.Ct. 177 (2024). “The meaning of doubtful words may be determined by reference to their relationship with other associated words and phrases.” ESPN, 62 N.E.3d at 1198 (quoting 600 Land, Inc. v. Metro. Bd. of Zoning Appeals of Marion Cnty., 889 N.E.2d 305, 311 (Ind. 2008)).

[12] Here, Conwell argues that “place” as described in Indiana Code section 35-42-2-2(b)(2) encompasses “the portion of space which [Smithson and Parks] occupied[.]” Appellant's Br. at 12. In making this claim, Conwell ignores the statute as a whole, which describes the types of places contemplated by the statute. As used in Indiana Code section 35-42-2-2(b)(2), “place” is limited by the associated phrases “inhabited dwelling,” “building,” and “where people are likely to gather.” I.C. § 35-42-2-2(b)(2); see ESPN, 62 N.E.3d at 1198. Therefore, as used in this statute, “place” does not include any “space in which one person ․ can sit or stand.” Appellant's Br. at 12 (quoting Am. Heritage Coll. Dictionary 1043 (3d ed. 2000)); see also Ponciano v. State, 851 N.E.2d 305, 308–09 (Ind. Ct. App. 2006) (“[W]e cannot conclude, as Ponciano does, that the phrase ‘a place where people would likely gather’ refers to all places where people could conceivably gather.”).

[13] Here, the lesser-included offense of criminal recklessness is neither inherently nor factually included in the greater offense of attempted murder, so we need not address the third part of the test—the existence of a serious evidentiary dispute. See Leonard, 80 N.E.3d at 885 (quoting Isom, 31 N.E.3d at 485). We also note that Conwell did not address the Leonard test in his brief, nor did he point to any evidence in dispute.⁸ See Appellant's Br. at 11–13. Even if we were inclined to stretch the bounds of review to interpret Conwell's statement that “the verdict on [the Mitchell Count] is highly inconsistent with the verdicts on [the Smithson and Parks Counts] in that [the Mitchell Count] involves reckless conduct and [the Smithson and Parks Counts] involve intent to kill,”⁹ Appellant's Br. at 12, as disputing intent to kill, we will let Conwell's own statements address this: “If I was aiming, I would have the [laser sights] on.” St. Ex. 30 at 12:00–12:06. Conwell testified that he turned the laser sights on, and when officers recovered the weapon, the laser sights were on. Our review of the record reveals no serious evidentiary dispute.

[14] Based on the foregoing, we cannot say the trial court erred by refusing to give Conwell's criminal recklessness instruction on the Smithson and Parks Counts. We therefore affirm the trial court's decision.

[15] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1.

2.   Id. at § 35-44.1-3-1(a)(3).

3.   Id. at § 35-47-2-1.5(b).

4.   Id. at § 35-42-2-2(b)(2).

5.   Conwell's tendered instruction included the base elements as a class B misdemeanor, but also included the elements as a Level 5 felony. On appeal, based upon Conwell's arguments regarding the definition of “place”, and the State's contention that Conwell was requesting the lesser-included instruction as a Level 5 felony, we do not analyze whether a request for a lesser included instruction as a class B misdemeanor would result in a different outcome.

6.   Apart from a singular mention of the elements of the three-part test set forth in Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017), there was no discussion in the trial court of the elements other than a concession that criminal recklessness is not inherently included in the greater offense of attempted murder. The trial court did not address whether the lesser instruction was factually included. Instead, the trial court skipped straight to its interpretation of the word “place.” The State argues that the court erred in giving the lesser included instruction as to the Mitchell Count. We do not address the State's contention.

7.   In his Statement of Facts, Conwell fails to support with citations to the record nearly all his statements of fact, as required by Indiana Appellate Rule 46(A)(6)(a). Also, in his Argument, Conwell fails to set out verbatim the instruction he argues the trial court erroneously refused to give, as required by Appellate Rule 46(A)(8)(e). We remind counsel that the purpose of our appellate rules—especially Appellate Rule 46 governing the content of briefs—“is to aid and expedite review and to relieve the appellate court of the burden of searching the record and briefing the case.” Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (emphasis added) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)). Due to the importance of the merits brought in this appeal, we choose not to resolve this matter through waiver.

8.   Conwell waived this particular issue for our review by failing to present cogent argument in support thereof. See App. R. 46(A)(8)(a); Miller v. Patel, 212 N.E.3d 639, 657 (Ind. 2023) (quoting Dridi v. Cole Kline LLC, 172 N.E.3d 361, 364 (Ind. Ct. App. 2021)) (“We will not step in the shoes of the advocate and fashion arguments on his behalf, ‘nor will we address arguments’ that are ‘too poorly developed or improperly expressed to be understood.’ ”).

9.   As Conwell acknowledges, the Indiana Supreme Court has held that “[t]he claim that a jury has rendered inconsistent verdicts in a criminal cause is not a valid basis upon which to challenge a conviction.” Easley v. State, 427 N.E.2d 435, 438 (Ind. 1981) (citing Hicks v. State, 426 N.E.2d 411 (1981)). Conwell provides no basis for overturning this prior precedent, so we will not address this argument. See State v. Timbs, 169 N.E.3d 361, 367 (Ind. 2021) (requiring a “compelling reason to deviate from stare decisis”).

Felix, Judge.

Mathias, J., and Foley, J., concur.