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Cody ALBERT, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff
 Cody Albert appeals his murder conviction, arguing that the trial court abused its discretion in instructing the jury regarding intent and in excluding certain evidence regarding his mental health history. We affirm.
Facts and Procedural History
 In September 2018, Albert had an argument with his girlfriend while on his lunch break from work. Afterward, he drove his SUV to his place of employment, but instead of returning to work, he sat in his vehicle smoking a cigarette and thinking about his conversation with his girlfriend. He texted his girlfriend an apology and wrote a suicide note. He then drove his SUV westbound on US 40 toward Greencastle. At one point, he stopped, crossed over the median, and began driving westbound in the eastbound lanes. Ron Patterson was driving eastbound on US 40 and saw Albert's SUV traveling toward him in the wrong lane. Patterson flashed his headlights to warn Albert that he was in the wrong lane. Patterson saw Albert's SUV drive into the median and continue westward. Albert then drove back onto an eastbound lane at a high rate of speed and crashed head on into Thomas Plasters’ Honda Civic. Plasters was killed upon impact due to massive injuries he sustained in the crash.
 Emergency personnel responding to the scene removed Albert from his vehicle and transported him to a hospital. Albert consented to a blood draw and admitted that THC would be present because he had smoked marijuana. Albert told police that he was driving on the wrong side of the road because he wanted to commit suicide.
 The State charged Albert with murder and level 5 felony causing death while operating a vehicle with a schedule I or II controlled substance. Albert asserted an insanity defense but withdrew it prior to trial. During trial, Albert offered evidence regarding his mental health history, which the trial court ruled was irrelevant and thus inadmissible. Albert tendered a final instruction on reckless homicide, which the trial court accepted over the State's objection. The State tendered a non-pattern instruction on inferring intent, which stated that the intent to kill may be inferred from the nature of the attack and the deliberate use of a deadly weapon in a manner likely to cause death or serious bodily injury. Appellant's App. Vol. 2 at 210. The trial court accepted the instruction over Albert's objection, explaining that mens rea was an important issue and that the instruction would assist both sides in presenting their closing arguments. Tr. Vol. 2 at 182. The jury convicted Albert as charged, and the trial court sentenced him to an aggregate term of fifty-five years. Albert appeals his murder conviction. Additional facts follow.
Discussion and Decision
Section 1 – The trial court did not abuse its discretion in instructing the jury regarding intent.
 “The purpose of a jury 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.’ ” Ramirez v. State, 174 N.E.3d 181, 199 (Ind. 2021) (quoting Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001)). We review a trial court's jury instructions for an abuse of discretion. Isom v. State, 31 N.E.3d 469, 484 (Ind. 2015), cert. denied (2016). “An abuse of discretion arises when the instruction is erroneous and the instructions taken as a whole misstate the law or otherwise mislead the jury.” Id. at 484-85. In reviewing a trial court's decision to give or refuse a tendered jury instruction, we consider: “(1) whether the instruction correctly states the law; (2) whether there is evidence in the record to support the giving of the instruction; and (3) whether the substance of the tendered instruction is covered by other instructions which are given.” Guyton v. State, 771 N.E.2d 1141, 1144 (Ind. 2002). “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016) (quoting Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001)).
 Albert challenges the instruction on inferring intent. Because his challenge involves mens rea, we begin with the instructions regarding the mens rea to prove murder and reckless homicide. To convict Albert of murder, the State was required to prove beyond a reasonable doubt that he knowingly or intentionally killed Plasters. Ind. Code § 35-42-1-1(1). To convict Albert of reckless homicide, the State was required to prove that he recklessly killed Plasters. Ind. Code § 35-42-1-5. The jury was instructed regarding the definitions of knowingly, intentionally, and recklessly as follows:
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 conduct. A person engages in conduct knowingly, if, when he engages in this conduct, he is aware of a high probability that he is doing so. A person engages in conduct intentionally, if, when he engages in this conduct, it is his conscious objective to do so.
Tr. Vol. 3 at 190-91. The challenged instruction on inferring intent provided,
The intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime. The intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely to cause death or serious bodily injury.
Id. at 194. In its closing rebuttal argument, the State asserted that Albert's SUV was a deadly weapon that he used in a manner likely to cause death or serious bodily injury.
 Albert acknowledges that the instruction correctly states the law but cautions that this principle has been applied in the context of the sufficiency of the evidence to support convictions for murder and attempted murder. See, e.g., Kiefer v. State, 761 N.E.2d 802, 805 (Ind. 2002) (“Intent to kill may be inferred from the nature of the attack and the circumstances surrounding the crime. [T]he trier of fact may infer intent to kill from the use of a deadly weapon in a manner likely to cause death or great bodily harm.”) (citation omitted); Burns v. State, 59 N.E.3d 323, 328 (Ind. Ct. App. 2016) (“The intent to kill may be inferred from the use of a deadly weapon. Intent may be inferred from the nature of the attack and the circumstances surrounding the crime.”), trans. denied. Albert asserts “that certain language or expression used by an appellate court to reach its final conclusion is not necessarily proper language for instructions to a jury.” Appellant's Br. at 10 (quoting Batchelor v. State, 119 N.E.3d 550, 563 (Ind. 2019)).
 Albert also recognizes that our courts have upheld this instruction in attempted murder cases. See, e.g., Bethel v. State, 730 N.E.2d 1242, 1246 (Ind. 2000) (finding no error, fundamental or otherwise, in giving “an instruction permitting the jury to infer intent to commit murder from the use of a deadly weapon in a manner likely to cause death or great bodily injury”); Reese v. State, 939 N.E.2d 695, 701 (Ind. Ct. App. 2011) (rejecting defendant's argument that identical instruction improperly highlighted particular evidence and noting that “[t]he jury was invited to consider the use of a deadly weapon and all of the attendant circumstances; this is necessarily the focus in an attempted murder case, as such cases frequently involve inherent ambiguity and turn upon intent”) (citation and quotation marks omitted), trans. denied.
 Albert opines that the challenged instruction is proper in attempted murder cases because to prove attempted murder the State must prove the specific intent to kill the victim. See Hopkins v. State, 759 N.E.2d 633, 637 (Ind. 2001) (“Because of the stringent penalties for attempted murder and the ambiguity often involved in its proof, this court has singled out attempted murder for special treatment. [A] conviction for attempted murder requires proof of specific intent to kill.”) (citation omitted). Nevertheless, Albert maintains that his case is not an attempted murder case and the instruction was improper because it misled the jury by lessening the State's burden to prove intent. He argues, “Were this the State's only burden, as this instruction suggests, nearly every vehicular crime that results in death would support a murder conviction.” Appellant's Br. at 13. We disagree.
 Although not cited by either party, we observe that our supreme court has examined, in murder cases, whether providing the jury with instructions similar to the one challenged here was erroneous. In Brown v. State, 691 N.E.2d 438 (Ind. 1998), Brown appealed his murder conviction and challenged the following instruction: “You are instructed that intent and purpose to kill may be inferred from the deliberate use of a deadly weapon in a manner calculated to produce death.” Id. at 444. Brown asserted that this instruction resulted in fundamental error because it created a mandatory presumption in favor of the State and therefore impermissibly shifted the burden of proof. Our supreme court concluded that the instruction created a permissive inference, not a mandatory presumption, and therefore no fundamental error occurred. Id. at 445.
 In Barany v. State, 658 N.E.2d 60 (Ind. 1995), Barany was charged with murder and found guilty but mentally ill. On appeal, he challenged the following instruction: “The intent to kill can be found from acts, declarations, and conduct of the defendant at or just immediately before the commission of the offense, from the character of the weapon used, and from the part of the body on which the wound was inflicted.” Id. at 65. After noting that Barany had failed to object at trial, our supreme court stated,
In any event, this instruction is a correct statement of the law in Indiana. We have repeatedly held that the intent to kill may be inferred from the use of a deadly weapon; the nature, duration, or brutality of the attack; and the circumstances surrounding the crime. Therefore, there was no error in the giving of this instruction.
Id. (citation omitted).1
 In contrast to the cases above, our supreme court concluded that an instruction on inferred intent was erroneous and required reversal of the defendant's voluntary manslaughter conviction in McDowell v. State, 885 N.E.2d 1260 (Ind. 2008). There, McDowell stabbed the victim in the neck, resulting in a one-inch cut. Although it appeared that the victim would recover, he died six days later from asphyxiation after an arterial blood clot broke loose and caused blood to enter his lungs. At trial, the court provided the following instruction over McDowell's objection: “The intent to kill may be inferred from evidence that a mortal wound was inflicted upon an unarmed person with a deadly weapon in the hands of the accused.” Id. at 1262.
 In concluding that the instruction improperly authorized a conviction without proof of the element of intent, our supreme court distinguished the instruction from those in Bethel and Brown:
In Bethel, this Court found no error in the giving of an instruction permitting the jury to infer intent to commit murder from the use of a deadly weapon in a manner likely to cause death or great bodily injury. 730 N.E.2d at 1246. The challenged instruction approved in Brown was somewhat similar: “You are instructed that intent and purpose to kill may be inferred from the deliberate use of a deadly weapon in a manner calculated to produce death.” 691 N.E.2d 438, 444 (Ind. 1998). But unlike the present case, the instructions in both Bethel and Brown, by including such words and phrases as “in a manner likely,” “deliberate,” and “in a manner calculated,” employed language specifically relating to the actor's state of mind and referring to evidentiary facts relevant to inferring criminal intent.
Id. at 1263. The McDowell court concluded,
The challenged instruction operated to relieve the State's burden to prove the requisite intent element: that the defendant knowingly or intentionally killed a person. It misled the jury by authorizing a conviction for this offense merely upon evidence that [the victim's] death resulted from a deadly weapon “in the hands of the defendant.”
The principal issue at trial was the defendant's intent, not her actions. The instruction was an incorrect statement of law, it misled the jury, and the error prejudiced her substantial rights with respect to the charge of Voluntary Manslaughter ․
Id. at 1264.
 Here, the challenged instruction is similar to those in Bethel and Brown, in that it authorizes an inference based on the “deliberate” use of a deadly weapon “in a manner likely to cause death or serious bodily injury” and on the “nature” and “circumstances” of the crime. This language refers to the actor's state of mind and to the facts relevant to inferring intent. Unlike the instruction in McDowell, the challenged instruction does not authorize a conviction based merely on the result of the actor's use of a deadly weapon. Albert's state of mind was the focus of this case. We conclude that the challenged instruction was a proper statement of the law, it did not lessen the State's burden of proof, and it did not mislead the jury. Accordingly, we find no abuse of discretion.
Section 2 – The trial court did not abuse its discretion by excluding evidence regarding Albert's mental health history.
 Albert contends that the trial court abused its discretion by excluding evidence of the history of his mental health challenges from the time he was fourteen, particularly his history of suicidal ideations and previous struggles with mental health treatment. We will reverse a trial court's ruling on the admissibility of evidence for an abuse of discretion, which occurs only “if that decision is clearly against the logic and effect of the facts and circumstances before the court, or the reasonable, probable, and actual deductions to be drawn therefrom.” Wilkerson v. Carr, 65 N.E.3d 596, 599-600 (Ind. Ct. App. 2015).
 He asserts that his mental health was discussed at trial, and that his mental health history, particularly being suicidal at age fourteen, was relevant to the issue of whether he knowingly or intentionally killed Plasters. See Ind. Evidence Rule 401 (providing that evidence is relevant if “it has any tendency to make a fact more or less probable than it would be without the evidence” and “the fact is of consequence in determining the action.”); Ind. Evidence Rule 402 (providing that relevant evidence is admissible unless otherwise provided by the United States or Indiana Constitutions, a statute not in conflict with the rules of evidence, the rules of evidence, or other rules applicable in courts of this state, and that irrelevant evidence is not admissible). We observe that Albert was permitted to offer evidence regarding his mental state on the day of the incident and the weeks immediately preceding it. We are unpersuaded that Albert's mental health history going back five years is relevant to determining whether he intended to kill Plasters. Rather, his mental health history was appropriately offered and considered as a mitigating factor for sentencing purposes. Tr. Vol. 3 at 233. We conclude that the trial court did not abuse its discretion in excluding evidence of Albert's history of mental health challenges.
 Based on the foregoing, we affirm Albert's murder conviction.
1. Also, this Court has addressed a somewhat similar instruction in a murder case. In Alexander v. State, 819 N.E.2d 533 (Ind. Ct. App. 2004), Alexander argued that the following instruction was an abuse of discretion: “Intent, for the purposes of a murder conviction, may be inferred from the severity, duration, or brutality of the attack.” Id. at 541. Although the court reversed the murder conviction on other grounds and remanded for a new trial, it addressed Alexander's argument that the instruction impermissibly drew the jury's attention to the brutality of the attack. The court, relying in part on Barany, concluded that the instruction was a correct statement of the law and therefore found no abuse of discretion. Id. The court further noted that the instruction did not mislead the jury, given that another instruction provided, “The jury may infer from all the surrounding circumstances what the intent of [Alexander] was at the time an act was committed.” Id. at 542. The court concluded that the instructions, “considered as a whole, adequately informed the jury regarding the intent element of murder.” Id.
Vaidik, J., and Altice, J., concur.
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Docket No: Court of Appeals Case No. 21A-CR-2617
Decided: August 24, 2022
Court: Court of Appeals of Indiana.
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