ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
C. Michael Steiner Jeffrey Modisett
Washington, IN Attorney General of Indiana
Michael K. Ausbrook
Deputy Attorney General
SUPREME COURT OF INDIANA
DANJO GRAZIANO, ) ) Appellant (Defendant below ), ) ) v. ) Cause No. 42SOO-9603-CR-220 ) STATE OF INDIANA, ) ) Appellee (Plaintiff below ). )
SHEPARD, Chief Justice.
A jury found Danjo Graziano guilty of murder, a felony,See footnote 1 and the trial court sentenced him to sixty-five years in prison.
On appeal, Graziano raises a single issue: whether the trial court erred by refusing his proposed jury instruction on battery as a lesser included offense of murder. We find no error, and accordingly, affirm.
Later that evening, Bilskie drove Graziano, MacKinnon, Jake,
Tatum, and Morrison to Tatum's apartment. Shortly after arriving,
Morrison left to visit his estranged wife, Bilskie returned to the
bar, and Graziano went to get something to eat. Tatum then tried
to assault MacKinnon sexually, without success; MacKinnon pulled
away and left Tatum's apartment. Later, MacKinnon met Morrison and
explained what Tatum had tried to do. Morrison went to Tatum's
apartment, confronted him, and beat him. After the fight, Morrison
and MacKinnon took Jake to Bilskie's apartment.
Graziano joined them at Bilskie's apartment, and he and
Morrison decided to return to Tatum's to beat him further.
MacKinnon gave them a gun she had taken from her stepfather.
Once the two arrived at Tatum's apartment, a fight ensued.
Graziano punched Tatum in the face, knocked him to the floor, and
kicked him in the face. Graziano then pulled Tatum by his hair
into the bedroom. Graziano shot Tatum in the knee, but claims he
only intended to scare Tatum with the gun. Ultimately, two fatal
shots were fired into Tatum's head. Graziano and Morrison each
deny firing the fatal shots. Tatum died of multiple blunt injuries
and multiple gunshot wounds.
admits battering Tatum with his fists and firing a shot into
Tatum's knee. He denies firing the fatal shots. Graziano further
denies intending to aid, induce or otherwise cause Morrison to kill
Tatum. Thus, Graziano claims the trial court erred because his
tendered instructions not only accurately stated the law, but also
contained substance not covered by any other instruction.
Undisputably, battery can be a lesser included offense of
murder when the killing is performed by a touching. See Lynch v.
State, 571 N.E.2d 537 (Ind. 1991). To be entitled to a jury
instruction on battery, a serious evidentiary dispute must also
exist such that it could lead a jury to find the defendant guilty
of battery, but not of murder. Wright v. State, 658 N.E.2d 563
(Ind. 1995). A conviction will normally be reversed only if the
trial court's evidentiary determination was clearly erroneous.
Brewer v. State, 646 N.E.2d 1382 (Ind. 1995). A court's
determination will be clearly erroneous only if it is unsupported
by the facts and circumstances before it and the reasonable
conclusions that could be drawn from them. Id.
It would have been very difficult to find Graziano guilty only of battery based on the evidence adduced at trial. Graziano admits going to Tatum's apartment intending to scare and beat him. He acknowledges striking and kicking Tatum in the face, grabbing him by the hair, pulling him into the bedroom, cocking the gun to scare Tatum, and shooting him at least once. Graziano was
Morrison's accomplice and thus was not entitled to an instruction
containing a lesser included offense. Graziano either fired the
fatal shots or he helped Morrison do so. The trial court did not
commit clear error in refusing Graziano's tendered instructions.
Dickson, Sullivan, Selby, and Boehm, JJ., concur.
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