ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

Patricia Caress McMath			Jeffrey A. Modisett

Indianapolis, Indiana			Attorney General of Indiana

							Preston W. Black

							Deputy Attorney General

							Indianapolis, Indiana

IN THE

SUPREME COURT OF INDIANA

RAYLON YOUNG,					)

							)

	Appellant (Defendant Below),	)

							)

		v.					)  Cause No. 49S00-9701-CR-15

							)  

STATE OF INDIANA,				)

							)

	Appellee (Plaintiff Below).	)

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Gary L. Miller, Judge

Cause No. 49G05-9511-CF-173081

August 19, 1998

SHEPARD, Chief Justice.

	A jury convicted Raylon Young for the murder1 of Korey Roney.  The trial court sentenced Young to sixty-five years in prison.  Young contends that the trial court erred in refusing to instruct

the jury on reckless homicide and involuntary manslaughter.  We

agree it was error to refuse the tendered instruction on reckless

homicide.  Accordingly, we reverse and remand for a new trial.

	Facts

	On the night of November 19, 1995, the victim, Korey Roney,

and several friends, about nine people in total, were wrestling in

the front yard of Tijuan Johnson's home at 3142 North Orchard in

Indianapolis.  By around 8 p.m., the others had stopped in order to

watch the continuing contest between Korey and Marvin Graves which

was taking place near the house, just south of the front porch. 

Though it was dark, the small, treeless front yard was illuminated

by the home's porch light, by the neighbor's lights, and by the

street light to the south of the house.  Tijuan Johnson estimated

the distance from his front porch to the road at about twenty feet. 

	As the spectators cheered Korey and Marvin, a blue 1979

Oldsmobile Ninety-eight with a white top moving south on North

Orchard pulled up north of the home's driveway and stopped abruptly

between two cars parked on the street such that the Oldsmobile's

passenger side faced the front of the house.  All five eyewitnesses

who testified said that it was Raylon Young they saw in the

passenger side of the car.  Young was "hanging out the window with a gun" and yelled three times to the crowd gathered outside:

"What's up now, punk m_____ f______?" or some variation thereof. 

(Id.)  Raylon told the driver to "pull off", raised a handgun in his right hand and fired twice.  The car then went north up the

avenue.

	When asked to describe the apparent target of this first

series of shots, the witnesses gave various answers.  Willie Pargo

responded to the prosecutor's question, "Did he shoot towards the

group of people or away from them?" by answering, "Like I guess

towards."  (R. at 189-90.)  Pargo later added "[I] don't know who

he was shooting at."  (R. at 215.)  DanielDanille  Hampton, who was

approximately seven feet away from Raylon when he fired the first

two shots, responded "No" when Young's lawyer asked whether she

knew if Raylon was shooting at a specific person or whether she

knew if he was shooting "in the ground, at the sky, [or] just wild

shooting?"  (R. at 222, 230.)  Glen Underwood testified the gun was

aimed "[a]t all of us. . . . in the direction by the front porch

and around that whole area."  (R. at 247.)  Damon Brookins said he

saw only the first shot, but with regard to that shot; "He [Raylon]

was just shootin'.  I don't know if he had a main target, I don't 

know what, you know, I'm just seein' the gun, boom, dude was

pullin' off you know."  (R. at 269.)

	The physical responses of the crowd to the shots differed

according to where each individual stood.  Brookins and Pargo were standing on the front porch when the Oldsmobile pulled up.  Pargo

recognized Raylon and said:  "that's Raylon.  Open up the door." 

(R. at 262.)  Brookins scrambled into the house when he saw the

pistol and heard Raylon say "pull off" to the driver.  (R. at 263.) 

The others standing in the front yard dropped to the ground. 

Everyone except Korey got up after the car pulled away.  Korey had

been hit in the back of the head and was bleeding.

	The Oldsmobile turned around after moving down the street a

short ways and came "flyin' right back".  (R. at 247.)  When the

others realized that the car was returning they left Korey on the

ground and ran indoors.  Raylon was seated on the edge of the

passenger-side door with his arms extended over the car.  He fired

about four more shots as the car passed.  The Oldsmobile continued

north up Orchard until it reached 33rd, and then turned left

towards Arsenal Street.

	Korey lay prone on the ground.  The others called the police

who arrived about two minutes later.  The coroner reported at 8

a.m. the next morning that Korey Roney was dead and that the cause

of his death was a gunshot wound to the head.

	A subsequent police investigation provided additional details. 

Several bullet holes and a spent bullet were discovered at 3138

North Orchard Avenue, the house immediately south of 3142 North

Orchard.  This neighbor reported that her house had been "shot up" at the same time as the shooting described above took place.  (R.

at 428.)  Police discovered another possible spent bullet where

bloody towels which Korey's friends had used to cover Korey's wound

were found, i.e., near the bushes where Korey was before the

shooting began.  James Myer, a crime scene specialist from the

Indianapolis Marion County Forensic Services Agency, was unable to

say whether the bullets recovered were fired in random fashion or

specifically aimed by the shooter.

I.  Instructions on Lesser Included Offenses

	Patricia Caress McMath has filed an excellent brief on Young's

behalf, arguing among other things that the trial court wrongly

refused instructions on lesser included offenses.  The analysis set

forth in Wright v. State, 658 N.E.2d 563 (Ind. 1995), determines whether a court should accept a party's instructions on lesser

included offenses.  Under this test the court must first decide

whether the lesser included offense is either inherently or

factually included within the crime charged by the prosecutor's

information.  Id.  If the lesser offense is inherently or factually included, the trial judge must consider whether the evidence

provided by both parties creates a serious evidentiary dispute

about the element or elements which distinguish the greater from

the lesser offense.  Id.  The failure of a trial court to accept and give a properly tendered instruction when a serious evidentiary dispute exists is reversible error if a jury could conclude that

the lesser offense was committed but not the greater.  Id.

	The first two steps of the Wright test involve matters of law and an appellant need only demonstrate error to prevail on appeal. 

When an instruction is refused on grounds that a serious

evidentiary dispute does not exist, we reverse only when there is

an abuse of discretion.  See Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).  Where it is not apparent that the instruction was

refused on that basis, we review the trial court's decision de

novo.  Id.

II.  Young's Reckless Homicide Instruction

	Reckless homicide2 is an inherently included lesser offense of murder and thus the first part of the Wright test is satisfied.  Wright, 658 N.E.2d at 567.  The only difference between the two crimes is the mens rea the State must show to obtain a conviction. 

Compare Ind. Code Ann. § 35-42-1-1 (West Supp. 1997) with Ind. Code Ann § 35-42-1-5 (West 1986).  The issue in Young's case is thus

whether there is a serious evidentiary dispute about whether Young

knowingly or recklessly killed Roney when he fired the first shots from the Oldsmobile.3

	A person engages in conduct knowingly if, when he engages in

the conduct, he is aware of a high probability that he is doing so. 

Ind. Code Ann. § 35-41-2-2(b) (West 1986).  One engages in conduct

recklessly if he or she 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.  Ind. Code Ann. § 35-41-2-2(c) (West 1986).

	The trial court did not make findings regarding whether a

serious evidentiary dispute existed on the issue of Young's mens

rea.  Instead, the judge simply stated to the defense counsel that

Young was not entitled to lesser included instructions because he

had raised an alibi defense.4  (R. at 516.)  Presenting an alibi offensdefense does not automatically bar instructions on a lesser

included offense.  See, e.g., Shelby v. State, 258 Ind. 439, 440, 281 N.E.2d 885, 886 (1972) (defendant was charged with robbery and

presented an alibi defense but was convicted of theft, a lesser

included offense of robbery).  On the other hand, it may be

somewhat pertinent in making the central inquiry which remains

whether there is a serious evidentiary dispute in regard to the element or elements differentiating the greater offense from the

lesser.  Wright, 658 N.E.2d at 567.5

	The evidence about Young's state of mind at the time he fired

the shot that killed Korey Roney is both conflicting and obscure. 

Several witnesses acknowledged that they knew Raylon from the

neighborhood and there had been no problems between Raylon and

those who were in the front yard that night, some even stated that

Raylon was a friend.  (R. at 214-15, 230-31, 250, 269, 288, 242.) 

Willie Pargo and Glen Underwood testified that Raylon had no reason

to be upset with Korey, and that Raylon and Korey had engaged in

friendly conversation just a month and a half before the shooting. 

(R. at 214, 243-44.)  Raylon's harsh words, "what's up now, punk

m_____ f______?", however, could indicate to a jury that Raylon

desired to do more than simply scare those on the front lawn. 

Eyewitness testimony, indeed the testimony of those who were in the

line of fire, disputes this inference however.  No witness stated

that he thought Raylon was actually aiming his gun at any specific

person.  DanielDanille Hampton, only seven feet away from Raylon at the time of the first shots, could not determine whether Young was

shooting at anyone in particular or just engaged in wild shooting. 

Damon Brookins testified; "he was just shootin' . . . dude was

pullin' off, you know."  (R. at 269.)  Though shooting in the

direction of numerous people only twenty feet away is obviously

"reckless" behavior no matter whether one is in a set or moving

position, whether Raylon's acts are sufficient to show he was aware

of a high probability that his act would kill is less certain.

	While it is Raylon's mental state when he fired the shot which

actually killed Korey that would determine whether he committed

murder or reckless homicide, a jury might glean inferences from the

larger pattern of shots fired to determine this specific mens rea. 

Of the estimated six shots fired, one bullet hit Korey in the back

of the head and was discovered on the ground near where Korey lay

after being himt, another was discovered rather far away in a wall

of the home next door.  (R. at 367-68.)  These neighbors described

their home as being "shot up" at the same time the above events

occurred.  (R. at 428.)  A crime scene specialist was unable to say

whether the recovered bullets were fired at random targets or

specifically aimed.  Also possibly relevant is the fact that Raylon

returned and fired four more shots though all except Korey were

inside the home.  Korey was prone on the ground during this time

but was not shot again.

	A jury considering these facts could well have found Raylon was acting recklessly but not knowingly when he fired the shot that

killed Korey.  Firing a handgun towards a group of people only

twenty feet away is certainly an act committed in "plain,

conscious, and unjustifiable disregard" of the harm that might

result, and a "substantial deviation from acceptable standards of

conduct," Ind. Code Ann. § 35-41-2-2(c) (West 1986), but given the

specific facts of this case, a jury might reasonably decide that

such behavior did not reflect a knowing killing. 

	It is the jury's prerogative to decide such questions of fact. 

We conclude that the evidence before this jury represented a

genuinely disputed matter and that it was error to refuse the

instruction.  Young is entitled to a new trial.  Wright, 658 N.E.2d at 567.

III.  Young's Involuntary Manslaughter Instruction

	Young also asserts the trial court erred in refusing to accept

his instruction on involuntary manslaughter.  Whether involuntary

manslaughter is a lesser included offense in this case is a nice

question, but we are satisfied that it was properly refused because

there was not a serious evidentiary dispute.

	It is the intent element that distinguishes involuntary

manslaughter, battery, and criminal recklessness from murder.  Simpson v. State, 628 N.E.2d 1215, 1221 (Ind. Ct. App. 1994), trans. denied.  To prove murder, the State must show that the defendant knowingly killed.  Ind. Code Ann. § 35-42-1-1 (West Supp.

1997).  To prove involuntary manslaughter, the State need show only

that the defendant recklessly, knowingly, or intentionally

inflicted serious bodily injury on another person, and killed that

person in the course of such acts.  Ind. Code Ann. § 35-42-1-4

(West 1986); Ind. Code Ann. § 35-41-2-2 (West 1986).  This language

is admittedly broad, but our cases shed additional light on the

state of mind generally required to convict one of involuntary 

manslaughter by showing the defendant killed while violating our

criminal recklessness statute.

	As opposed to murder, the involuntary manslaughter statute,

when coupled with the criminal recklessness statute, is generally

applied to individuals who engage in random dangerous conduct which

is not necessarily directed at another, but which results in the

foreseeable death of another.  The paradigmatic case occurs when an

individual kills another while driving an automobile in a dangerous

manner.  In the present case, the facts indicate that Young knew

the gun he pointed and fired at the gathered crowd was loaded.  Cf. Al-Saud v. State, 658 N.E.2d 907 (Ind. 1995) (unloaded gun can create a sufficient risk of bodily injury to others to convict of

criminal recklessness).  Young also must have realized people were

standing in the general direction of his firing.  Finally, Young's

taunting words and the fact that he returned and fired more shots at the house absolvesresolves any dispute in our minds about whether

Young's acts were somehow analogous to our involuntary

manslaughter/criminal recklessness cases.  Accordingly, there is no

serious evidentiary dispute regarding whether Young committed the

factually included lesser offense of involuntary manslaughter but

not murder or reckless homicide.  The trial judge was correct in

refusing Young's tendered instruction on involuntary manslaughter.

Conclusion

	We reverse and remand for a new trial.

Dickson, Sullivan, Selby, and Boehm, JJ., concur.