ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

C. Michael Steiner				Jeffrey Modisett

Hayes, Dant and SteinerWashington, IN					Attorney General of Indiana

Washington, IN

							Michael K. Ausbrook

							Deputy Attorney General

							Indianapolis, IN

IN THE

SUPREME COURT OF INDIANA

DANJO GRAZIANO,				)

							)

	Appellant (Defendant below),	)

							)

		v.					) Cause No. 42SOO-9603-CR-220

							)

STATE OF INDIANA,				)

							)

	Appellee (Plaintiff below).	)

APPEAL FROM THE KNOX CIRCUIT COURT

The Honorable Murphey C. Land, Judge

Cause No. 42C01-9508-CF-040

SHEPARD, Chief Justice.

	 A jury found Danjo Graziano guilty of murder, a felony,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.

	Facts

	On the night of August 1, 1995, Graziano was patronizing a bar

in Vincennes with Jeffrey Scott Morrison, Steven Tatum, Rita

Bilskie, April MacKinnon, and her son, Jake.  MacKinnon and her son

needed a place to stay for the night, and Tatum, Graziano’s

acquaintance, offered them his apartment. 

	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.

Discussion

	At trial, Graziano tendered proposed final instructions

regarding battery as a lesser included offense of murder.  The

court refused them.  Instead, the trial court instructed the jury

on Graziano’s potential accomplice liability for knowingly aiding

Morrison in committing the murder.

	Graziano claims he is entitled to a new trial because an

evidentiary dispute exists concerning his intent upon returning to

Tatum’s apartment.  He argues that he only intended to batter Tatum

upon returning to Tatum’s apartment, not to kill him.  Graziano 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.

Conclusion

	The judgment of the trial court is affirmed. 

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