Vaidik, J.
To convict a defendant of murder or voluntary manslaughter, it is a basic tenet of criminal law that the State must prove that the killing was done “knowingly.” A person engages in conduct “knowingly” if, when they engage in the conduct, they are aware of a high probability that they are doing so Zachariah David Konkle fought Michael Steele, and Steele died. Before the fight, Steele had an enlarged heart, 90% occlusion of his coronary arteries, and a history of prior heart attacks. Konkle did not know about Steele’s heart problems, yet the State charged him with murder. During trial, the sole issue was whether Konkle knowingly killed Steele, as the State conceded that the killing was not intentional. The State’s position was that Steele died because of asphyxiation caused by Konkle placing Steele in a headlock or lying on his chest and thus he was guilty of knowingly killing Steele. Konkle argued that Steele would not have died but for his preexisting heart problems of which he was unaware. Thus, he argued that he was guilty of a lesser-included offense, either reckless homicide or involuntary manslaughter, neither of which requires a knowing killing. There was evidence from pathologists and eyewitnesses supporting both the State’s and the defense’s theories.
During closing argument, the State, for the first time, contended the “eggshell victim rule” applied, which relieved the State of proving that Konkle knowingly killed Steele. The State argued that the eggshell-victim doctrine provides that the defendant takes the victim as they find them and that “if one throws a piece of chalk at a victim with an eggshell skull and the chalk strikes the victim and fractures his skull, the perpetrator would be guilty even if he didn’t intend to bring bodily harm.” The jury found Konkle guilty of the lesser-included offense of voluntary manslaughter.
Because the issue was whether Konkle knowingly killed Steele and there was credible evidence supporting both theories, we find the prosecutor’s statement constituted misconduct and fundamental error. We reverse Konkle’s conviction and remand for a new trial.
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Konkle claims the State misstated the law when it said the eggshell-victim doctrine applied, which constitutes misconduct.
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These references to the eggshell-victim doctrine in Bailey and Defries are consistent with the principle that the knowingly or intentionally mens rea does not apply to the severity of an injury under our battery statutes because the severity of an injury is an aggravating factor and not an element of conduct. See Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016), trans. denied. But murder and voluntary-manslaughter cases are different because killing is an element of conduct to which the mens rea applies. See I.C. § 35-42-1-1 (providing that a person who knowingly or intentionally kills another human being commits murder); I.C. § 35-42-1-3 (providing that a person who knowingly or intentionally kills another human being while acting under sudden heat commits voluntary manslaughter).
Indeed, the State does not cite, nor can we locate, any Indiana cases where the eggshell-victim doctrine was applied to a murder or voluntary-manslaughter case to establish that the defendant knowingly or intentionally killed someone. A search of other jurisdictions doesn’t reveal many cases, but those we found support that the eggshell-victim doctrine doesn’t apply to murder or voluntary-manslaughter cases. As the Seventh Circuit has explained:
The eggshell-skull principle does not quite fit a case of intentional murder, for the murderer must intend his victim’s death and ordinarily this will presuppose some awareness of the likely consequences of his act. It is not murder to kill a person by a slight blow harmless to an ordinary person if you do not know the person is unusually vulnerable; there is even a presumption in Illinois that one who beats another with his bare fists does not intend to kill him.
Brackett v. Peters, 11 F.3d 78, 81-82 (7th Cir. 1993) (citation omitted); see also State v. O’Bannon, 274 P.3d 992 (Utah Ct. App. 2012). The State misstated the law during closing, which constitutes misconduct.
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The only issue for the jury to decide was whether Konkle was aware of a high probability that his actions would cause Steele’s death. It was undisputed that forty-two-year-old Steele had almost completely blocked coronary arteries that put him at risk of death, that he had prior heart attacks, that he likely suffered a heart attack during the fight, and that Konkle knew none of this. Konkle’s forensic pathologist testified that Steele died from a “terribly diseased heart” and heart attack. He explained that Steele had only scratches and bruises and that nothing would have prevented him from walking away from the fight had he not had a heart attack. The State’s forensic pathologist found that Steele died from mechanical asphyxiation and compression of the carotid arteries (either from a chokehold or compression of his chest) and concluded his testimony by saying that “if just the struggle caused a heart attack [he] would still call it a homicide.”
During closing, the State acknowledged it had to prove that Konkle acted knowingly to obtain a guilty verdict for murder. But then things started to go off the rails. First, the State told the jury that because Konkle seriously injured Steele, he knowingly killed him. That, however, is not the law. Instead, the State had to prove that Konkle was aware of a high probability that his conduct would kill Steele. See Pritcher, 208 N.E.3d at 664.
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At oral argument, the State, citing Pritcher, argued there is no fundamental error. In Pritcher, the defendant, who was 6’2” and weighed over 240 pounds, beat his seven-year-old son, L.P., who weighed seventy-seven pounds. L.P., who was covered in bruises from head to toe, died from blunt-force injuries to his head, and the defendant was charged with murder. During closing, defense counsel argued that the defendant did not “knowingly” kill L.P. In rebuttal, the State claimed the jury need only find that the defendant was aware of a high probability that he was beating L.P., not that he was aware of a high probability that he would kill L.P. The defendant did not object, and the jury found him guilty of murder. On appeal, we found that the State’s comments constituted misconduct but not fundamental error because the trial court’s instruction defining “knowingly” cured the State’s misstatement of the law. Id. at 665. Here, although the trial court also instructed the jury on the definition of “knowingly,” that did not cure the State’s misstatement of the law that the eggshell-victim doctrine applied.
The State’s prosecutorial misconduct made a fair trial impossible and constitutes fundamental error. We therefore reverse Konkle’s conviction for voluntary manslaughter and remand for a new trial.
Reversed and remanded.
Brown, J, concurs.
Bradford, J., dissents with separate opinion.
Bradford, J., dissents with opinion.
Because I disagree with the majority’s conclusion that Konkle was denied a fair trial due to fundamental error, I respectfully dissent.
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I would conclude, however, that Konkle has failed to make a cogent argument regarding fundamental error on appeal, citing a definition of fundamental error but failing to explain how the prosecutor’s statement made a fair trial impossible. Failure to make a cogent argument or cite legal authority or the record as required by Indiana Appellate Rule 46(A)(8) waives the issue for appeal. Pierce v. State, 29 N.E.3d 1258, 1267 (Ind. 2015). While I would stop here, I cannot agree that anything like fundamental error occurred in this case.
As an initial matter, although the issue is not squarely before us, I am inclined to agree with the proposition that the eggshell-skull doctrine does not apply in cases of murder or voluntary manslaughter. The relevant statutes require that the defendant either has to intend to kill the victim or know that his actions will likely result in the victim’s death, which is inconsistent with the proposition that you take your victim as you find him. That said, I cannot agree that any misconduct occurred in this case, because, at the time the prosecutor made his comments regarding the eggshell-skull doctrine, they were 100% consistent with Indiana Supreme Court precedent on the matter.
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The majority’s disposition also relies on the likelihood that the jury listened to the prosecutor’s explanation of the eggshell-skull doctrine and took that statement to heart while ignoring the trial court’s instructions.11 As mentioned, the trial court properly instructed the jury that it was required to at least find that Konkle had knowingly killed Steele in order to support a conviction of murder or voluntary manslaughter. “‘When the jury is properly instructed, we will presume they followed such instructions.’” Weisheit v. State, 26 N.E.3d 3, 20 (Ind. 2015) (quoting Duncanson v. State, 509 N.E.2d 182, 186 (Ind.1987)). There is nothing in the record to rebut the presumption that the jury followed the trial court’s proper instructions.
It is vaguely possible that the jury disbelieved all of the evidence that Konkle had knowingly killed Steele and, while also disregarding the trial court’s instructions, nonetheless convicted him on the basis of the eggshell-skull doctrine. Fundamental error, however, requires that a fair trial was rendered impossible, not that an unfair trial was a vague possibility. In my view, this case falls far short of the very high standard for fundamental error. See Nix, 158 N.E.3d at 801.
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Konkle only challenges the jury’s conclusion that the evidence sufficiently proves that he acted knowingly when he killed Steele.
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I have little hesitation concluding that the State produced sufficient evidence to sustain the jury’s finding that Konkle had knowingly killed Steele. Konkle first attacked Clark, and, when he realized that he had attacked the wrong person, became even angrier and went looking for Steele. Konkle confronted, threatened, and antagonized Steele until Steele lashed out and punched Konkle. After an exchange of blows, Konkle wrapped his arms around Steele’s neck and laid his body on top of Steele’s. While holding Steele down, Konkle told him, “go to sleep, b[****.]” Tr. Vol. II pp. 246. Konkle held Steele in that position until he was gurgling, gasping for air, and foaming at the mouth.
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From this evidence, a jury could have reasonably inferred that Konkle had intended to cause Steele to pass out or make him unconscious. “It is generally presumed that a person intends the natural, necessary, and probable consequences of his or her acts.” Book v. State, 880 N.E.2d 1240, 1252 (Ind. Ct. App. 2008), trans. denied. The natural and probable consequence of Konkle choking Steele into unconsciousness was that Steele would be deprived of oxygen, which deprivation, if sufficiently prolonged, leads to death. Moreover, Konkle asked several carnival employees to lie and say that Steele had fallen while taking a shower. See, e.g., Stone v. State, 555 N.E.2d 475, (Ind. 1990) (noting that attempts at concealing evidence may be considered by a jury as revealing consciousness of guilt). Finally, when paramedics and law enforcement arrived, Konkle attempted to flee. See Myers v. State, 27 N.E.3d 1069, 1077 (Ind. 2015) (noting that efforts to avoid arrest can be viewed as consciousness of guilt). The State produced evidence from which a jury could have reasonably concluded that Konkle knowingly killed Steele, which is sufficient evidence to sustain Konkle’s conviction of voluntary manslaughter.
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Because I would vote to affirm the judgment of the trial court, I respectfully dissent.