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Banks v. State

Because there was no evidence of the defendant's allegedly reckless conduct other than that directly related to the death of the victim, the verdict form properly listed only involuntary manslaughter as a lesser-included offense of felony murder.

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Joshua Banks was indicted on charges of felony murder, possession of a firearm by a convicted felon, and possession of a firearm during the commission of a felony. A jury found him guilty of involuntary manslaughter1 as a lesser-included offense of felony murder,2 and guilty of the firearm possession charges.3 Banks appeals from the convictions and the denial of his motion for new trial, contending that the court erred by failing to include on the verdict form reckless conduct as a lesser-included offense of felony murder. We affirm.

Viewed in the light most favorable to the verdict,4 the evidence showed the following. On January 18, 2010, Banks was with several people in the parking lot of an apartment complex. Banks displayed a handgun and “played with it.”5 He then fired the gun in the air, said “that’s building 16,” and fired several shots into the building. One of the bullets entered a window of an apartment in that building, fatally striking thirteen-year-old T. S., who resided in the apartment.

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