MEMORANDUM DECISION
                                                                    FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                Jul 20 2018, 6:39 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                           CLERK
                                                                Indiana Supreme Court
court except for the purpose of establishing                       Court of Appeals
                                                                     and Tax Court

the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Donald J. Berger                                         Curtis T. Hill, Jr.
Law Office of Donald J. Berger                           Attorney General of Indiana
South Bend, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Stephen Anthony Byrd,                                    July 20, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A05-1710-CR-2288
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1509-F1-12



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018    Page 1 of 10
                                        Statement of the Case
[1]   Stephen Anthony Byrd appeals his convictions for attempted murder, a Level 1

      felony, and burglary, as a Level 1 felony, following a jury trial. Byrd presents

      four issues for our review, which we consolidate and restate as the following

      three issues:


              1.       Whether the trial court abused its discretion when it
                       admitted into evidence video recordings police officers
                       found on his cell phone.

              2.       Whether the State presented sufficient evidence to support
                       his convictions.

              3.       Whether his convictions violate double jeopardy
                       principles.


[2]   We affirm.


                                  Facts and Procedural History
[3]   In early 2014, Byrd began dating Kenya Belcher, who lived in Mishawaka with

      her two children. In March, Byrd moved into Belcher’s home. There was no

      formal rental agreement between Byrd and Belcher, but he sometimes gave

      Belcher money.


[4]   On September 14, 2015, Belcher and Byrd “broke up” and she told him that she

      did not want him to live in her house anymore. Tr. Vol. III at 20. In the

      ensuing days, Byrd asked Belcher whether he could come back to her house,

      and she told him “no each time.” Id. at 23. Belcher then asked her stepmother,


      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018   Page 2 of 10
      Cheryl Ashe, to come and stay with her at Belcher’s house, and she did.

      Belcher and Ashe changed the locks to the doors on the house.


[5]   On September 17, Belcher arrived home with her children at about 7:00 p.m.,

      and she started preparing dinner when she smelled cigarette smoke coming

      from the basement. Belcher went downstairs to investigate, and when she

      reached the bottom of the stairs and went through a door to the basement,

      someone struck her in the head. She fell down, and Belcher saw Byrd standing

      over her. Byrd began stabbing her with a knife. Belcher yelled for help. After

      Byrd had stabbed her multiple times, Belcher was able to get up, and she ran up

      the stairs, where she found Ashe and her children near the top of the basement

      stairs. Belcher kept running and ran out of the house and into the street, and

      Byrd followed her outside, but he ran in the opposite direction. Belcher

      eventually made her way back to her house and waited for emergency medical

      technicians to arrive. After Belcher was transported to a local hospital, she

      underwent a diagnostic scan of her head, and she received stitches, staples, and

      glue to repair the multiple stab wounds.


[6]   A few days later, police officers apprehended Byrd after a foot chase. Byrd

      agreed to give a statement, and he signed a Miranda waiver form. Byrd

      explained that Belcher had attacked him, and he offered to show the

      interviewing police officer text messages to support his story. Accordingly, the

      officer gave Byrd an additional waiver authorizing “a complete search” of his

      phone, and Byrd signed the waiver. State’s Ex. 50. The officer then asked Byrd

      whether Byrd would let him give the phone to a forensics specialist to search

      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018   Page 3 of 10
      the phone for communications with Belcher, and Byrd agreed. Byrd gave the

      passcode to his locked phone to the officer. The forensics specialist found

      multiple text messages between Byrd and Belcher, and he also found several

      video recordings Byrd had made during the late afternoon of September 17,

      2015, depicting Byrd inside Belcher’s house saying things like: “She tried to

      outsmart me, she tried to lock me out of the house”; “I’m faced with a bad

      decision, it’s a decision that I have no choice but to make. . . [and] by the time

      you see this, I will be dead”; “If you play with somebody, if you play with their

      emotions, you can die.” State’s Ex. 64.


[7]   The State charged Byrd with attempted murder, a Level 1 felony, and two

      counts of burglary, one as a Level 1 felony and one as a Level 2 felony. Byrd

      filed a motion to suppress evidence, namely, the video recordings found on his

      cell phone. The trial court denied that motion following a hearing. A jury

      found Byrd guilty as charged. The trial court entered judgment of conviction

      only for attempted murder, a Level 1 felony, and burglary, as a Level 1 felony.

      And the court sentenced Byrd to an aggregate term of seventy years executed.

      This appeal ensued.




      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018   Page 4 of 10
                                      Discussion and Decision
                                    Issue One: Admission of Evidence

[8]   Byrd first contends that the trial court abused its discretion when it admitted

      into evidence the video recordings recovered from his cell phone.1 Byrd initially

      challenged the admission of this evidence through a motion to suppress but

      now appeals following a completed trial. Thus, the issue is appropriately

      framed as whether the trial court abused its discretion by admitting the evidence

      at trial. Lanham v. State, 937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010). A trial

      court is afforded broad discretion in ruling upon the admissibility of evidence,

      and we will reverse such a ruling only when the defendant has shown an abuse

      of discretion. Id. at 422. An abuse of discretion involves a decision that is

      clearly against the logic and effect of the facts and circumstances before the

      court. Id. We do not reweigh the evidence, and we consider conflicting

      evidence in the light most favorable to the trial court’s ruling. Id.


[9]   In essence, Byrd contends that his consent to search his cell phone was limited

      to text messages and did not include the video recordings. But Byrd ignores the

      plain language of the waiver he signed, which explicitly states that he consented

      to a “complete search” of his cell phone and contains no limitation of any kind.

      State’s Ex. 50. Byrd’s contention is entirely without merit. And, in any event,

      in light of the overwhelming evidence of Byrd’s guilt, including text messages




      1
       We note that Byrd does not set out the applicable standard of review, which is required by Indiana
      Appellate Rule 46(A)(8)(b).

      Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018           Page 5 of 10
       indicating that he was not allowed to go back to Belcher’s house and Belcher’s

       eyewitness testimony regarding the attack, any error in the admission of this

       evidence was harmless. Ind. Trial Rule 61; see Camm v. State, 908 N.E.2d 215,

       225 (Ind. 2009).


                                 Issue Two: Sufficiency of the Evidence

[10]   Byrd next contends that the State presented insufficient evidence to support his

       convictions. In reviewing the sufficiency of the evidence, we consider only the

       evidence and reasonable inferences most favorable to the conviction, neither

       reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59

       N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable

       fact-finder could find the defendant guilty. Id.


[11]   To prove attempted murder, a Level 1 felony, the State was required to show

       that Byrd knowingly or intentionally attempted to kill Belcher when he

       intentionally stabbed her with the intent to kill. Ind. Code §§ 35-42-1-1(1) and

       35-41-5-l(a) (2015). To prove burglary, as a Level 1 felony, the State was

       required to show that Byrd broke and entered Belcher’s home with the intent to

       commit murder which resulted in serious bodily injury to Belcher, namely,

       extreme pain. I.C. § 35-43-2-1.


[12]   Byrd first asserts that, without the improperly admitted video recordings, “the

       State’s evidence lacks sufficient evidence to prove the requisite intent for the

       charge of attempted murder.” Appellant’s Br. at 16. But Byrd does not support

       that contention with cogent argument. And, in any event, we have already held


       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018   Page 6 of 10
       that the trial court did not abuse its discretion when it admitted the video

       recordings into evidence at trial. Further, there is more than enough evidence

       other than the video recordings to support Byrd’s attempted murder conviction,

       most notably Belcher’s testimony.


[13]   Byrd also asserts that the State could not prove burglary because it did not show

       that Byrd did not reside with Belcher at the time of the attack. In support of

       that contention, Byrd does not cite to the record on appeal or any relevant case

       law or statutory law, and the issue is waived. App. R. 46(A)(8)(a). Waiver

       notwithstanding, the State presented ample evidence that Byrd did not reside

       with Belcher on September 17, 2015, and, instead, that he broke and entered

       her house. The evidence is sufficient to support both of Byrd’s convictions.


                                          Issue Three: Double Jeopardy

[14]   Finally, Byrd contends that his convictions violate double jeopardy principles.

       Byrd’s argument on this issue consists of three sentences and merely alleges that

       “a person may not be twice punished for a single offense arising from one set of

       operative circumstances,” citing Bevill v. State, 472 N.E.2d 1247 (Ind. 1985),2

       and Haggard v. State, 445 N.E.2d 969 (Ind. 1983). Appellant’s Br. at 18. Byrd




       2
         In Richardson v. State, 717 N.E.2d 32, 61 (Ind. 1999), Justice Boehm noted that, in its holding in Bevill, the
       Indiana Supreme Court was “incorrect in citing earlier authority” for the assertion that “multiple
       punishments in one proceeding violated Article 1, § 14” of the Indiana Constitution. (Boehm, J., concurring
       in result). And Justice Boehm noted that “[o]nly after Bevill was decided in 1985, do we find cases referring
       to double jeopardy and citing state and federal constitutions in dealing with multiple punishments. And in
       every instance . . . there is no suggestion that there is any difference between the two constitutions.” Id. at 63.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018                  Page 7 of 10
       suggests that, because both of his convictions include an element of serious

       bodily injury, they cannot both stand.3 We cannot agree.


[15]   In Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002), our Supreme Court addressed

       a defendant’s contention that “his convictions for attempted murder,

       aggravated battery[,] and burglary as a class A felony [violated double jeopardy

       principles because they arose] from the same factual evidence: [an] attack with

       a knife.” The Court explained that


                Article 1, section 14 provides that “[n]o person shall be put in
                jeopardy twice for the same offense.” Double jeopardy analysis
                involves the dual inquiries of the “statutory elements test” and
                the “actual evidence test,” as generally described in Richardson v.
                State, 717 N.E.2d 32 (Ind. 1999). . . .

                The actual evidence test prohibits multiple convictions if there is
                “a reasonable possibility that the evidentiary facts used by the
                fact-finder to establish the essential elements of one offense may
                also have been used to establish the essential elements of a
                second challenged offense.” Richardson, 717 N.E.2d at 53.

                                                           ***

                Based upon our review of the evidence, charging information[,]
                and jury instructions, the conviction for aggravated battery arose
                from the same evidence that gave rise to the conviction for
                attempted murder. Therefore, a reasonable possibility exists that
                the jury used the evidence proving the elements of attempted
                murder to also establish the elements of aggravated battery.



       3
         Byrd does not clarify whether he alleges a violation of double jeopardy principles under the federal or state
       constitutions, or both.

       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018               Page 8 of 10
               Because both convictions cannot stand under the Indiana Double
               Jeopardy Clause, we vacate the conviction for aggravated
               battery.


       Id. at 323-24.


[16]   Here, there is no apparent double jeopardy violation under the statutory

       elements test. As for the actual evidence test, the attempted murder charge

       alleged that Byrd stabbed Belcher multiple times, and the “serious bodily

       injury” element of the burglary charge was Belcher’s “extreme pain.”

       Appellant’s App. Vol. II at 3. In essence, Byrd contends that Belcher’s extreme

       pain was caused by the stabbing and the convictions violate double jeopardy

       principles because the same evidence was used to support both convictions. But

       the evidence shows that Belcher’s extreme pain did not occur during the

       stabbing, but came later. In particular, at trial, Belcher testified that she did not

       feel any pain during the stabbing or in the immediate aftermath. Tr. Vol. III at

       39. Rather, it was only after she was admitted to the hospital that she began to

       experience pain and requested pain medication. And nothing in the State’s

       argument at trial suggested that Belcher’s extreme pain was simultaneous with

       the stabbing. Moreover, Byrd ignores the fact that he hit Belcher in the head

       before he began to stab her, which caused Belcher pain independent of the

       stabbing. Therefore, there is no reasonable possibility that the jury used the

       evidence proving the elements of attempted murder to also establish the

       elements of burglary. See Davis, 770 N.E.2d at 324. We hold that Byrd’s

       convictions do not violate double jeopardy principles.


       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018   Page 9 of 10
[17]   Affirmed.


       Crone, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018   Page 10 of 10
