MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                                 FILED
regarded as precedent or cited before any                                        Apr 30 2019, 10:56 am
court except for the purpose of establishing                                          CLERK
the defense of res judicata, collateral                                           Indiana Supreme Court
                                                                                     Court of Appeals
estoppel, or the law of the case.                                                      and Tax Court




ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bradley Keffer                                            Curtis T. Hill, Jr.
Scott L. Barnhart                                         Attorney General of Indiana
Brooke Smith                                              Samuel J. Dayton
Keffer Barnhart LLP                                       Deputy Attorney General
Indianapolis, Indiana                                     Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ryan Connors,                                             April 30, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2458
        v.                                                Appeal from the Vanderburgh
                                                          Superior Court
State of Indiana,                                         The Honorable Robert J. Pigman,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          82D03-1701-MR-183



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019                   Page 1 of 15
[1]   Ryan Connors appeals his convictions for murder and attempted murder. He

      raises two issues which we revise and restate as:


              I. Whether the trial court abused its discretion in admitting
              certain evidence; and

              II. Whether the court abused its discretion in not instructing the
              jury as to the offenses of voluntary manslaughter and reckless
              homicide.


      We affirm.


                                      Facts and Procedural History

[2]   It is undisputed that Connors had a substance abuse issue. In January 2017, his

      grandmother met Avery Shoe at a Walmart in Illinois while Shoe was soliciting

      money for his church in North Carolina. Shoe told her about a church program

      for those with drug issues and gave her a flier which indicated the program’s

      homes were free of charge and funded through donations. Connors’s

      grandmother spoke to Connors’s mother about the program, and she in turn

      spoke with him. According to Connors’s mother, he initially did not wish to

      enter the program and she pressured him to do so. She called and spoke with

      Shoe the following day, and then Connors spoke with Shoe. At some point it

      was decided that Connors would join Shoe and other men and travel with them

      to North Carolina. Connors’s mother drove him to his apartment so that he

      could pack and then to meet Shoe and his group, which included Henry Turner,




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 2 of 15
      a member of the church for fourteen years, Pernell Robinson, 1 and two other

      men. Shoe, Turner, and their group traveled as a team to different cities to raise

      money, asked for donations and distributed flyers at different locations, and

      used the money to support the ministry and recovery homes. The group

      typically would not travel for longer than two weeks at a time. Shoe was the

      men’s home director and was in charge of the team and the finances during the

      trip. According to Turner, the group deposited the donations it received into a

      bank account, Shoe usually held the money in a Bank of America bag until it

      could be deposited, and on occasion the money would be sent to the church as

      a money order.


[3]   Turner filled out an intake form for Connors dated January 5, 2017, and

      Connors signed the form. 2 The program’s rules provided that smoking and

      drugs were prohibited, participants would have no communication with family

      for the first thirty days except at church, and there would be an inspection of all

      property when entering the home. According to Turner, Connors’s bag was

      searched which was standard practice and Shoe would have confiscated any

      cell phone or medicine such as hydrocodone. Turner stayed with the group in a

      motel room that night.




      1
          Turner testified that Robinson had a disability, did not understand everything, and needed extra care.
      2
       The intake form indicated a name of Ryan K. Moore, included a social security number which had one
      digit which was different than Connors’s social security number, and indicated that he was not prescribed
      any medications by a doctor.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019                      Page 3 of 15
[4]   During the day on January 6, 2017, Shoe, Turner, Robinson, and Connors

      raised funds at a Walmart in Evansville, Indiana, and the other men raised

      funds at another location. At some point, Connors said that he needed to take

      pain pills, and Shoe told him that he could not have them unless he had a

      doctor’s order. According to Turner, Connors “probably got a little angry” but

      then, when riding in the van to a motel, it “[s]eemed like everything had died

      down, the argument that they had, it had died down.” Transcript Volume 2 at

      79-80. The group arrived at a Motel 6 in Evansville, and Shoe went inside to

      rent a room. He then went into the room, and Turner, Robinson, and Connors

      waited in the van for him to call Turner to let them know they could all come

      into the room. 3 Connors told Turner that he needed to use the restroom, and

      Turner told him that he needed to wait for Shoe’s call. Connors wanted to

      urinate outside, and Turner pointed out there were cameras. After several

      minutes, 4 Shoe called Turner and said that the men could enter the motel room.

      Connors “burst out the van” and went directly and quickly into the room. Id. at

      51. Turner got his luggage, helped Robinson with his luggage, and then walked

      toward the motel room.




      3
        When asked “[w]as it [Shoe’s] standard practice to hide the money when he went into the hotel room
      alone,” Turner testified “[w]ell he usually just, you know, put it away but sometime we had a safe in the
      room, sometime, but I don’t think we had a safe that time so usually he’d just either hide the money I guess,
      put it under his mattress or whatever.” Transcript Volume 2 at 90.
      4
        When asked “[h]ow long was [Shoe] in the hotel room by himself before you let [Connors] go in,” Turner
      replied “[c]ould have been five minutes, could have been longer.” Transcript Volume 2 at 90.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019                    Page 4 of 15
[5]   Turner walked into the room and observed that “there was blood everywhere,

      all on the walls,” saw that “the bed had been moved around like there was a

      scuffle,” and saw Shoe standing up. Id. at 51-52. Connors “slammed the door

      shut” and struck Turner in the back of the head with a sharp, shiny object

      which appeared to Turner to be a piece of metal. Id. at 52. Connors then

      stabbed Turner in the chest, Turner fell against the wall, and Connors kicked

      Turner in the face. Turner saw Shoe on the floor with his eyes open and

      believed he was dead. Turner yelled for Robinson, who was sitting on the bed,

      to obtain help, but he remained on the bed. Turner remained on the floor and

      pretended to be dead, and Connors grabbed Shoe’s backpack, grabbed

      Robinson and told him “come on,” and then ran out of the room. Id. at 53.

      Turner called 911 and was hospitalized and left with scars on his head, neck,

      and chin. Shoe died as a result of his injuries and sustained five sharp force

      trauma wounds, including one involving the deep musculature of the right

      shoulder and right upper chest, one in his chest which pierced his pericardium,

      and one to his lower abdomen and “his insides were on the ground.” Id. at 95.


[6]   Police determined Connors’s location at a Knights Inn in Lexington, Kentucky,

      by locating his cell phone. The police found him sitting in a chair in the motel’s

      lobby and discovered a black bag beneath his chair. The police took him into

      custody and transported him to a hospital due to a laceration on his hand. The

      bag found under the chair contained the Bank of America bag of money.


[7]   On January 10, 2017, the State charged Connors with Count I, murder; Count

      II, attempted murder as a level 1 felony; Count III, kidnapping as a level 2

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 5 of 15
      felony; Count IV, criminal confinement as a level 2 felony; and Count V,

      robbery of Turner resulting in serious bodily injury as a level 2 felony. The

      State later amended Count V to allege that Connors took property from Turner

      and/or Shoe as a level 2 felony. Connors filed a request for instructions on the

      offenses of voluntary manslaughter and reckless homicide. During the jury

      trial, over Connors’s objection, the court admitted testimony from Detective

      Phillip Luecke that the scene at the Motel 6 “was absolutely the most gruesome

      crime scene [he had] ever experienced.” Id. at 142. The court also admitted,

      over Connors’s objection, a copy of the charging information under Count V.

      The State dismissed Counts III and IV. The court noted that Connors had

      tendered instructions for voluntary manslaughter and reckless homicide, found

      there was no evidence of sudden heat or evidence of provocation, found no

      serious evidentiary dispute as to whether the killing was murder or reckless

      homicide, and declined to give the proposed instructions. The jury found

      Connor guilty of murder under Count I, attempted murder under Count II, and

      robbery resulting in serious bodily injury under Count V. The court vacated

      Count V and sentenced him to fifty-five years for murder under Count I and

      thirty years for attempted murder under Count II to be served consecutively.


                                                   Discussion

                                                         I.


[8]   The first issue is whether the trial court abused its discretion in admitting

      certain evidence. The admission and exclusion of evidence is a matter within

      the sound discretion of the trial court. Wilson v. State, 765 N.E.2d 1265, 1272
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 6 of 15
      (Ind. 2002). An abuse of discretion occurs where the trial court’s ruling is

      clearly against the logic, facts, and circumstances presented. Oatts v. State, 899

      N.E.2d 714, 719 (Ind. Ct. App. 2009). Errors in the admission of evidence are

      to be disregarded as harmless error unless they affect the substantial rights of the

      party. Lewis v. State, 34 N.E.3d 240, 248 (Ind. 2015). To determine whether an

      error in the introduction of evidence affected the party’s substantial rights, we

      assess the probable impact of that evidence upon the jury. Id.


[9]   Connors claims the court improperly admitted Detective Luecke’s testimony

      that the crime scene was the most gruesome he had experienced and the

      charging information under Count V. The State called Detective Luecke and

      questioned him about his employment and duties as a crime scene detective and

      his investigation of the scene at the Motel 6. He testified he had been employed

      by the Evansville Police Department for twenty years and had been a crime

      scene detective for a little over four years. He testified regarding blood patterns

      and the swabs he collected. When asked how many crime scenes he had

      processed in his career, Detective Lueke replied: “Hundreds . . . I did eight

      [murders] last year I believe. This year I’ve done three murders. I’ve done auto

      accidents, fatalities, but I mean we get called out two or three times a night for

      maybe something small, maybe something big so . . .” Transcript Volume 2 at

      142. When asked “in your experience how does the Motel 6 scene that you

      observed on January 6th of 2017 compare to other scenes you’ve seen,”

      Connors’s counsel objected based on relevance, the court overruled the




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 7 of 15
       objection, and Detective Lueke responded: “It was absolutely the most

       gruesome crime scene I’ve ever experienced.” Id.


[10]   Connors argues on appeal that the challenged testimony was not relevant and

       was prejudicial by seeking to inflame the jury. The State responds that the

       detective’s statement supports the argument that the wounds caused by

       Connors were severe and of the type that reflect an intent to kill or knowledge

       that death was highly probable and that the nature of the scene provided a sense

       of the magnitude of the victim’s injuries.


[11]   The State presented numerous photographs depicting the scene at the Motel 6

       and extensive testimony regarding the crime scene and the photographs. The

       jury heard testimony from Turner regarding his observations of the blood on the

       walls and Connors’s attack on him using a sharp object. The State presented

       evidence of the extensive injuries inflicted upon Shoe and Turner and the

       appearance of the scene of the attack. Based upon the record and in light of all

       of the evidence before the jury, we cannot say the challenged testimony was

       likely to have had a significant impact upon the jury or affected Connors’s

       substantial rights.


[12]   As for the charging information under Count V, the prosecutor stated “Your

       Honor, at this time the State would move to admit State’s Exhibit 30 into

       evidence which is a certified copy of part of the charging Information in this

       case, the Amended Count 5, primarily to prove the Defendant’s date of birth

       and social security number.” Transcript Volume 3 at 18. The prosecutor later


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 8 of 15
       argued, “with regard to the Defendant’s date of birth and social security

       number on the Defendant’s intake sheet that’s already been admitted into

       evidence, he indicated that his name was Ryan Moore instead of Ryan

       Connors,” “[h]e gave his correct date of birth and the social security number

       that he gave was mostly correct with the exception of one digit which was one

       digit off,” “I intend to use that to show intent,” and “[h]is identification card

       which has been admitted into evidence has his date of birth and name on it.

       However there’s been nothing else to be introduced that would have his social

       security number on it.” Id. at 19. Connors’s counsel objected and argued “I

       think that a certified piece of, you know, a Court document is certainly going to

       be very prejudicial to, to Ryan,” “it paints him as a criminal,” “[y]ou have a

       criminal document you’re submitting before a jury and then telling them to go

       deliberate on the ultimate issue,” “I would also note that Henry Turner’s

       testimony was that Henry Turner is the one that filled that out, not Mr.

       Connors so I don’t think it is then fair to insert this and try to suggest that it was

       Mr. Connors that filled that out and deliberately put in the wrong information

       especially if it was only off by, by one digit.” Id. at 19-20. The court admitted

       the information. In closing argument, the prosecutor referred to the

       information, noted it contained Connors’s name, birth date, and social security

       number, and argued “his social security number you’ll notice ends in 0954 and

       what did he put on the intake sheet? 0944.” Id. at 71.


[13]   Connors argues on appeal that the admission of the charging information was

       highly prejudicial as it asserted in a formal court document that he was a


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 9 of 15
       criminal. The State responds that the information did not provide any

       substantial information which the jury had not already heard, except for

       Connors’s correct identifying information, and there is little danger the

       information inflamed the passions of the jury.


[14]   The record reveals that the challenged exhibit contained the charging

       information alleging robbery under Count V and that the trial court did not

       enter judgment of conviction on Count V. The trial court read the substance of

       the allegations in Count V in its preliminary instructions to the jury, evidence

       was presented that Connors took the money in the Bank of America bag, and

       the prosecutor in opening and closing argument discussed the allegations of

       robbery. We cannot say, in light of the record as a whole, that the admission of

       the charging information was likely to have had a significant impact upon the

       jury or affected Connors’s substantial rights.


                                                         II.


[15]   The next issue is whether the trial court abused its discretion in not giving

       instructions on voluntary manslaughter and reckless homicide. Connors asserts

       there was evidence of sudden heat sufficient to allow the jury to find that he

       committed voluntary manslaughter. He argues that he was abruptly handed off

       to a religious group that he initially did not want to join and was required to

       travel with individuals who searched his belongings, to solicit funds, and to

       follow certain rules. He argues that a reasonable jury could infer that he was

       upset about being given away to Shoe who made him wait to enter the motel


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 10 of 15
       room and use the bathroom. He also argues that it can be inferred there was a

       scuffle and the only organ that was severely impacted was Shoe’s heart and

       asserts that, in light of the absence of evidence surrounding his interaction with

       Shoe, there is a serious dispute concerning his intent and whether he acted

       intentionally or recklessly.


[16]   The State maintains, with respect to the proposed voluntary manslaughter

       instruction, that while Connors cites to a series of aggravating experiences,

       none of them were sudden and all of them were followed by a period of cool

       reflection. It argues that he was dropped off and had his cell phone seized and

       his bags searched one to one and one-half days before he killed Shoe, and that,

       while he was initially angry about being denied hydrocodone, Connors calmed

       down after Shoe said that he would only be able to take it with a doctor’s

       orders. It contends there is no record of him experiencing the level of anger,

       rage, resentment, or terror that would cause an ordinary person to be incapable

       of deliberation, premeditation, or cool reflection. As for the proposed reckless

       homicide instruction, the State maintains that Connors attacked in such a way

       that demonstrated an intent to kill or knowledge that death was highly probable

       and that Shoe’s many significant wounds and Connors’s subsequent actions

       also show his intent.


[17]   We apply a three-step analysis in determining whether a defendant was entitled

       to an instruction on a lesser-included offense. See Wright v. State, 658 N.E.2d

       563, 566-567 (Ind. 1995). We must determine: whether the lesser-included

       offense is inherently included in the crime charged; if not, whether the lesser-

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 11 of 15
       included offense is factually included in the crime charged; and if either,

       whether there is a serious evidentiary dispute whereby the jury could conclude

       the lesser offense was committed but not the greater offense. Id. If a jury could

       conclude that the lesser offense was committed but not the greater, then it is

       reversible error for a trial court not to give an instruction, when requested, on

       the inherently or factually included lesser offense. Id. at 567. When the trial

       court makes a finding that a serious evidentiary dispute does not exist, we will

       review that finding for an abuse of discretion. Brown v. State, 703 N.E.2d 1010,

       1019 (Ind. 1998).


[18]   A person commits murder when the person knowingly or intentionally kills

       another human being. Ind. Code § 35-42-1-1. A person commits voluntary

       manslaughter when he knowingly or intentionally kills another human being

       “while acting under sudden heat.” Ind. Code § 35-42-1-3(a). The existence of

       sudden heat is a mitigating factor that reduces what otherwise would be murder

       to voluntary manslaughter. Ind. Code § 35-42-1-3(b). “Sudden heat occurs

       when a defendant is provoked by anger, rage, resentment, or terror, to a degree

       sufficient to obscure the reason of an ordinary person, prevent deliberation and

       premeditation, and render the defendant incapable of cool reflection.” Conner v.

       State, 829 N.E.2d 21, 24 (Ind. 2005). “[N]either mere words nor anger, without

       more, provide sufficient provocation.” Id. Also, sudden heat can be negated by

       a showing that a sufficient “cooling off period” elapsed between the

       provocation and the homicide. Morrison v. State, 588 N.E.2d 527, 531-532 (Ind.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 12 of 15
       Ct. App. 1992). Voluntary manslaughter is inherently included in murder.

       Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997), reh’g denied.


[19]   The evidence reveals that Connors joined Shoe, Turner, and the other men on

       January 5, 2017, at which time he signed an intake form, his bags were

       searched, and any cell phone or drug such as hydrocodone would have been

       confiscated. He spent the night with the group and was with them all day as

       they raised money on January 6, 2017. Shoe told him at one point that

       ordinarily he could not have pain pills unless he had a doctor’s order, and

       Connors “probably got a little angry,” but it “[s]eemed like everything had died

       down, the argument that they had, it had died down.” Transcript Volume 2 at

       79-80. Connors said that he needed to use the restroom, Turner told Connors

       that he needed to wait for Shoe’s call, and Turner testified that five or more

       minutes could have passed before he received Shoe’s call. To the extent the

       evidence shows that Connors was angry with Shoe or Turner, we note that

       anger without more does not provide sufficient provocation. See Conner, 829

       N.E.2d at 24. Moreover, Connors does not point to any actions of Shoe or

       Turner which could constitute provocation to a degree sufficient to render him

       incapable of reflection. Based upon the record, we conclude that there was no

       serious evidentiary dispute regarding whether Connors committed the offense

       causing the death of Shoe or committed the attempted offense against Turner

       while acting in sudden heat. The trial court did not abuse its discretion in

       declining to give Connors’s proposed instruction on voluntary manslaughter.

       See Collins v. State, 873 N.E.2d 149, 159-160 (Ind. Ct. App. 2007) (holding that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 13 of 15
       anger alone is not sufficient to support an instruction on sudden heat), trans.

       denied.


[20]   Reckless homicide is an inherently included lesser offense of murder, as the

       only element distinguishing the two is the requisite culpability. See Fisher v.

       State, 810 N.E.2d 674, 679 (Ind. 2004); Miller v. State, 720 N.E.2d 696, 702 (Ind.

       1999). 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,” whereas a person

       engages in conduct “‘recklessly’ if he 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.” See Ind. Code § 35-41-2-2.


[21]   The evidence establishes that Connors engaged in a vicious and prolonged

       attack upon Shoe and then upon Turner. Connors caused five sharp force

       trauma injuries to Shoe which included significant stab and incisional wounds.

       When Turner entered the room, Connors slammed the door shut and attacked,

       stabbed, and kicked him, ending the attack after Turner pretended to be dead.

       There is no evidence that Connors swung the sharp object at random. The

       court did not abuse its discretion in declining to give the proposed instruction

       on reckless homicide. See Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001)

       (holding there was no serious evidentiary dispute to support giving an

       instruction for reckless homicide where the defendant struck the victim in the

       head twice with a concrete block); Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 1999)

       (holding the trial court did not abuse its discretion by denying a requested

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 14 of 15
       reckless homicide instruction where the defendant struck the victim in the head

       several times with a baseball bat); Sanders v. State, 704 N.E.2d 119, 122 (Ind.

       1999) (holding “[t]here is no evidence that [the defendant] was shooting at the

       crowd on the stairs at random; rather, he shot only at” the victim and the

       defendant was not entitled to an instruction on reckless homicide); McDowell v.

       State, 102 N.E.3d 924, 933 (Ind. Ct. App. 2018) (noting that, in certain cases,

       “there was a relatively brief act that resulted in the victim’s death (shooting a

       gun that might have been loaded, playing around with a handgun, striking a

       small child with a paddle, squeezing a small child’s neck during play)” and that

       these actions could have been performed recklessly, but that “[i]n contrast, the

       evidence here shows that [the victim] was subject to an extensive beating, not a

       momentary action, such that there is no way that [the defendant] could have

       acted merely recklessly without also acting knowingly”), trans. denied. The trial

       court did not abuse its discretion in refusing Connors’s proposed instructions.


[22]   For the foregoing reasons, we affirm Connors’s convictions for murder and

       attempted murder.


[23]   Affirmed.


       May, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2458 | April 30, 2019   Page 15 of 15
