Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                              FILED
any court except for the purpose of                              Aug 15 2012, 8:49 am
establishing the defense of res judicata,
collateral estoppel, or the law of the case.                            CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
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ATTORNEY FOR APPELLANT:                                    ATTORNEYS FOR APPELLEE:

THOMAS W. VANES                                            GREGORY F. ZOELLER
Office of the Public Defender                              Attorney General of Indiana
Crown Point, Indiana
                                                           IAN MCLEAN
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                               IN THE
                     COURT OF APPEALS OF INDIANA

LARRY BURNS,                                       )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )   No. 45A04-1111-CR-624
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                        APPEAL FROM THE LAKE SUPERIOR COURT
                            The Honorable Salvador Vasquez, Judge
                                Cause No. 45G01-8605-CR-93


                                         August 15, 2012

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

BAILEY, Judge
                                            Case Summary

          Larry Burns (“Burns”) appeals his conviction for Murder, a felony.1 He presents the

sole issue of whether the trial court abused its discretion by refusing to instruct the jury on

voluntary manslaughter. We affirm.

                                    Facts and Procedural History

          In March of 1986, Vickie Burns (“Vickie”) left her husband and went to live with her

mother, Linda Oliver (“Oliver”) in Gary, Indiana. On May 23, 1986, Oliver was lying in bed

when she heard Vickie cry out, “Mama, here comes Larry with some guns.” (Tr. 52.) Oliver

jumped up and retrieved her gun. Meanwhile, Burns gained entry to the residence by

shooting apart the door lock.

          As she entered her kitchen, Oliver saw Burns. They exchanged gunfire but Burns’

shotgun jammed. He then “propped up” the shotgun at the kitchen table to deal with the

problem and Oliver fled to get help. (Tr. 57.) When Oliver and her neighbors returned, they

found Vickie dead, having sustained multiple injuries including a shotgun blast to her head.

          Burns convinced a friend to take him to a bus station. He remained a fugitive until he

was apprehended in Long Beach, California in 2010, claiming to be Daniel Oaks. After

Burns’ identity was verified, he was returned to Indiana to face charges of murder and

attempted murder. On September 30, 2011, a jury convicted Burns as charged. He was

given consecutive sentences of forty years and thirty years, respectively. He now appeals.

                                       Discussion and Decision


1
    Ind. Code § 35-42-1-1. He does not challenge his conviction for Attempted Murder.

                                                     2
       Upon review of the trial court’s packet of standard instructions, Burns’ counsel

requested that the voluntary manslaughter instruction be given:

       [T]he State has filed the divorce petition, given their opening statement. I
       imagine they’re gonna be saying that the motive for the killing was the divorce
       petition filed the day before. I think that allows me to request a voluntary
       manslaughter instruction because of the divorce petition being a sudden heat
       type of thing.

(Tr. 730-31.) In refusing to so instruct the jury, the trial court observed that there was an

absence of evidence that Burns had been served with the divorce petition and concluded,

“there really is nothing here that would suggest that there is a serious evidentiary dispute.”

(Tr. 737-38.) Burns now argues that the jury, if properly instructed, could have found that he

committed voluntary manslaughter as opposed to murder. Accordingly, he claims that the

trial court abused its discretion by refusing to instruct the jury on voluntary manslaughter.

       Voluntary manslaughter is a lesser-included offense of murder, distinguishable from

murder by the presence of the mitigating factor of sudden heat. Ind. Code § 35-42-1-3; Watts

v. State, 885 N.E.2d 1228, 1232 (Ind. 2008). Sudden heat must be separately proved and,

therefore, if there is no serious evidentiary dispute over sudden heat, it is error for a trial

court to instruct a jury on voluntary manslaughter in addition to murder. Id. A serious

evidentiary dispute exists where the jury can conclude that the lesser offense was committed

and the greater offense was not. Chanley v. State, 583 N.E.2d 126, 130 (Ind. 1991).

       “Sudden heat” is characterized as “anger, rage, resentment, or terror sufficient to

obscure the reason of an ordinary person, preventing deliberation and premeditation,

excluding malice, and rendering a person incapable of cool reflection.” Dearman v. State,


                                              3
743 N.E.2d 757, 760 (Ind. 2001). Anger alone is not sufficient to support an instruction on

sudden heat. Wilson v. State, 697 N.E.2d 466, 475 (Ind. 1998). The provocation must be

“sufficient to obscure the reason of an ordinary man,” an objective as opposed to subjective

standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997) (refusing to find that a threat

to disclose molestation would “understandably” provoke “an ordinary twenty-year-old man”

to rage or terror). Also, voluntary manslaughter involves an “impetus to kill” which arises

and “suddenly overwhelms” the actor. Id. at 427.

       Here, the evidence does not suggest that Burns was rendered incapable of cool

reflection. Burns armed himself with multiple weapons and went to his mother-in-law’s

residence. He shot his way into the home and exchanged gunfire with Oliver until his

shotgun jammed. He then paused to deal with the problem while Oliver escaped. This gave

Burns “ample time … to collect his wits and realize the heinousness and depravity of his

actions.” Id.

       Nonetheless, Burns continued upstairs and fired multiple shots into his wife’s body.

According to expert witness Henry Hatch, at least three different weapons caused Vickie’s

wounds. Instead of seeking help or attempting to aid his wife, Burns fled the state and lived

as a fugitive for two decades.

       Moreover, even if we assume that Burns had learned that Vickie had filed for divorce

one day before the shooting, this is not provocation sufficient to obscure the reason of an

ordinary person. See e.g., Turben v. State, 726 N.E.2d 1245, 1248 (Ind. 2000) (victim’s

statement that she was obtaining a divorce from the defendant did not warrant a voluntary


                                              4
manslaughter instruction); Ford v. State, 704 N.E.2d 457, 460 (Ind. 1998) (observing that

there was substantial evidence that a husband was not acting in sudden heat when, three days

after discovering his wife’s affair, he took a pistol and shot her twice at close range).

                                         Conclusion

       The trial court did not abuse its discretion by finding no serious evidentiary dispute;

the voluntary manslaughter instruction was properly refused.

       Affirmed.

RILEY, J., and CRONE, J., concur.




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