MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                           Jun 28 2017, 5:42 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




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Mark F. James                                            Curtis T. Hill, Jr.
Anderson, Agostino & Keller P.C.                         Attorney General of Indiana
South Bend, Indiana
                                                         Tyler G. Banks
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Bruce Dewayne Thomas, III,                               June 28, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1608-CR-1908
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause Nos.
                                                         71D01-1602-MR-1
                                                         71D01-1110-FB-166



Brown, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017         Page 1 of 18
[1]   Bruce Dewayne Thomas, III, appeals his conviction for murder. Thomas raises

      three issues which we consolidate and restate as:


          I.        Whether the trial court abused its discretion in admitting into
                    evidence statements he made to a detective; and

          II.       Whether the court abused its discretion in not instructing the jury on
                    the offenses of voluntary manslaughter and involuntary
                    manslaughter.

      We affirm.


                                          Facts and Procedural History

[2]   Kayli Miller and her two children previously lived with Tyshawn Williams;1

      they stopped living with him two or three weeks prior to December 24, 2015,

      and moved into an apartment at the Miami Hills Apartments. Her brother, her

      brother’s girlfriend Martrina Reid, the daughter of Miller’s brother and Reid,

      Miller’s mother, and Clevee Chick, who was the boyfriend of Miller’s mother,

      were staying there as well. Miller did not tell Williams where she was staying,

      and he tried to communicate with her to find out where she was. On the

      evening of December 23, 2015, Miller received a text message from Williams

      stating that he was going to kill her. Also in December 2015, Thomas was in a

      relationship with Amanda Kleepsie, who had previously been in a relationship

      with Williams.




      1
       At trial, Miller testified that Williams thought that both of the children were his but that he is the father of
      only the younger child.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017                   Page 2 of 18
[3]   On the morning of December 24, 2015, Williams contacted Kleepsie and said

      he needed a ride to see his children, and she agreed to give him a ride. Kleepsie

      picked up Williams in her vehicle, drove to the Miami Hills Apartments, and

      parked in the parking lot. Williams stayed in the vehicle, and then Kleepsie

      pulled out of the lot and traveled north. As they were driving, they saw

      Thomas walking toward the Miami Hills Apartments, Kleepsie pulled over,

      Williams told Thomas that he might need his help, and Thomas entered the

      backseat of the vehicle. Kleepsie drove back to the Miami Hills Apartments

      and parked in the parking lot. Williams and Thomas stayed in the vehicle for

      approximately ten minutes. Williams and Thomas, both of whom carried guns

      under their hoodies, exited Kleepsie’s vehicle, entered an apartment building,

      and walked up the steps to the third-floor apartment where Miller was located.

      At the time, Miller and her two children, Reid, the daughter of Reid and

      Miller’s brother, Miller’s mother, and Chick were among those inside.


[4]   In response to a knock on the apartment door, Reid opened it to see Thomas

      and Williams both pointing guns at her, and she yelled “they’ve got guns.”

      Transcript Volume II at 117. Chick ran to the door, Reid or Chick closed or

      slammed the door, Chick placed his back against the door so that Williams and

      Thomas could not enter the apartment, and “[a]s soon as it slammed . . . [t]he

      gunshots was already coming.” Id. at 98. Chick was struck by two bullets, the

      first striking him in the back of the head and the second striking the back part of

      his shoulder, and he died as a result. The trajectories of four bullets which

      struck the apartment door show that the door was partially open when two


      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 3 of 18
      shots were fired through it from the hallway, and that the other two bullets were

      fired from the hallway through the door, which the crime scene investigator

      believed was shut at that point, and struck Chick. Kleepsie, who was in the car,

      heard three gunshots, a pause, and then three additional gunshots.


[5]   Thomas and Williams exited the apartment building and walked to and entered

      Kleepsie’s vehicle, and Kleepsie drove away from the apartment complex.

      Kleepsie noticed that Thomas was holding his hand and was bleeding and gave

      him one of her shirts to wrap his hand, and Thomas indicated that, although he

      did not know how, Williams had shot him. After dropping Williams off at a

      house, Kleepsie drove Thomas to his mother’s house and, after less than fifteen

      minutes, drove him to an area a couple of blocks away from the Miami Hills

      Apartments, where Thomas exited the vehicle and spoke with his brother for

      five to ten minutes. Kleepsie then drove Thomas to her house and later drove

      him to the hospital. Kleepsie and Thomas indicated to a police officer at the

      hospital that they were cleaning guns and that Thomas’s injury was an accident.


[6]   On January 25, 2016, Detective Timothy Wiley and his partner went to the St.

      Joseph County Jail, where Thomas was being held on unrelated charges, and

      asked for Thomas to be brought down to the booking area. Detective Wiley

      asked Thomas if he was willing to talk in the interview room, and Thomas

      responded affirmatively. Detective Wiley noticed Thomas had a bandage on

      his finger and asked him what had happened, and Thomas “said he got shot.”

      Transcript Volume III at 27. Detective Wiley asked Thomas “how it

      happened,” “where it happened,” and “where he sought medical treatment,”

      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 4 of 18
      and “[t]o all of those questions [Thomas] said he did not know.” Id. At that

      point, Thomas asked if he could leave the interview room and stated he did not

      want to talk anymore, Detective Wiley “said okay,” and Thomas stood up and

      walked out. Transcript Volume I at 33. Thomas was in the room with

      Detective Wiley for approximately three of four minutes. Detective Wiley later

      located and interviewed Kleepsie.


[7]   On February 5, 2016, the State charged Thomas with murder under cause

      number 71D01-1602-MR-1 (“Cause No. MR-1”). Thomas moved to suppress

      his statements to Detective Wiley at the St. Joseph County Jail and argued he

      was in custody at the time he made his statements. The trial court noted that

      the interview was very short, Thomas left as soon as he said he wanted to leave,

      and he was not in restraints and there was no guard outside the door. The court

      found that Thomas had not been in custody for Miranda purposes and the

      interview was not a custodial interrogation under Ind. Trial Rule 617, and

      denied the motion to suppress. Thomas submitted proposed jury instructions

      on sudden heat, voluntary manslaughter, and involuntary manslaughter, which

      the trial court rejected. The jury found Thomas guilty of murder and was

      sentenced to fifty-five years. After sentencing Thomas under Cause No. MR-1,

      the court noted that he had received a suspended sentence under cause number

      71D01-1110-FB-166 (“Cause No. 166”), took judicial notice of the verdict of

      the jury, found that Thomas violated his probation in that cause by committing

      a new criminal offense, and scheduled a sentencing hearing. At the subsequent

      sentencing hearing under Cause No. 166, the State argued that Thomas had


      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 5 of 18
      previously violated his probation in the case in 2012 and that there was not

      much of a worse way to fail on probation, and the court ordered that he serve

      his previously-suspended sentence of six years consecutive to his sentence for

      murder.


                                                  Discussion

                                                        I.


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

      evidence the statements Thomas made to Detective Wiley at the St. Joseph

      County Jail. The admission and exclusion of evidence is a matter within the

      sound discretion of the trial court, and we will review only for an abuse of

      discretion. Wilson v. State, 765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of

      discretion occurs when 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). Even if the trial court’s decision was an abuse of discretion, we will not

      reverse if the admission constituted harmless error. Fox v. State, 717 N.E.2d

      957, 966 (Ind. Ct. App. 1999), reh’g denied, trans. denied.


[9]   Thomas argues that, when Detective Wiley visited him in jail, no effort was

      made to read him his Miranda rights, the actions of the detective violated Ind.

      Evidence Rule 617, and the detective’s testimony regarding the interview at the

      jail should have been excluded. He asserts he did not invite the interview, he

      was removed from his cell, and he was in a place of detention.



      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 6 of 18
[10]   The State responds that Thomas was not in custody, noting Detective Wiley

       asked Thomas if he would speak with him in an interview room, Thomas was

       not in any restraints, the interview room door was closed but not locked, the

       encounter lasted three or four minutes, and Thomas was permitted to leave the

       interview room when he asked to do so. The State also argues that Thomas’s

       statement that he had been shot was cumulative of other evidence and thus that

       any error in admitting the statement was harmless.


[11]   The police are required to advise a suspect of his Miranda rights only if the

       suspect is subjected to custodial interrogation, and accordingly Miranda

       warnings do not need to be given when the person questioned has not been

       placed in custody. Hicks v. State, 5 N.E.3d 424, 428-429 (Ind. Ct. App. 2014)

       (citing Luna v. State, 788 N.E.2d 832, 833 (Ind. 2003) (citing Miranda v. Arizona,

       384 U.S. 436, 444, 86 S. Ct. 1602 (1966))). In determining whether a person

       was in custody or deprived of freedom such that Miranda warnings are required,

       our ultimate inquiry is whether there is a formal arrest or a restraint of the

       freedom of movement of the degree associated with a formal arrest. Id. We

       make this determination by examining whether a reasonable person in similar

       circumstances would believe he is not free to leave. Id. We examine all the

       circumstances surrounding an interrogation, and are concerned with objective

       circumstances, not with the subjective views of the interrogating officers or the

       suspect. Id.


[12]   Ind. Evidence Rule 617 provides in part that, “[i]n a felony criminal

       prosecution, evidence of a statement made by a person during a Custodial

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 7 of 18
       Interrogation in a Place of Detention shall not be admitted against the person

       unless an Electronic Recording of the statement was made, preserved, and is

       available at trial . . . .”


[13]   Imprisonment alone is not enough to create a custodial situation within the

       meaning of Miranda. Howes v. Fields, 565 U.S. 499, 511, 132 S. Ct. 1181, 1190

       (2012). Taking a prisoner aside for questioning does not necessarily convert a

       noncustodial situation to one in which Miranda applies. Id. at 512, 132 S. Ct. at

       1191. While taking a prisoner aside for questioning may necessitate some

       additional limitations on his freedom of movement, such procedures are an

       ordinary and familiar attribute of life behind bars, and escorts and special

       security precautions may be standard procedures regardless of the purpose for

       which an inmate is removed from his regular routine and taken to a special

       location. Id. at 513, 132 S. Ct. at 1192. When a prisoner is questioned, the

       determination of custody should focus on all of the features of the interrogation.

       Id. at 514, 132 S. Ct. at 1192. These include the language that is used in

       summoning the prisoner to the interview and the manner in which the

       interrogation is conducted. Id.


[14]   The record reveals that Thomas was not taken into custody for purposes of

       Miranda or Ind. Trial Rule 617. Detective Wiley and his partner asked that he

       be brought down to the booking area of the St. Joseph County Jail. Detective

       Wiley testified that the booking area was a very large room, there were two or

       three large intake rooms off to the side, and then “off to the back, out of sight,

       around a corner, is an interview room.” Transcript Volume I at 31. Detective

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 8 of 18
Wiley indicated that, when Thomas arrived, he was not in handcuffs or

shackles and was wearing “jail greens,” which based on his experience did not

indicate any sort of special level of detention, protection, or segregation. Id. at

32. He further testified that, once Thomas arrived, he asked him “if he was

willing to talk with us back in the interview room, and he said yes,” and they

walked around to the back interview room and sat down. Id. Detective Wiley

stated that, once in the interview room, he “looked down at [Thomas’s] finger

and . . . said, well, what happened there? Or something along those lines,” and

Thomas “said he got shot in the finger.” Id. at 33. When asked if he asked

Thomas anything else, Detective Wiley responded:


        I asked him where it took place. He said he didn’t remember. I
        asked him, I believe, what medical treatment or where he got
        medical treatment at. He said he didn’t know, and then he said if
        he could leave the interview room, he didn’t want to talk
        anymore. I said okay. Got up. He walked out. Free to go back
        to his cell.


Id. Detective Wiley indicated “that’s how it concluded.” Id. When asked “was

he free to leave,” Detective Wiley testified: “When he wanted to leave I got up,

got out of the way, and he went back. So, yes, he was free to leave.” Id. at 36.

Detective Wiley indicated he did not have authorization to tell Thomas he

could leave the custody of the jail but that “[h]e was certainly free to leave my

presence.” Id. at 37. Detective Wiley testified that the interview rooms are

“around the corner away from the prying eyes of the other inmates.” Id. at 43.

He also indicated that the door to the interview room was unlocked and he did


Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 9 of 18
       not need to knock on the door to have someone let him out. When asked how

       long Thomas was in the room with him, Detective Wiley replied,

       “[c]onservatively, three or four minutes.” Id. at 44.


[15]   Taking into account all of the circumstances of the questioning, including that

       Thomas agreed to speak with the officers and left the interview room

       approximately three or four minutes later as soon as he indicated he did not

       wish to speak with them any longer, we conclude that Thomas was not in

       custody within the meaning of Miranda or Ind. Trial Rule 617. See Howes, 565

       U.S. at 514-515, 132 S. Ct. at 1192-1193 (holding that the respondent was not

       taken into custody for purposes of Miranda and observing that, while the

       respondent did not invite the interview, was not advised that he was free to

       decline to speak with the deputies, and the interview lasted for hours, the

       respondent was told at the outset and reminded thereafter that he could leave,

       he was not physically restrained and was interviewed in an average-sized

       conference room, and although he had to wait twenty minutes to be escorted to

       his cell, he would have been subject to this restraint even if he had been taken to

       the conference room for some reason other than police questioning); Ind.

       Evidence Rule 617 (applicable to statements made by a person during a

       custodial interrogation). The trial court did not abuse its discretion in admitting

       Detective Wiley’s testimony regarding his interview with Thomas at the jail.


[16]   Moreover, any error in admitting Detective Wiley’s testimony regarding

       Thomas’s statement at the jail that he had been shot is harmless. Errors in the

       admission or exclusion of evidence are to be disregarded as harmless error

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 10 of 18
       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. The jury in this case heard testimony from

       Kleepsie that, after Thomas exited the apartment building following the

       shooting, she observed that Thomas was holding his hand and was bleeding,

       she gave him one of her shirts to wrap his hand, and Thomas indicated that

       Williams had shot him. The jury also heard evidence that Kleepsie later drove

       Thomas to the hospital. Thomas’s statement that he had been shot, following

       Detective Wiley’s question regarding what had happened to his finger, is

       cumulative of other testimony presented to the jury. See Johnson v. State, 699

       N.E.2d 746, 749 (Ind. Ct. App. 1998) (holding that the error in admitting a

       recording was harmless because the recording was cumulative of prior

       testimony).


                                                         II.


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

       Thomas’s proposed instructions on voluntary manslaughter and involuntary

       manslaughter to the jury. Thomas argues that Williams was upset and had sent

       a threatening text message, that the evidence suggests the shots were fired when

       Williams saw the mother of his children and was refused entry to the

       apartment, and the act of being shut out of the apartment caused Williams to

       become more upset to the point of acting with sudden heat. He argues that

       “[Williams], and therefore, Thomas, as an abettor could not have been thinking

       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 11 of 18
       clearly to shoot into a room where, [Williams’s] children were.” Appellant’s

       Brief at 9. With respect to his proposed instruction on involuntary

       manslaughter, Thomas argues, “[a]s stated above, the sudden heat is because

       the door was shut on [Williams] preventing him from seeing his children.” Id.


[18]   The State argues that no evidence was presented that Thomas was acting under

       sudden heat and therefore the trial court properly refused his proposed

       instruction on voluntary manslaughter. The State also argues that, in this case,

       involuntary manslaughter was not factually included in the charging

       information for murder, Thomas does not point to evidence that he intended

       only to commit a battery instead of a murder, and thus the trial court properly

       refused the proposed instruction on involuntary manslaughter.


[19]   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: (1) whether the lesser-included

       offense is inherently included in the crime charged; if not, (2) whether the

       lesser-included offense is factually included in the crime charged; and if either,

       (3) whether there is a serious evidentiary dispute whereby the jury could

       conclude the lesser offense was committed but not the greater offense. Id. If the

       “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



       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 12 of 18
       exist, we will review that finding for an abuse of discretion. Brown v. State, 703

       N.E.2d 1010, 1019 (Ind. 1998).


[20]   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 the person knowingly or intentionally kills another human

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

       Ct. App. 1992).


[21]   Voluntary manslaughter is inherently included in murder. Horan v. State, 682

       N.E.2d 502, 507 (Ind. 1997), reh’g denied. A trial court should grant a requested

       voluntary manslaughter instruction if the evidence demonstrates a serious

       evidentiary dispute regarding the presence of sudden heat. Powers v. State, 696

       N.E.2d 865, 868 (Ind. 1998).




       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 13 of 18
[22]   The evidence presented at trial reveals that, after Kleepsie and Williams exited

       the parking lot of the Miami Hills Apartments and traveled north, they saw

       Thomas walking toward the apartments, Kleepsie pulled over, Williams told

       Thomas that he might need his help, and Thomas entered the backseat of the

       vehicle. Kleepsie drove back to the Miami Hills Apartments and parked in the

       parking lot, and Williams and Thomas stayed in the vehicle for approximately

       ten minutes. Kleepsie testified that she could see that both Williams and

       Thomas had a gun. Also, Williams had sent a text message to Miller the

       previous evening stating that he was going to kill her. In discussing the

       proposed instructions, Thomas’s counsel argued there was no evidence of a

       discussion of a plan to kill anybody, that in a minute or two the plan went from

       one to obtain Williams’s visitation to an act of shooting, that Thomas was

       merely an accessory, and that Williams had been angry that Miller had been

       depriving him of visitation and living with another man. The State responded

       that there was not any evidence of sudden heat at all. The trial court agreed

       with the State and said that anger alone is not enough to justify sudden heat.

       To the extent Thomas or Williams was angry that Miller had deprived Williams

       of visitation or about their relationship, we note that anger without more does

       not provide sufficient provocation. See Conner, 829 N.E.2d at 24.


[23]   Based upon the record, we conclude that there was no serious evidentiary

       dispute regarding whether Thomas committed the offense causing the death of

       Chick while acting in sudden heat. Accordingly, the trial court did not abuse its

       discretion in declining to give Thomas’s proposed instruction on voluntary


       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 14 of 18
       manslaughter. See Bryan v. State, 450 N.E.2d 53, 63 (Ind. 1983) (“The threat by

       an ex-spouse to remove one’s children to another state is not sufficient

       provocation to reduce a homicide to manslaughter.”); Collins v. State, 873

       N.E.2d 149, 159-160 (Ind. Ct. App. 2007) (observing that, while the defendant

       pointed to evidence indicating he was angry before he shot the victim, it is well

       settled that anger alone is not sufficient to support an instruction on sudden

       heat and there was no evidence the defendant was angry at the time of the

       shooting and holding that, in the absence of appreciable evidence of sudden

       heat, the trial court properly refused to instruct the jury on voluntary

       manslaughter), trans. denied.


[24]   As for Thomas’s proposed instruction on involuntary manslaughter, Ind. Code

       § 35-42-1-4 provided at the time of the offense that “[a] person who kills another

       human being while committing or attempting to commit (1) a Level 5 or Level

       6 felony that inherently poses a risk of serious bodily injury; (2) a Class A

       misdemeanor that inherently poses a risk of serious bodily injury; or (3) battery;

       commits involuntary manslaughter, a Level 5 felony.” To the extent Thomas

       argues on appeal that “the sudden heat is because the door was shut on

       [Williams] preventing him from seeing his children,” Appellant’s Brief at 9, we

       note that sudden heat does not relate to involuntary manslaughter. Thomas

       does not present a cogent argument on appeal regarding his proposed

       instruction on involuntary manslaughter and has thus waived his argument. See

       Cooper v. State, 854 N.E.2d 831, 834 n.1 (Ind. 2006) (holding that the

       defendant’s contention was waived because it was “supported neither by cogent


       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 15 of 18
       argument nor citation to authority”); Shane v. State, 716 N.E.2d 391, 398 n.3

       (Ind. 1999) (holding that the defendant waived argument on appeal by failing to

       develop a cogent argument). We note that, waiver notwithstanding, Thomas’s

       counsel argued before the trial court, in discussing the proposed instructions,

       that Thomas and Williams were attempting to break into the apartment and

       that attempting to commit a home invasion when somebody is killed is

       involuntary manslaughter. The trial court noted it was difficult to discern the

       circumstances under which shooting through a closed door would support a

       verdict of battery and rejected Thomas’s proposed instruction on involuntary

       manslaughter.


[25]   The record reveals that both Thomas and Williams carried guns when they

       exited Kleepsie’s vehicle, entered the apartment building, and walked up the

       steps to the third-floor apartment where Miller was located. In response to the

       knock on the apartment door, Reid opened the door and observed Thomas and

       Williams both pointing guns at her. As soon as Reid or Chick closed or

       slammed the door, “[t]he gunshots was already coming.” Transcript Volume II

       at 98. Kleepsie heard three gunshots, a pause, and then three additional shots.

       Of the four shots fired from the hallway which penetrated the door, two struck

       Chick resulting in his death. There was no serious evidentiary dispute

       regarding whether Thomas intended to commit only battery or another offense

       referenced in Ind. Code § 35-42-1-4. Further, the charging information alleged

       that Thomas “did knowingly kill Clevee Chick.” Appellant’s Appendix

       Volume II at 3. Based on the record, even if Thomas had not waived the issue,


       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 16 of 18
       we cannot say that the trial court abused its discretion in declining to give his

       proposed instruction on involuntary manslaughter. See Collins v. State, 966

       N.E.2d 96, 104 (Ind. Ct. App. 2012) (finding that there was no serious

       evidentiary dispute that the defendant, by shooting the victim serval times,

       intended to commit only a battery; observing that when one shoots another

       person multiple times at close range, a reasonable jury could infer that the

       shooter’s intent was to kill, not batter, the victim; noting the charging

       information alleged the defendant knowingly or intentionally killed the victim;

       and holding that the trial court did not abuse its discretion by refusing to give

       the defendant’s tendered instruction on involuntary manslaughter).


[26]   In addition, we note that Thomas states that he “acknowledges that a court

       may revoke probation for mere commission of a criminal offense during his

       probationary period” and that, “[i]f this Court finds that [his] conviction should

       be reversed, then the Court must reverse the revocation of his probation.”

       Appellant’s Brief at 10. We do not reverse Thomas’s conviction for murder

       under Cause No. MR-1 and do not disturb the revocation of his probation

       under Cause No. 166.


                                                   Conclusion

[27]   For the foregoing reasons, we affirm Thomas’s conviction for murder and the

       revocation of his probation.


[28]   Affirmed.




       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 17 of 18
May, J., and Pyle, J., concur.




Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1908| June 28, 2017   Page 18 of 18
