MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D), this                         Feb 04 2015, 9:33 am
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kurt A. Young                                             Gregory F. Zoeller
Nashville, Indiana                                        Attorney General of Indiana

                                                          Ellen H. Meilaender
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                             IN THE
    COURT OF APPEALS OF INDIANA

Glenn Beard,                                             February 4, 2015

Appellant-Defendant,                                     Court of Appeals Case No.
                                                         49A05-1312-CR-618
        v.                                               Appeal from the Marion Superior
                                                         Court; The Honorable Lisa Borges,
                                                         Judge;
State of Indiana,                                        49G04-1208-MR-54852
Appellee-Plaintiff.




May, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015     Page 1 of 9
[1]   Glenn Beard appeals his conviction of murder, a felony.1 He raises three issues,

      which we restate as whether the evidence was sufficient, whether Beard was

      prejudiced by the court’s final instructions to the jury, and whether the court

      erred by not admitting evidence. We affirm.


                                     Facts and Procedural History
[2]   The facts most favorable to the conviction are that Beard raised his nephew,

      J.W., as his own son. On August 4, 2012, Beard, fourteen-year-old J.W., and

      J.W.’s friend I.D. were approached by J.T. and his friends on Beard’s property.

      J.T. and his friends tried to rob J.W. and I.D. Beard told J.T. and his friends to

      leave his property.


[3]   The following day, J.T. returned and tried to rob Beard’s brother, Richard.

      Beard again told J.T. to leave. J.T. swung at Beard, and Beard punched J.T.

      Beard told Richard to leave, and Beard returned inside. J.T. chased Richard’s

      car while holding a piece of brick. Beard then went outside with a gun in his

      hand. Immediately thereafter, J.W. heard two shots fired. Beard came back

      inside and told J.W. he was leaving but J.W. could not come with him.


[4]   J.T.’s mother and friend also heard the shots and ran toward the alley. When

      the police arrived, J.T. was found near the alley with two gunshot wounds.

      Officer Aaron Sparks testified J.T. was responsive at first. Officer Sparks




      1
          Ind. Code § 35-42-1-1 (2012).


      Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 2 of 9
      overheard J.W. on the phone say his dad “just fucking killed this guy.” (Tr. at

      184.) J.T. died from his injuries.


[5]   Three days after the shooting, Beard turned himself in. Beard stated he had not

      come forward earlier because he was innocent and he did not want to die of his

      cancer while in prison awaiting the outcome of a trial. Beard gave a statement

      to the police, but it differed in many respects from other witnesses’ accounts.


[6]   The State charged Beard with murder and Class B felony possession of a

      firearm by a serious violent felon.2 A jury found Beard guilty of murder, and

      the trial court found him guilty of possession of a firearm by a serious violent

      felon. The court sentenced Beard to fifty-five years for murder to be served

      concurrent with ten years for possession of a firearm by a serious violent felon.


                                          Discussion and Decision
                                            1. Sufficiency of Evidence

[7]   Beard challenges only his conviction of murder.

                 When reviewing the sufficiency of the evidence to support a
                 conviction, appellate courts must consider only the probative evidence
                 and reasonable inferences supporting the verdict. It is the fact-finder’s
                 role, not that of appellate courts, to assess witness credibility and
                 weigh the evidence to determine whether it is sufficient to support a
                 conviction. To preserve this structure, when appellate courts are
                 confronted with conflicting evidence, they must consider it most




      2
          Ind. Code § 35-47-4-5 (2012).



      Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 3 of 9
               favorably to the trial court’s ruling. Appellate courts affirm the
               conviction unless no reasonable fact-finder could find the elements of
               the crime proven beyond a reasonable doubt. It is therefore not
               necessary that the evidence overcome every reasonable hypothesis of
               innocence. The evidence is sufficient if an inference may reasonably
               be drawn from it to support the verdict.
[8]    Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007) (quotations, citation, and

       footnote omitted) (emphasis in original).


[9]    Beard asserts there was insufficient evidence to support the jury’s verdict

       because all the evidence was circumstantial. “[A] conviction for murder may

       be sustained on circumstantial evidence alone. If a reasonable inference can be

       drawn from the circumstantial evidence, the verdict will not be disturbed.”

       Smoote v. State, 708 N.E.2d 1, 3-4 (Ind. 1999) (internal citations omitted).

       However, the court must proceed with care and protect “the liberty of many

       innocent persons [who] would be placed in jeopardy.” Martin v. State, 300

       N.E.2d 128, 131 (Ind. Ct. App. 1973).

               It is simply not enough that the defendant’s actions are “fishy.” It is
               not enough that the defendant was found at the scene of the burglary.
               It is not enough that the evidence suggests that the defendant more
               than likely committed the crime. The evidence must show that the
               defendant is guilty beyond a reasonable doubt.
[10]   Brink v. State, 837 N.E.2d 192, 196 (Ind. Ct. App. 2005), trans. denied.

               Triers of fact determine not only the facts presented to them and their
               credibility, but any reasonable inferences from facts established either
               by direct or circumstantial evidence. It is not necessary that the court
               find the circumstantial evidence excludes every reasonable hypothesis
               of innocence. It need only be demonstrated that inferences may
               reasonably be drawn which support the finding of guilt.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 4 of 9
[11]   Thompson v. State, 804 N.E.2d 1146, 1150 (Ind. 2004) (quoting Metzler v. State,

       540 N.E.2d 606, 610 (Ind. 1989)).


[12]   While mere presence does not prove guilt, presence in conjunction “with other

       circumstances tending to show participation, such as companionship with the

       one engaged in the crime, and the course of conduct of the defendant before,

       during, and after the offense, may raise a reasonable inference of guilt.” Brink,

       837 N.E. at 194. Additionally, while flight may not be proof of guilt, the

       “totality of the circumstances including the method of flight employed and how

       it relates to the crime” may be enough to raise a reasonable inference of guilt.

       Id. at 196.


[13]   Beard was present in the vicinity of the crime, he had motive to shoot J.T., he

       carried a gun outside, two shots were fired, and he fled from the scene.

       Although no one saw Beard shoot J.T. and police did not recover a gun, it was

       reasonable for the jury to infer Beard shot J.T. See, e.g., Smoote, 708 N.E.2d at

       3-4 (holding circumstantial evidence was sufficient to prove defendant shot

       victim). As such, there is sufficient evidence to permit Beard’s conviction.


                                               2. Final Instructions

[14]   Beard argues the trial court should have instructed the jury to require proof so

       conclusive and sure that it excluded every reasonable theory of innocence.

               The purpose of jury instructions is to inform the jury of the law
               applicable to the facts without misleading the jury and to enable it to
               comprehend the case clearly and arrive at a just, fair, and correct
               verdict. In reviewing a trial court’s decision to give a tendered jury

       Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 5 of 9
               instruction, we consider (1) whether the instruction correctly states the
               law, (2) is supported by the evidence in the record, and (3) is not
               covered in substance by other instructions. The trial court has
               discretion in instructing the jury, and we will reverse only when the
               instructions amount to an abuse of discretion. To constitute an abuse
               of discretion, the instructions given must be erroneous, and the
               instructions taken as a whole must misstate the law or otherwise
               mislead the jury. We will consider jury instructions as a whole and in
               reference to each other, not in isolation.
[15]   Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). “The preferred

       practice is to use the pattern jury instructions.” Gravens v. State, 836 N.E.2d

       490, 493 (Ind. Ct. App. 2005), trans. denied. A defendant is entitled to reversal

       only if he affirmatively demonstrates an instructional error “prejudiced his

       substantial rights.” Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct. App. 2002),

       trans. denied.


[16]   Beard wanted the jury to be instructed:

               Direct evidence means evidence that directly proves a fact, and that, if
               true, conclusively establishes that fact.
               Circumstantial evidence means evidence that proves a fact from which
               you may conclude the existence of (an) other fact(s).
               It is not necessary that facts be proved by direct evidence. Both direct
               evidence and circumstantial evidence are acceptable as a means of
               proof. A conviction may be based solely on circumstantial evidence.
               Where proof of guilt is by circumstantial evidence only, it must be so
               conclusive and point so convincingly to the guilt of the accused that
               the evidence excludes every reasonable hypothesis of innocence.
[17]   (Supp. App. at 1.) Beard contends this instruction points the jury towards a

       presumption of innocence.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 6 of 9
[18]   The court rejected Beard’s proposed instruction, choosing instead to read the

       following two pattern jury instructions:

               The parties in this case may prove a fact by one of two types of
               evidence--direct evidence or circumstantial evidence.
               Direct evidence is direct proof of a fact. Circumstantial evidence is
               indirect proof of a fact.
               For example, direct evidence that an animal ran in the snow might be
               the testimony of someone who actually saw the animal run in the
               snow. On the other hand, circumstantial evidence that an animal ran
               in the snow might be the testimony of someone who only saw the
               animal’s tracks in the snow.
               It is not necessary that any fact be proved by direct evidence. You
               may consider both direct evidence and circumstantial evidence as
               proof.
[19]   (App. at 143.)

               If the evidence in this case is susceptible of two constructions or
               interpretations, each of which appears to you to be reasonable, and
               one of which points to the guilt of the defendant, and the other to his
               innocence, it is your duty, under the law, to adopt that interpretation
               which will admit of the defendant’s innocence, and reject that which
               points to his guilt.
[20]   (Id. at 141.)


[21]   Jury instructions are to be taken as a whole and not piecemeal. Munford, 923

       N.E.2d at 14. The court’s two pattern jury instructions covered the language

       Beard wanted and therefore did not prejudice Beard. See id. at 16 (use of

       multiple instructions to make a particular point together with notification that

       all instructions are to be considered as a whole is acceptable). We therefore

       cannot reverse his conviction on this ground.


       Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 7 of 9
                                            3. Admission of Evidence

[22]   “Typically rulings on admitting or excluding evidence are reviewed for an

       abuse of discretion.” Hirsch v. State, 697 N.E.2d 37, 40 (Ind. 1998). However,

       when the exclusion of evidence had no likely impact on the jury’s decision, in

       light of all the other evidence in the case, any error is harmless. Allen v. State,

       787 N.E.2d 473, 479 (Ind. Ct. App. 2003), trans. denied.


[23]   On the night of the crime, before J.W. gave his official statement to police,

       Officer Sparks allegedly threatened J.W. with legal trouble if he did not help the

       police with the investigation. Beard wanted those statements by Officer Sparks

       admitted into evidence to impeach the validity of J.W.’s statement that Beard

       killed J.T. We need not review whether the court erred by excluding evidence

       that may have impeached J.W.’s statement at the City-County Building on the

       night of the crime as J.W. confirmed the validity of the damning portions of

       that statement while on the stand.


[24]   Moreover, the important part of J.W.’s testimony was not the evidence about

       J.W.’s allegedly coerced statement at the City-County Building on the night of

       the crime, but rather was what Officer Sparks overheard J.W. say on the phone

       at the scene of the crime. J.W. testified he told someone on the phone: “Dad

       just fucking killed a dude.” (Tr. at 132.) Officer Sparks stated he overheard

       J.W. state, on the phone, “his dad just fucking killed this guy.” (Id. at 184.)

       The accumulation of the other evidence presented at trial lead us to believe any

       error to excluding possible evidence to impeach the validity of J.W.’s statement

       would have had no likely impact on the jury’s decision, in light of all the other
       Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 8 of 9
       evidence in the case. See Allen, 787 N.E.2d at 479. Thus, Beard cannot prove

       prejudice from the exclusion of statements by Officer Sparks to J.W. on the

       night of the murder. See, e.g., Meadows v. State, 785 N.E.2d 1112, 1122 (Ind. Ct.

       App. 2003) (error harmless when independent evidence supports conviction),

       trans. denied.


                                                 Conclusion
[25]   There was sufficient evidence to permit the jury to infer guilt. Beard cannot

       demonstrate prejudice from the jury instructions or from the trial court’s

       exclusion of testimony about a statement by Officer Sparks. Accordingly, we

       affirm.


[26]   Affirmed.


       Vaidik, C.J., and Friedlander, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1312-CR-618 | February 4, 2015   Page 9 of 9
