                                                                                  FILED
                                                                             Aug 19 2019, 8:48 am

                                                                                  CLERK
                                                                              Indiana Supreme Court
                                                                                 Court of Appeals
                                                                                   and Tax Court




      ATTORNEYS FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Adam C. Squiller                                           Curtis T. Hill, Jr.
      John M. Haecker                                            Attorney General of Indiana
      Auburn, Indiana
                                                                 J.T. Whitehead
                                                                 Deputy Attorney General
                                                                 Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Edward Blackburn,                                          August 19, 2019
      Appellant-Defendant,                                       Court of Appeals Case No.
                                                                 18A-CR-2915
              v.                                                 Appeal from the Starke Circuit
                                                                 Court
      State of Indiana,                                          The Honorable Kim Hall, Judge
      Appellee-Plaintiff                                         Trial Court Cause No.
                                                                 75C01-1703-MR-2



      Altice, Judge.


                                                 Case Summary


[1]   Edward Blackburn appeals his murder conviction. He raises two issues on

      appeal:




      Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019                             Page 1 of 12
              I.       Whether the trial court erred in denying his motion to continue the

                       jury trial based on the absence of a witness; and


              II.      Whether the trial court abused its discretion in refusing to instruct

                       the jury on the alleged lesser included offense of involuntary

                       manslaughter.


[2]   We affirm.


                                       Facts and Procedural History


[3]   On March 3, 2017, Blackburn was driving his girlfriend of around two months,

      Augusta Hadden, home. Raymond Higdon and his fiancée Terri Fields were

      driving in the opposite direction to drop off their friend Cord Colgrove after

      spending the entire day together. Higdon was driving, with Colgrove in the

      passenger seat and Fields between them. As the vehicles passed each other,

      Colgrove spotted Hadden in the red truck Blackburn was driving. He told

      Higdon, “Hey, there’s Gus. Turn around.” Transcript Vol. 3 at 147. “Gus”

      referred to Hadden, Colgrove’s ex-girlfriend.


[4]   Hadden and Colgrove had dated on and off for five years, but Hadden had

      recently broken up with him. Since then, Colgrove had called and texted

      Hadden numerous times, threatening her new boyfriend and begging her to take




      Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019          Page 2 of 12
      him back. 1 Hadden responded infrequently, only to tell Colgrove to leave her

      alone. She tried unsuccessfully to block Colgrove’s number, and around

      February 9, she got a new phone instead.


[5]   Neither Higdon nor Fields recognized the red truck. Nor could they identify its

      occupants at the time. Nevertheless, Higdon stopped in the middle of the road,

      turned his truck around, and followed Blackburn’s truck, speeding up to keep

      up with it. Both cars went through a stop sign. A few minutes later, the red

      truck turned down a residential lane before stopping in a grassy area. Higdon

      pulled up on the red truck’s driver’s side.


[6]   In the passenger’s seat, Colgrove handed his cell phone and wallet to Higdon

      saying, “Just in case anything happens.” Transcript Vol. 4 at 10. Higdon said,

      “Man, don’t be a retard.” Id. Colgrove assured him that he was “just going to

      put this bitch on front street.” Id.


[7]   Fields and Higdon noted that the driver’s window of the red truck was partially

      rolled down. They could see two individuals, later identified as Blackburn and

      Hadden, inside. Colgrove opened his door and stepped outside the truck. He

      took a step or two forward, raised his hands, and said, without yelling, “What

      the fuck, Gus?” Transcript Vol. 3 at 162. In that amount of time, Blackburn,

      who was in the driver’s seat, rolled his window down the rest of the way and




      1
        On February 8, phone records indicate that Colgrove texted Hadden twenty-six times, telling her he loved
      and needed her more than anything and offering her hundreds of dollars to spend at the Casino if she would
      talk to him.

      Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019                            Page 3 of 12
       fired his gun. The bullet hit Colgrove in the mouth, fracturing several teeth and

       his second cervical vertebra and perforating his carotid artery. He died at the

       scene.


[8]    Colgrove and Blackburn had never met face to face. However, Blackburn

       believed Colgrove had vandalized his car one night while he was with Hadden.

       Blackburn also told one of Hadden’s friends, sometime in February, that

       Colgrove had snitched on him to the police and that when he saw Colgrove, he

       “had something for his ass.” Transcript Vol. 4 at 52. Blackburn simultaneously

       leaned back in his chair, pulled up his shirt to reveal the butt of a pistol, and

       smacked it.


[9]    Fields and Higdon called the police and an ambulance for Colgrove while

       Blackburn and Hadden backed away, hit some trees, and fled. They met up

       with some of Blackburn’s friends who helped him burn his truck. Blackburn

       and Hadden hid out in a hotel until police found them the next day.


[10]   Blackburn was charged with murder on March 6, 2017. In October 2017,

       Blackburn filed a motion to compel grant of immunity and/or for alternative

       relief citing the need to have Hadden testify without fear of being charged as an

       accomplice. 2 The trial court denied the motion, citing lack of authority to

       compel the State to give Hadden immunity. In March 2018, Blackburn filed a




       2
        Hadden was initially charged as an after-the-fact accomplice under the theory that she was the one to throw
       her phone out the window in an attempt to avoid being tracked by the police. This charge was later
       dismissed without prejudice due to a lack of evidence.

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       motion to continue the trial to August due to the recent acquisition of an expert

       witness that needed time to prepare. The court granted this motion. Then, one

       week before trial was to begin, Blackburn filed a motion to continue based on

       the absence of a witness, Hadden. Blackburn supplemented this motion twice

       and renewed it on the morning of the first day of his trial. The trial court

       denied the motion to continue. The case was tried by jury from August 13,

       2018 to August 21, 2018. After the close of evidence, Blackburn submitted

       proposed final jury instructions, including instructions on reckless homicide,

       involuntary manslaughter, and pointing a firearm at another person. The latter

       two instructions were denied.


[11]   The jury found Blackburn guilty of murder. Thereafter, in November 2018, the

       trial court sentenced him to sixty-five years in prison. Blackburn now appeals.

       Additional facts will be provided as necessary.


                                           Discussion and Decision


                                             I. Motion to Continue


[12]   Blackburn argues that the trial court improperly denied his motion to continue

       based on the absence of witness Hadden. Upon motion, a trial may be

       continued at the court’s discretion and shall be continued upon a showing of

       good cause established by affidavit. Ind. Trial Rule 53.5. When a defendant

       requests a continuance due to the absence of a material witness and the

       statutory criteria are met, the defendant is entitled to a continuance as a matter

       of right. Elmore v. State, 657 N.E.2d 1216, 1218 (Ind. 1995). Although absence

       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019       Page 5 of 12
       of a material witness is a statutory ground for a continuance, if the motion for

       continuance does not meet the statutory criteria, then the trial court may use its

       discretion to grant or deny the motion. Id. Decisions on motions made at the

       court’s discretion are given substantial deference. Id. There is always a strong

       presumption that the trial court properly exercised its discretion. Id. We will

       not disturb the trial court’s decision absent a clear demonstration of abuse of

       discretion resulting in prejudice. Vaughn v. State, 590 N.E.2d 134, 135-36 (Ind.

       1992).


[13]   Blackburn argues that he fulfilled the requirements outlined in Ind. Code § 35-

       36-7-1 governing motions to continue due to the absence of a material witness

       and thus was entitled a continuance as a matter of right. Like the trial court, we

       are not convinced. I.C. § 35-36-7-1(b)(2) requires the affiant indicate the

       probability of procuring the witness’s testimony within a reasonable time,

       which Blackburn failed to do. As the trial court noted, Blackburn admits in his

       affidavit, “I do not have any other resources for locating Ms. Hadden at this

       time.” Appellant’s Confidential Appendix Vol. 2 of 3 at 109. He can only guess that

       she may be in Mobile, Alabama, a general location he initially proposed during

       a pretrial hearing to discuss the defendant’s motion to compel immunity for

       Hadden from the State on October 19, 2017. This hearing took place nearly ten

       months before the trial, and Blackburn was unable to make any progress in

       finding Hadden in the intervening months, and admitted in his affidavit to not

       having any prospects to change this situation. As such, he failed to argue that




       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019      Page 6 of 12
       Hadden would ever be located, let alone that her testimony would be procured

       within a reasonable time.


[14]   Because Blackburn’s motion to continue did not satisfy the statutory

       requirements, we will review the court’s decision only for an abuse of

       discretion. “Whether the trial court properly exercised its authority includes a

       review of whether the competing interests of the parties were properly evaluated

       and compared, and if not, whether prejudice to the movant from maintaining

       the schedule of events occurred.” Vaughn, 590 N.E.2d at 136.


[15]   Blackburn was not prejudiced by the denial of the motion to continue. While

       Hadden did not testify, cell phone records of texts exchanged between her and

       Blackburn and between her and Colgrove were admitted to support Blackburn’s

       claim that Colgrove was harassing Hadden and threatening him. Blackburn

       also took the stand to testify as to his side of events including the assertion that

       he was acting in self-defense when he shot Colgrove. While Blackburn claims

       Hadden’s testimony would have supported his, there’s no real way to know that

       it would have. In any event, since Blackburn testified, the jury was presented

       with his version of events in considering whether to convict him. Between

       Blackburn’s testimony and the admission of the phone records, the claimed

       substance of Hadden’s testimony reached the jury. See Walker v. State, 471

       N.E.2d 1089, 1092 (Ind. 1984) (finding no abuse of discretion when the trial

       court denied defendant’s motion to continue due to the absence of an alibi

       witness that had not been located in six months of searching where the only

       leads would take days to resolve and the defendant testified as to his

       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019        Page 7 of 12
       whereabouts on the day in question so that the jury was not denied the

       opportunity to consider defendant’s explanation of the events); Laster v. State,

       956 N.E.2d 187, 193 (Ind. Ct. App. 2011) (finding that the trial court did not

       abuse its discretion in denying defendant’s motion to continue when weighing

       the unlikelihood of finding a witness whose location was unknown against the

       inconvenience and expense of rescheduling a trial).


[16]   We affirm the trial court’s denial of Blackburn’s motion to continue.


                                               II. Jury Instruction


[17]   Blackburn argues that the trial court abused its discretion in refusing to instruct

       the jury on Level 5 felony involuntary manslaughter. When determining

       whether to instruct a jury on a lesser included offense of the crime charged, the

       trial court must perform a three step analysis. First, the trial court must

       compare the statute defining the crime charged with the statute defining the

       alleged lesser included offense to determine if the latter is inherently included in

       the former. Wright v. State, 658 N.E.2d 563, 566 (Ind. 1995). Second, if the

       offense is not inherently included, the trial court must then determine if the

       alleged lesser included offense is factually included in the crime charged by

       comparing the statute defining the alleged lesser included offense to the

       charging instrument in the case. Id. at 567. An alleged lesser included offense

       is factually included if the means used to commit the crime charged include all

       of the elements of the alleged lesser included offense. Id.




       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019        Page 8 of 12
[18]   If the alleged lesser included offense is neither inherently nor factually included

       in the crime charged, the trial court should not give an instruction on the

       alleged lesser included offense. Id. If, however, the trial court has determined

       that an alleged lesser included offense is either inherently or factually included

       in the crime charged, it must look at the evidence presented in the case by both

       parties to determine if there is a serious evidentiary dispute about the element or

       elements distinguishing the greater from the lesser offense and if, in view of this

       dispute, a jury could conclude that the lesser offense was committed but not the

       greater. Id. If a jury could so conclude, then the trial court will be found to

       have committed reversible error by not giving an instruction, when requested,

       on the lesser offense. Id.


[19]   It is well established, as Blackburn concedes, that involuntary manslaughter is

       not an inherently lesser included offense of murder. Id. at 569; compare Ind.

       Code § 35-42-1-1 with I.C. § 35-42-1-4. He therefore argues that involuntary

       manslaughter is a factually included offense. Generally, cases involving

       involuntary manslaughter as factually included lesser offenses find their basis in

       battery, which we do not have here. E.g. Lynch v. State, 571 N.E.2d 537, 539

       (Ind. 1991) (holding that involuntary manslaughter was a factually lesser

       included offense of murder where the killing was obviously accomplished with

       a touching, i.e., defendant “battered” victim with a shooting). Blackburn,

       however, makes novel use of another part of the involuntary manslaughter

       statute, namely that “A person who kills another human being while

       committing or attempting to commit: (1) a Level 5 or Level 6 felony that


       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019       Page 9 of 12
       inherently poses a risk of serious bodily injury… commits involuntary

       manslaughter.” I.C. § 35-42-1-4(b). Blackburn directs us to Ind. Code § 35-46-

       4-3(b), which provides that knowingly or intentionally pointing a firearm at

       another person is a Level 6 felony. We will assume without deciding that

       pointing a firearm at another person inherently poses a risk of serious bodily

       injury. With this assumption in mind, involuntary manslaughter is a factually

       included lesser offense because the means used to commit the murder as

       charged clearly included pointing a firearm at Colgrove prior to shooting him. 3

       Thus, we must turn to whether there is a serious evidentiary dispute such that

       the jury could conclude that the lesser offense was committed but not the

       greater.


[20]   Involuntary manslaughter contemplates an incidental killing of another. See

       Lynch, 571 N.E.2d at 538 (noting “Involuntary manslaughter … contemplates

       an incidental killing that occurs during a battery”). Thus, for an involuntary

       manslaughter instruction to be warranted here, the pointing of a firearm would

       be knowing or intentional, but the pulling of the trigger would be incidental.

       Here we have the opposite. By claiming he shot in warning, Blackburn denied

       knowingly or intentionally pointing a firearm at Colgrove but admitted to

       intentionally pulling the trigger. In other words, Blackburn claims he

       intentionally fired a gun and incidentally the firearm was aimed at Colgrove’s




       3
        Blackburn’s charging information reads “Blackburn did knowingly or intentionally kill another human
       being, to-wit: Cord Colgrove, by shooting him in the head,” Appellant’s Confidential Appendix Vol. 2 at 3.

       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019                              Page 10 of 12
       head. If Blackburn’s testimony is taken as true, it would warrant a reckless

       homicide instruction, which was given, but still would not warrant an

       instruction of involuntary manslaughter.


[21]   There is no serious evidentiary dispute that Blackburn, by shooting Colgrove in

       the head at close range, only intended to point his firearm at him. There is no

       evidence to corroborate Blackburn’s testimony that he intended the shot as a

       warning—he did not verbally warn Colgrove to stay away or even give

       Colgrove time to register that Blackburn had a gun before pulling the trigger.

       By most accounts, Colgrove stepped out of the car, raised his hands, said

       “What the fuck, Gus?” and was shot in the head. Transcript Vol. 3 at 162. The

       instruction of involuntary manslaughter was not warranted.


[22]   Further, Blackburn’s statement to Hadden’s friend that he “had something for

       [Colgrove’s] ass” while patting his gun indicates a murderous intent. Transcript

       Vol. 4 at 52. Blackburn’s lack of verbal warning at the time of the incident for

       Colgrove to back off before Blackburn fired his gun belies Blackburn’s

       testimony that the shot was only meant to warn Colgrove off, not kill him. The

       jury had the opportunity to convict Blackburn for reckless homicide or acquit

       him on the basis of self-defense but still chose to convict him of murder, a

       knowing or intentional killing.


[23]   There being no evidentiary dispute, the trial court acted properly by refusing to

       instruct the jury on the offenses of involuntary manslaughter.


[24]   Judgment affirmed.

       Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019      Page 11 of 12
Kirsch, J. and Vaidik, C.J., concur.




Court of Appeals of Indiana | Opinion 18A-CR-2915 | August 19, 2019   Page 12 of 12
