MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Mar 12 2019, 9:21 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
Ernest P. Galos                                          Curtis T. Hill, Jr.
South Bend, Indiana                                      Attorney General of Indiana

                                                         Ellen H. Meilaender
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana


                                          IN THE
    COURT OF APPEALS OF INDIANA

Antoine A. Jefferson,                                    March 12, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-1836
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1710-MR-14



Barteau, Senior Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019                 Page 1 of 12
                                        Statement of the Case
                                                                                       1
[1]   Antoine Jefferson appeals his conviction of murder, a felony. We affirm.


                                                     Issue
[2]   Jefferson raises one issue, which we restate as: whether the trial court abused

      its discretion in rejecting Jefferson’s proposed jury instructions regarding alleged

      lesser included offenses.


                                  Facts and Procedural History
[3]   On October 21, 2017, Everett Harper, age sixty-five, was visiting his daughter,

      Shakisha Martin, at the motel room she shared with her then-boyfriend in

      South Bend, Indiana. All three drank alcohol. Harper drank too much and

      was talking loudly. Martin’s boyfriend asked Harper to leave, but he refused.


[4]   Martin’s cousins, Adrian Evans and thirty-year-old Antoine Jefferson, arrived

      at the motel room in the late morning or early afternoon. Evans wanted to talk

      with Martin’s boyfriend about fixing one of Evans’ vehicles. Martin gave

      Jefferson some beer and a cup of liquor.


[5]   Harper continued to drink alcohol and talk loudly as he sat on the air

      conditioning unit. He talked about “nonsense,” such as things that occurred

      when he lived in Detroit and when Martin was younger. Tr. Vol. 2, p. 58.




      1
          Ind. Code 35-42-1-1 (2017).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019       Page 2 of 12
      Jefferson, Martin, and Martin’s boyfriend wanted Harper to leave the motel

      room, but he refused, claiming he had helped to pay for the alcohol and wanted

      to keep drinking. Harper also argued with Jefferson as Jefferson tried to listen

      to a song. However, Harper did not threaten Jefferson. In addition, Martin,

      Evans, and Martin’s boyfriend were not scared of Harper. He did not have a

      handgun.


[6]   At one point, Jefferson asked Martin to accompany him to the parking lot.

      Jefferson retrieved a handgun from Evans’ vehicle and showed it to Martin.

      When they returned to the motel room, Jefferson brought the handgun with

      him and laid it on the bed. Martin was scared because she thought “something

      [was] going to happen.” Id. at 29.


[7]   Ten minutes later, as Harper kept talking, Jefferson brandished the handgun

      and told him, “don’t say one more thing to me.” Id. Harper kept talking.

      Jefferson shot Harper multiple times and fled from the room with Evans.

      Harper fell off the air conditioner and slumped over into a corner of the room.

      Evans and Jefferson left the motel in Evans’ vehicle while Martin called 911.


[8]   At around 2:40 p.m., Corporal Ronald Glon of the South Bend Police

      Department overheard a radio report of a shooting at a motel near his location.

      He drove to the motel, where he was directed to Martin’s room. Corporal Glon

      found Harper slumped over in the corner of the room. He also saw spent shell

      casings on the floor. Corporal Glon checked Harper for a pulse and did not

      find one. Medics entered the room and determined Harper was dead.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 3 of 12
[9]    An autopsy later revealed that Jefferson had shot Harper at least six times.

       Harper had sustained a total of eight gunshot wounds, meaning that at least one

       of the bullets had exited and then reentered his body in a different location.

       One of the bullets had pierced Harper’s heart, which resulted in “[i]mmediate

       incapacitation and death.” Tr. Vol. 3, p. 27. A toxicology screen showed that

       Harper’s blood alcohol content was three times the legal limit, at 0.264 percent.


[10]   Meanwhile, Evans dropped Jefferson off at a friend’s house. Jefferson asked his

       friend to give him a ride to another person’s house. Jefferson left a bundled-up

       white t-shirt in the friend’s vehicle. After the friend dropped off Jefferson and

       ran some additional errands, he looked in the t-shirt and found a handgun and

       some ammunition. He put the shirt and the handgun in a dresser in his home.

       Later that night, the police came to the friend’s home, and he showed them the

       handgun. Subsequent ballistics testing of the handgun and the shell casings that

       were found in the motel room revealed that the handgun had fired the rounds

       that killed Harper. In addition, testing of the white t-shirt revealed the presence

       of DNA that matched Jefferson’s DNA profile.


[11]   Jefferson’s friend had taken him to the home of Jefferson’s girlfriend. When

       Jefferson woke her up, he was carrying a hoodie but was not wearing a shirt.

       Jefferson told his girlfriend that he had shot someone and thought that he killed

       the person. She became upset and drove him to his cousin’s house. After she

       returned home, she discovered that Jefferson had left a bag at her home. She

       threw the bag into a dumpster. Later, the police came to her house, and she

       showed them the dumpster, from which they retrieved the bag. The bag

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 4 of 12
       contained Jefferson’s sneakers, the box for the handgun, and an ammunition

       clip for the handgun, among other items. Subsequent testing revealed

       Jefferson’s palm print was on the ammunition clip.


[12]   Later on the day of the shooting, Jefferson and his cousin called Jefferson’s

       father, Anthony Evans. Jefferson told Evans that he had shot Harper because

       there was an argument, and Jefferson “got irritated” because Harper “wouldn’t

       stop talking.” Id. at 74. Jefferson further said that Harper “was talking s**t and

       wouldn’t shut up,” even after Jefferson showed his handgun to Harper. Id. at

       76. Jefferson surrendered to the police the next day.


[13]   On October 23, 2017, the State charged Jefferson with murder. The State

       subsequently filed a firearm sentencing enhancement. The murder charge was

       tried to a jury. During a jury instructions conference, Jefferson tendered

       instructions on voluntary manslaughter and reckless homicide as lesser included

       offenses of murder. The trial court rejected those proposed instructions. The

       jury determined Jefferson was guilty of murder. Next, Jefferson waived his

       right to a jury trial on the firearm sentencing enhancement. The court

       determined the elements of the enhancement were proved beyond a reasonable

       doubt. The court imposed a sentence, and this appeal followed.


                                    Discussion and Decision
[14]   Jefferson argues the trial court erred in rejecting his proposed jury instructions

       two, three and six on voluntary manslaughter and reckless homicide as lesser

       included offenses of murder. The Indiana Supreme Court has set forth a three-

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 5 of 12
       part test for determining when a trial court should instruct the jury on a lesser

       included offense:


               Part one requires the trial court to determine whether the lesser
               offense is ‘inherently’ included in the offense charged by
               comparing the statute defining the crime charged with the statute
               defining the alleged lesser included offense. If necessary, part
               two of the Wright [v. State, 658 N.E.2d 563 (Ind. 1995)] test
               alternatively requires the trial court to determine whether the
               lesser offense is ‘factually’ included in the offense charged by
               comparing the charging instrument with the statute defining the
               alleged lesser included offense.


               Finally, if the court concludes that the lesser offense is either
               inherently or factually included in the offense charged, then part
               three requires the court to determine whether a serious
               evidentiary dispute exists as to which offense was committed by
               the defendant, given all the evidence presented by both parties. If
               a serious evidentiary dispute does exist, it is reversible error not
               to give the instruction on the inherently or factually included
               lesser offense.


       Evans v. State, 727 N.E.2d 1072, 1080-81 (Ind. 2000) (quotations and citations

       omitted).


[15]   The State does not dispute Jefferson’s assertion that the offenses of voluntary

       manslaughter and reckless homicide are inherently or factually included in the

       offense of murder. The State instead argues there is no serious evidentiary

       dispute as to whether Jefferson committed murder.


[16]   The trial court rejected Jefferson’s proposed instructions based on the evidence

       presented, concluding the circumstances of Harper’s shooting did not support

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 6 of 12
       instructions for either voluntary manslaughter or reckless homicide. Tr. Vol. 3,

       pp. 187-38. “[I]n deference to the trial court’s proximity to the evidence, we

       review a decision whether to instruct the jury on lesser included offenses for an

       abuse of discretion if the court makes a finding as to the existence or lack of a

       ‘serious evidentiary dispute.’” Erlewein v. State, 775 N.E.2d 712, 714 (Ind. Ct.

       App. 2002) (quoting McEwen v. State, 695 N.E.2d 79, 84 (Ind. 1998)), trans.

       denied. An abuse of discretion occurs if a trial court’s decision is clearly against

       the logic and effect of the facts and circumstances before the court. Johnson v.

       State, 959 N.E.2d 334, 340 (Ind. Ct. App. 2011), trans. denied.


                                    I. Voluntary Manslaughter
[17]   Voluntary manslaughter is a lesser included offense of murder, differing only in

       the presence of sudden heat, which is “a mitigating factor.” Watts v. State, 885

       N.E.2d 1228, 1231 (Ind. 2008). 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, 743 N.E.2d 757, 760 (Ind.

       2001). The crime of voluntary manslaughter thus “involves an ‘impetus to kill’

       which arises ‘suddenly.’” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct.

       App. 2010) (quoting Stevens v. State, 691 N.E.2d 412, 427 (Ind. 1997)), trans.

       denied.


[18]   It is well established that insulting or taunting words alone are not sufficient

       provocation to reduce murder to manslaughter. Jackson v. State, 709 N.E.2d


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 7 of 12
       326, 329 (Ind. 1999). In addition, evidence of mere anger does not support a

       jury instruction on voluntary manslaughter. Champlain v. State, 681 N.E.2d

       696, 702 (Ind. 1997). It is reversible error to give an instruction on voluntary

       manslaughter in the absence of evidence of a serious evidentiary dispute on

       sudden heat. Watts, 885 N.E.2d at 1232.


[19]   In the Watts case, Watts and two companions were approached by the victim,

       Atkins, who argued with them and appeared to be trying to provoke them.

       Atkins also quarreled with another nearby person. Watts shot Atkins in the

       back as Atkins walked away. The trial court instructed the jury on voluntary

       manslaughter over Watts’ objection, and the jury convicted him of that offense.

       On appeal, the Indiana Supreme Court reversed, determining there was “no

       possible evidence” of sudden heat. Id. at 1233. The Court deemed Atkins’

       insults and taunts to be insufficiently provocative.


[20]   In Jefferson’s case, there is no dispute that Harper was drunk, loud, and

       argumentative. He refused numerous requests by Jefferson and others to leave

       the motel room or to be quiet. Harper also argued with Jefferson when

       Jefferson attempted to listen to a song. Even so, the record fails to show that

       Harper threatened anyone or attempted to provoke a physical altercation. As

       was the case in Watts, Harper’s insults and argumentative statements were not

       sufficient provocation to establish evidence of sudden heat.


[21]   Further, the record reflects that Jefferson acted rationally instead of under the

       influence of sudden heat, and his impetus to kill did not arise suddenly. After


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 8 of 12
       Harper continued to talk loudly and argumentatively despite Jefferson’s and

       others’ repeated requests to leave or be quiet, Jefferson brought the handgun

       into the motel room and placed it on the bed ten minutes before the shooting.

       Jefferson later told his father that Harper had “irritated” him by continuing to

       talk, even after Jefferson displayed the handgun. Tr. Vol. 3, p. 74. After the

       shooting, Jefferson took steps to hide the murder weapon, the ammunition, and

       the clothes he had been wearing. See Suprenant, 925 N.E.2d at 1284 (no error in

       refusing to instruct jury on voluntary manslaughter; Suprenant and victim had

       argued for hours prior to fatal stabbing, indicating absence of a “sudden”

       impetus to kill).


[22]   Jefferson cites Brantley v. State, 91 N.E.3d 566 (Ind. 2018), cert. denied, 2019 WL

       113423 (2019), in support of his claim, but that case is distinguishable for two

       reasons. First, the Brantley case presented “the unusual and rare circumstance

       where a defendant is charged with voluntary manslaughter without also being

       charged with murder.” Id. at 568. As a result, the question of instructing the

       jury on a lesser included offense was not at issue. Second, the Indiana Supreme

       Court determined there was sufficient, “although scant,” evidence of sudden

       heat in Brantley’s case because he lived in a house where domestic violence was

       common and the victim angrily arose from his chair with a shiny object in his

       hand, possibly a knife, just before Brantley shot him. Id. at 572. By contrast, in

       Jefferson’s case there is no evidence that Harper threatened anyone with

       violence at any time in the motel room, and he made no moves, violent or

       otherwise, prior to Jefferson shooting him. The trial court did not abuse its


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 9 of 12
       discretion by refusing to give Jefferson’s proposed jury instructions on voluntary

       manslaughter.


                                        II. Reckless Homicide
[23]   When the State seeks to prove the crime of murder, it must demonstrate beyond

       a reasonable doubt that a defendant “knowingly or intentionally” killed another

       human being. Ind. Code § 35-42-1-1. By contrast, the crime of reckless

       homicide is defined as “recklessly” killing another human being. Ind. Code §

       35-42-1-5 (2014). As a result, the only distinguishing characteristic between

       murder and reckless homicide is the level of mental culpability required for each

       offense. Evans, 727 N.E.2d at 1082.


[24]   “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.” Ind. Code § 35-41-2-2(b).

       (1977). On the other hand, 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.” Ind. Code § 35-41-2-2(c).


[25]   In this case, Jefferson shot Harper six times as Harper sat on an air conditioner.

       Shooting a victim multiple times is evidence of an awareness of a high

       probability that the victim will be killed. See Johnson v. State, 986 N.E.2d 852,

       856 (Ind. Ct. App. 2013) (no evidentiary dispute to support reckless homicide

       instruction as lesser included offense of murder; Johnson shot the victim

       multiple times at close range, resulting in eleven gunshot wounds). There is no

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 10 of 12
       evidence that Jefferson demonstrated mere disregard for potential harm to

       Harper. For example, he did not brandish the firearm only to have it discharge

       accidentally, nor did he fire at random without specifically aiming at anyone.


[26]   Jefferson cites Webb v. State, 963 N.E.2d 1103 (Ind. 2012), in which the Indiana

       Supreme Court reversed Webb’s murder conviction, determining that the trial

       court erroneously rejected Webb’s proposed jury instruction on reckless

       homicide as a lesser included offense. In that case, it was unclear whether

       Webb knew the gun had a round in it when he shot his girlfriend. In addition,

       after the shooting Webb told a witness that the shooting was accidental. Based

       on that evidence, the Indiana Supreme Court determined there was a serious

       evidentiary dispute as to whether Webb acted knowingly or recklessly.


[27]   By contrast, Jefferson’s gun was under his control the whole time, and there

       was no dispute as to whether he knew it was loaded. Furthermore, Jefferson

       never claimed the shooting was an accident. Instead, he told his father he shot

       Harper because Harper irritated him. The Webb case is factually distinguishable

       from Jefferson’s case, and the trial court did not abuse its discretion by refusing

       to give Jefferson’s proposed jury instruction on reckless homicide. See Miller v.

       State, 720 N.E.2d 696, 703 (Ind. 1999) (no error in rejecting proposed jury

       instruction on reckless homicide as lesser included offense of murder; Miller

       shot at the victim, who was seated in a car, multiple times, demonstrating

       evidence of a knowing killing rather than a reckless killing).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 11 of 12
                                                Conclusion
[28]   For the reasons stated above, we affirm the judgment of the trial court.


[29]   Affirmed.


       Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1836 | March 12, 2019   Page 12 of 12
