      MEMORANDUM DECISION

      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                                      FILED
      regarded as precedent or cited before any                              Jun 10 2019, 8:40 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




      ATTORNEYS FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
      Mark K. Leeman                                           Curtis T. Hill, Jr.
      Logansport, Indiana                                      Attorney General of Indiana
      Kevin E. Milner                                          Caroline G. Templeton
      Crown Point, Indiana                                     Lyubov Gore
                                                               Deputy Attorneys General
                                                               Indianapolis, Indiana


                                                 IN THE
          COURT OF APPEALS OF INDIANA
      Charles E. Bayne III,                                    June 10, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-1290
              v.                                               Appeal from the Lake Superior
                                                               Court
      State of Indiana,                                        The Honorable Salvador Vasquez,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               45G01-1707-MR-5



      Mathias, Judge.


[1]   Following a jury trial in Lake Superior Court, Charles E. Bayne III (“Bayne”)

      was convicted of Level 2 felony voluntary manslaughter. Bayne then admitted

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019                  Page 1 of 15
      to the sentencing enhancement of using a firearm during the offense. The trial

      court sentenced Bayne to fifteen years of incarceration on the voluntary

      manslaughter conviction and to five years in community corrections for the

      firearm enhancement. On appeal, Bayne presents two issues, which we restate

      as: (1) whether the State presented sufficient evidence to support his conviction

      for voluntary manslaughter and to rebut his claim of self-defense, and (2)

      whether the trial court erred as a matter of law in sentencing Bayne on the

      firearm enhancement.


[2]   We affirm.


                                 Facts and Procedural History
[3]   The victim in this case, Cody Klotz (“Cody”) had been in a relationship with

      Emily Kurczynski (“Emily”) for almost five years before their relationship

      ended in May 2017. Their relationship involved domestic violence. The

      following month, Emily began to date the defendant Bayne. Despite the

      breakup, or perhaps because of it, Cody sent Emily “mean-spirited” and

      “inappropriate” text messages. Tr. Vol. 2, p. 104. Emily therefore blocked

      Cody’s number so that he could no longer send her messages directly.


[4]   On July 13, 2017, Cody was hanging out with friends, including his new

      girlfriend, Nikki Karner (“Nikki”) and Tyler Kampe (“Tyler”), who used to be

      a friend of Bayne’s as well. Tyler looked at a story (a collection of pictures

      and/or videos) that Bayne had posted on the smartphone social media app

      Snapchat and saw one that included Emily. Cody asked Tyler to take a

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 2 of 15
      screenshot of that picture and send it to him.1 When another user takes a

      screenshot of the Snapchat app, the person who posted the photo or video

      receives a notice that that particular user has taken a screenshot of that photo or

      video.


[5]   The following day, Bayne received notice that Tyler had taken a screenshot of

      his Snapchat photo. He was upset and sent a message to Tyler asking him why

      he had done so. He also asked Tyler if he had taken the screenshot at Cody’s

      direction. The two exchanged messages for about one hour until Tyler stopped

      responding between 1:00 p.m. and 1:30 p.m.


[6]   Later that evening, Tyler met Cody at a local bar in Lowell, Indiana, where

      Cody’s girlfriend Nikki worked. Tyler showed Cody the messages he had

      exchanged with Bayne regarding the screenshot, and Cody laughed at Bayne’s

      reaction. The two drank beer and whiskey, and although Tyler claimed that

      they remained “relatively sober,” Tr. Vol. 2, p. 35, tests taken after Cody’s

      death revealed that his blood alcohol concentration was 0.142. Tr. Vol. 1, p.

      194.


[7]   At some point later in the night, Cody took Tyler’s phone and used it to send a

      provocative photo to Bayne via Snapchat. Specifically, the photo was of Emily,

      nude from the waist up. Cody had used the Snapchat app’s photo editor to




      1
        Items posted to Snapchat are not stored long-term, and the Snapchat app does not provide a direct way of
      saving photos or videos posted by someone else.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019                   Page 3 of 15
      cover Emily’s nipples with an emoji or avatar of a person “flipping off” the

      viewer with its middle finger. Tr. Vol. 2, p. 37. Bayne received this Snapchat

      photo at approximately 2:00 a.m. on the morning of July 15, 2017, while he

      and Emily were in bed. Bayne responded by sending a message calling Cody a

      “deadbeat dad,” and stating that Cody’s daughter could not look up to her

      father. Id. at 41, 221. This angered Cody, who told Bayne that he was coming

      over to his house to confront him. Bayne then told Emily that Cody was on his

      way over to “beat my ass” or “whoop my ass.” Id. at 125, 221. Cody and Tyler

      then drove over to Bayne’s house, an approximately five-minute trip.

[8]   In the meantime, Bayne got dressed, retrieved a handgun from his garage, and

      went outside and sat on the tailgate of a pickup truck to wait for Cody to arrive.

      Bayne claimed that he thought he did not have enough time to call 911, but he

      did not ask Emily to call 911 either. Emily sat next to Bayne on the tailgate

      awaiting the arrival of Cody and Tyler.


[9]   When Cody and Tyler arrived at Bayne’s house, Cody immediately got out of

      the car and began to walk toward Bayne. Bayne taunted Cody by stating,

      “what’s up, baby boy[?]” Tr. Vol. 2, p. 137. Cody responded that he was going

      to “whoop [Bayne’s] ass.” Id. Emily got up from the tailgate and tried to

      intervene. She told Cody to leave and punched him in the face. Cody pushed

      Emily out of his way and told Bayne, “you want to bring my kid into it, now

      it’s different,” and told Bayne that “we got to settle this.” Tr. Vol. 2, p. 46.

      Bayne warned Cody that he had a gun, and raised his handgun toward Cody,

      saying “I’m not going to fight you, but I will shoot you[.]” Tr. Vol. 3, p. 21.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 4 of 15
[10]   There was conflicting testimony as to what occurred next. Tyler testified that,

       as he tried to deal with Emily, he heard a gunshot. He testified that he saw no

       physical altercation between Bayne and Cody. Emily testified that she saw

       Cody grab Bayne’s legs before Bayne shot him. And Bayne testified that Cody

       grabbed his legs, and when he felt his legs slipping out from beneath him, he

       raised his weapon and fired a “random shot.” Tr. Vol. 2, p. 228.

[11]   After hearing the shot, Tyler saw that Cody was lying on the ground and went

       over to check on him. Cody told Tyler to call 911, and he did so. Cody died at

       the scene sometime shortly thereafter. After the shooting, Bayne and Emily

       went inside Bayne’s home, where Bayne also called 911. During this call,

       Bayne told the 911 operator that his girlfriend’s ex-boyfriend, Cody, had come

       to his home and started “pushing and hitting us.” Ex. Vol., State’s Ex. 54. Also

       during the call, when Emily stated, “you shot Cody,” Bayne responded, “he’s

       not going to f**king push you around or push me around.” Id. When

       emergency responders arrived at the scene, Bayne was cooperative and showed

       them where the gun he had used was located.


[12]   Autopsy results indicated that the bullet entered Cody’s upper left chest,

       traveling downward through his left lung, striking his fourth thoracic vertebra,

       and exiting from the right lower back. The case of Cody’s death was

       exsanguination. Forensic testing of Cody’s shirt indicated that the weapon was

       one to two feet away from Cody when the fatal shot was fired.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 5 of 15
[13]   On July 15, 2017, the State charged Bayne with murder. On November 2, 2017,

       the State amended the charging information to include an allegation of Level 2

       felony voluntary manslaughter. The amended charging information also alleged

       the sentence enhancement of use of a firearm. A four-day jury trial commenced

       on January 16, 2018, at which Bayne claimed self-defense. At the conclusion of

       the trial, the jury found Bayne not guilty of murder, but guilty of voluntary

       manslaughter. Bayne subsequently admitted to the firearm sentencing

       enhancement.


[14]   At the May 11, 2018 sentencing hearing, Bayne argued that the entirety of his

       sentence, including the sentence enhancement, could be suspended. Bayne

       requested that the trial court sentence him to a total of ten years, with one year

       of incarceration and nine suspended to probation. The State requested that the

       trial court sentence Bayne to twenty-two years on the voluntary manslaughter

       conviction, with seventeen and one-half years executed and the remainder

       suspended to probation, and a consecutive term of five years for the firearm

       enhancement.


[15]   The trial court expressed its belief that the firearm enhancement was not

       suspendible, but also stated, “I don’t think that it would be proper for me on a

       gun enhancement to suspend the sentence, to give probation.” Sentencing Tr. p.

       54–55. Ultimately, the trial court sentenced Bayne to fifteen years executed on

       the voluntary manslaughter conviction and to five years in community

       corrections on the firearm enhancement. Bayne now appeals.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 6 of 15
                                    Sufficiency of the Evidence

[16]   Bayne argues that the State presented insufficient evidence to support his

       conviction for voluntary manslaughter and to rebut his claim of self-defense.

       Our standard of review of claims of insufficient evidence is well settled:

               When reviewing a claim that the evidence is insufficient to
               support a conviction, we neither reweigh the evidence nor judge
               the credibility of the witnesses; instead, we respect the exclusive
               province of the trier of fact to weigh any conflicting evidence. We
               consider only the probative evidence supporting the verdict and
               any reasonable inferences which may be drawn from this
               evidence. We will affirm if the probative evidence and reasonable
               inferences drawn from the evidence could have allowed a
               reasonable trier of fact to find the defendant guilty beyond a
               reasonable doubt.


       Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing

       McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).


                                          I. Voluntary Manslaughter

[17]   Bayne first argues that his conviction for voluntary manslaughter cannot stand

       because there was insufficient evidence of sudden heat. This argument calls for

       us to once again discuss the difference between murder and voluntary

       manslaughter.


[18]   A person who knowingly or intentionally kills another human being commits

       murder. Ind. Code § 35-42-1-1(1). However, a person who knowingly or

       intentionally kills another human being while acting under “sudden heat”

       commits voluntary manslaughter. Ind. Code § 35-42-1-3(a). Since voluntary
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 7 of 15
       manslaughter is simply murder mitigated by evidence of sudden heat, it is an

       inherently included offense of murder. Watts v. State, 885 N.E.2d 1228, 1231

       (Ind. 2008); Wilkins v. State, 716 N.E.2d 955, 956–57 (Ind. 1999). “Sudden heat

       exists 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.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018), reh’g denied

       (quoting Isom v. State, 31 N.E.3d 469, 486 (Ind. 2015)). “Sudden heat excludes

       malice, and neither mere words nor anger, without more, provide sufficient

       provocation.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005). Evidence of

       sudden heat may be found in either the State’s case-in-chief or the defendant’s

       case. Brantley, 91 N.E.3d at 572 (citing Jackson v. State, 709 N.E.2d 326, 328

       (Ind. 1999)). The question of whether the evidence presented constitutes sudden

       heat sufficient to warrant a conviction for voluntary manslaughter instead of

       murder is for the jury to determine. Id.


[19]   Contrary to Bayne’s claims that there was no evidence of sudden heat, Bayne

       himself testified that he was “terrified” when Cody threatened to beat him up,

       as he knew Cody had a reputation for violence and often carried a firearm. Tr.

       Vol. 2, p. 223, 225, 235. Bayne also testified that he suffered from a serious

       kidney condition and had to avoid trauma to his kidneys; thus, he was

       “terrified” of fighting Cody. Id. at 228. There was also evidence indicating that

       Bayne was provoked by anger, rage, or resentment: Cody sent Bayne a nude

       picture of Bayne’s girlfriend, Emily, and threatened to come over and beat him

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 8 of 15
       up. Even after the shooting, Bayne seemed angry, stating on the 911 call that

       Cody was “not going to f**king push [Emily] around or push me around.” Ex.

       Vol., State’s Ex. 54. Thus, there was ample evidence that Bayne was acting out

       of fear, anger, resentment, or a combination thereof.

[20]   We find this case similar to Brantley, supra, where our supreme court disagreed

       with the contention that the State’s concession that the defendant acted under

       sudden heat nullified the defendant’s claim of self-defense. The court explained:


               [C]laims of self-defense and killing in sudden heat are not
               inherently inconsistent and, in appropriate circumstances, juries
               may be instructed on both. As with most cases, the jury here was
               faced with two stories: one where Brantley acted irrationally out
               of sudden heat, the other where Brantley acted rationally in self-
               defense. These explanations for Brantley's actions are not
               conflicting since the nature of each defense is different, and it was
               within the province of the jury to weigh the evidence and assess
               witness credibility in arriving at its verdict.

               Indeed, common to both defenses is terror. A defendant acts in
               self-defense when confronted with real danger of death or great
               bodily harm, or in such apparent danger as caused him, in good
               faith, to fear death or great bodily harm. The danger need not be
               actual, but the belief must be in good faith and the reaction
               must be reasonable. Similarly, sudden heat, which is sufficient to
               reduce murder to voluntary manslaughter, requires evidence of
               anger, rage, sudden resentment, or terror that is sufficient to
               obscure the reason of an ordinary man. Thus, terror sufficient to
               establish the fear of death or great bodily harm necessary for
               self-defense could be equally sufficient to invoke sudden heat.
               In other words, the same evidence can either mitigate murder or
               excuse it altogether. It’s the jury’s call. Here, faced with



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 9 of 15
               competing evidence, the jury rejected Brantley’s self-defense
               defense, a decision we affirm.


       Brantley, 91 N.E.3d at 573–74 (emphases added) (citations and internal

       quotation marks omitted).


[21]   The same is true in the present case. Common to both the State’s claim of

       voluntary manslaughter and Bayne’s claim of self-defense was Bayne’s claim of

       fear and terror. Bayne presented evidence supporting his claim that he was in

       fear of Cody and that he acted rationally out of self-defense. The State

       presented evidence that Bayne was afraid of Cody and acted irrationally in

       sudden heat. As in Brantley, it was the jury’s prerogative to decide whether

       Bayne acted rationally or irrationally under these circumstances. Unfortunately

       for Bayne, the jury decided that he acted irrationally. Although this is a close

       case, we are unable to say that no reasonable jury could conclude that Bayne

       acted out of sudden heat.


                                                 II. Self-Defense

[22]   The same reasoning dooms Bayne’s argument that there was insufficient

       evidence to negate his claim of self-defense. Our standard of review for a

       challenge to the sufficiency of evidence to rebut a claim of self-defense is the

       same as the standard for any sufficiency-of-the-evidence claim. Wilson v. State,

       770 N.E.2d 799, 801 (Ind. 2002). “When a claim of self-defense is raised and

       finds support in the evidence, the State has the burden of negating at least one

       of the necessary elements.” Id. at 800. “The State may meet this burden by


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 10 of 15
       rebutting the defense directly, by affirmatively showing the defendant did not

       act in self-defense, or by simply relying upon the sufficiency of its evidence in

       chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is

       convicted despite his claim of self-defense, we will reverse only if no reasonable

       person could say that self-defense was negated by the State beyond a reasonable

       doubt. Wilson, 770 N.E.2d at 800–01.


[23]   A valid claim of self-defense is legal justification for an otherwise criminal act.

       Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). Pursuant to Indiana Code §

       35-41-3-2(c), “[a] person is justified in using reasonable force against any other

       person to protect the person or a third person from what the person reasonably

       believes to be the imminent use of unlawful force.” However, a person is

       justified in using deadly force, and does not have a duty to retreat, “if the

       person reasonably believes that that force is necessary to prevent serious bodily

       injury to the person or a third person or the commission of a forcible felony.”

       Id. To prevail on a self-defense claim, the defendant must show that he: (1) was

       in a place where he had a right to be; (2) acted without fault; and (3) was in

       reasonable fear of death or great bodily harm. Henson v. State, 786 N.E.2d 274,

       277 (Ind. 2003).

[24]   Still, “the force used must be proportionate to the requirements of the

       situation.” Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014) (citing

       McKinney v. State, 873 N.E.2d 630, 643 (Ind. Ct. App. 2007), trans. denied), trans.

       denied. Thus, “a claim of self-defense will fail if the person ‘uses more force than



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 11 of 15
       is reasonably necessary under the circumstances.’” Id. (citing Sudberry v. State,

       982 N.E.2d 475, 481 (Ind. Ct. App. 2013)).

[25]   Here, the jury could reasonably conclude that, even though Bayne may have

       been “terrified” of Cody, he did not act in a reasonable manner and used more

       force than was necessary under the circumstances. When Cody threatened to

       come over and fight Bayne, Bayne did not stay inside his home and call 911. He

       instead armed himself, went outside, and waited for Cody to arrive. When

       Cody did arrive, Bayne taunted him and pointed a gun at him. And even

       though there was evidence that Cody did attempt to physically engage in a fight

       with Bayne by grabbing his legs, the jury could reasonable conclude that Bayne

       responded in a disproportionate manner by shooting Cody in the chest. There

       was no indication that Cody was armed in any way. And despite Bayne’s claim

       that he feared serious injury due to his kidney problem, the jury was under no

       obligation to credit this testimony.

[26]   Again, as in Brantley, it was for the jury, not this court on appeal, to determine

       whether Bayne acted rationally in self-defense or irrationally in sudden heat.

       The jury chose the latter, and we cannot say that no reasonable jury could come

       to this conclusion. Accordingly, we affirm Bayne’s conviction for voluntary

       manslaughter.


                                                 Sentencing
[27]   Bayne also argues that we should remand for resentencing on the firearm

       enhancement because the trial court was under the assumption that any

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 12 of 15
       sentence imposed on the enhancement could not be suspended. Bayne’s

       argument presumes that the trial court was mistaken, i.e., that the firearms

       enhancement could be suspended.2


[28]   Pursuant to Ind. Code section 35-50-2-11(d):


                The state may seek, on a page separate from the rest of a
                charging instrument, to have a person who allegedly committed
                an offense sentenced to an additional fixed term of imprisonment
                if the state can show beyond a reasonable doubt that the person
                knowingly or intentionally used a firearm in the commission of
                the offense.


       If the State so alleges, the question of whether the defendant did knowingly or

       intentionally use a firearm in the commission of the offense is put before the

       jury in a manner similar to that of a habitual offender enhancement. See id. at §

       11(f). If the jury finds that the State proved beyond a reasonable doubt that the

       defendant “knowingly or intentionally used a firearm in the commission of the

       offense under subsection (d), the court may sentence the person to an additional

       fixed term of imprisonment of between five (5) years and twenty (20) years.” Id.

       at § 11(g).

[29]   In contrast to the habitual offender statute, however, the firearm enhancement

       statute does not state that a sentence imposed thereunder may not be




       2
         Contrary to Bayne’s argument on appeal, his trial counsel did not state that the firearm enhancement was
       non-suspendible. In fact, his trial counsel specifically argued to the trial court at the sentencing hearing that
       the firearm enhancement was suspendible. Sentencing Tr. p. 34–35.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019                        Page 13 of 15
       suspended. Compare Ind. Code § 35-50-2-8(i) (“An additional term imposed

       under [the habitual offender statute] is nonsuspendible.”) with I.C. § 35-50-2-11

       (containing no similar provision). It therefore appears that Bayne is correct that

       a firearm enhancement may be suspended. To the extent that the trial court

       believed otherwise, it was mistaken.


[30]   However, we do not believe that remand for resentencing is necessary. As noted

       by the State, even though the trial court indicated its belief that a firearm

       enhancement could not be suspended, it also stated that it did not believe that a

       suspended sentence was appropriate in the present case. Specifically, the trial

       court stated, “So to the extent that the argument is made that I should give Mr.

       Bayne a suspended probation term for that five-year term, I do not believe that’s

       appropriate.” Sentencing Tr. p. 55. We therefore agree with the State that there

       is no need to remand for resentencing on the firearm enhancement because we

       are confident that the trial court would have imposed the same sentence even if

       it believed that the enhancement was suspendible. See Grimes v. State, 84 N.E.3d

       635, 644 (Ind. Ct. App. 2017) (noting that, even if the trial court abuses its

       discretion by considering an improper aggravator, we will not remand for

       resentencing if we are confident that the trial court would have impose the same

       sentence regardless of the error), trans. denied.


                                                 Conclusion
[31]   The State presented evidence sufficient to support Bayne’s conviction for

       voluntary manslaughter and to negate his claim of self-defense. There was


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 14 of 15
       evidence that Bayne was angry, terrified, and resentful of the victim, and the

       decision as to whether Bayne acted rationally in self-defense or irrationally in

       sudden heat was a question for the jury that we will not disturb on appeal. With

       regard to Bayne’s sentence, even if the trial court erroneously believed that the

       firearm enhancement was non-suspendible, we need not remand for

       resentencing, as the trial court indicated that it would have imposed the same

       sentence even if it believed that the enhancement was suspendible. We therefore

       affirm the judgement of the trial court.


[32]   Affirmed.


       Vaidik, C.J., and Crone, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-1290 | June 10, 2019   Page 15 of 15
