MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                   FILED
court except for the purpose of establishing                           Sep 26 2018, 9:09 am

the defense of res judicata, collateral                                     CLERK
estoppel, or the law of the case.                                       Indiana Supreme Court
                                                                           Court of Appeals
                                                                             and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Michael R. Fisher                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana
                                                         Justin F. Roebel
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Robert Curry,                                            September 26, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-940
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1606-MR-21318



Bradford, Judge.



Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018               Page 1 of 11
                                          Case Summary
[1]   Robert Curry was convicted of Level 2 felony voluntary manslaughter and

      Class A misdemeanor carrying a handgun without a license after he shot and

      killed Carl Rice, Jr. On appeal, Curry contends that the trial court abused its

      discretion in admitting certain evidence and that the evidence is insufficient to

      sustain his conviction. Concluding otherwise, we affirm.



                            Facts and Procedural History
[2]   As of May 23, 2016, Cyntoria Thornburg and Rice were involved in a romantic

      relationship and lived together. At some point that day, Cyntoria and Rice

      became involved in a domestic altercation. Cyntoria called her mother twice

      during the altercation, which lasted for more than an hour. During the second

      call, Cyntoria spoke to her brother, Michael Thornburg. After receiving

      Cyntoria’s calls, her mother called Thornburg and Cyntoria’s brother, Curry,

      and indicated that Cyntoria was being beaten and needed help. Soon

      thereafter, Curry, Mariah Echols, and Alexis Cole picked up Thornburg and the

      four made their way to Cyntoria and Rice’s apartment.


[3]   Upon arriving at the apartment, Curry and Thornburg looked through the

      window and observed that Rice had Cyntoria pinned against a wall. After Rice

      “backed off,” Cyntoria let Curry, Thornburg, Echols, and Cole into the

      apartment. Tr. Vol. II, p. 97. As they entered, Curry and Thornburg instructed

      Cyntoria to leave the apartment.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 2 of 11
[4]   Once inside the apartment, Echols observed Thornburg hitting Rice and heard

      Curry ask Rice “why he kept hittin on his sister.” Tr. Vol. II, p. 34. She

      observed Curry pull out a gun and point it at Rice. Echols also noticed that

      Cole “had her gun out too.” Tr. Vol. II, p. 36. Echols observed Cole “rack her

      slide” and saw a bullet fall from the gun. Tr. Vol. II, p. 37. Feeling scared,

      Echols turned to leave the apartment. As she did so, she heard a gunshot. She

      ran from the apartment and was soon thereafter followed by Thornburg, Cole,

      and Curry. After the four left the apartment with Cyntoria, Thornburg asked

      Curry why he shot Rice. Curry responded “that s[***] had to happen” and “I

      hope he’s dead.” Tr. Vol. II, pp. 233, 118.


[5]   On June 2, 2016, the State charged Curry with murder, Level 1 felony

      conspiracy to commit murder, and Level 5 felony carrying a handgun without a

      license. The conspiracy charge was dismissed prior to trial. The lesser-included

      offenses of Level 2 felony voluntary manslaughter and Level 5 felony reckless

      homicide were introduced to the jury as alternatives to the murder charge at

      trial.


[6]   Two letters were introduced into evidence over Curry’s objection during trial.

      The first letter was written by Curry while incarcerated prior to trial and sent to

      his girlfriend. In this letter, he instructed his girlfriend to have Thornburg write

      a second letter to the trial court using language included in the first letter.

      Thornburg subsequently sent the second letter to the trial court and largely used

      the language suggested by Curry.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 3 of 11
[7]   Following trial, the jury found Curry guilty of Level 2 felony voluntary

      manslaughter and Class A misdemeanor carrying a handgun without a license.

      After the State dropped the Level 5 felony enhancement of the handgun charge,

      the trial court sentenced Curry to an aggregate twenty-five-year sentence.



                                 Discussion and Decision
[8]   On appeal, Curry contends that the trial court abused its discretion in admitting

      certain evidence and that the evidence is insufficient to sustain his conviction

      for Level 2 felony voluntary manslaughter.


                                  I. Admission of Evidence
[9]           The admission or exclusion of evidence is entrusted to the
              discretion of the trial court. We will reverse a trial court’s
              decision only for an abuse of discretion. We will consider the
              conflicting evidence most favorable to the trial court’s ruling and
              any uncontested evidence favorable to the defendant. An abuse
              of discretion occurs when the trial court’s decision is clearly
              against the logic and effect of the facts and circumstances before
              the court or it misinterprets the law. In determining whether an
              error in the introduction of evidence affected an appellant’s
              substantial rights, we assess the probable impact of the evidence
              on the jury. Admission of evidence is harmless and is not
              grounds for reversal where the evidence is merely cumulative of
              other evidence admitted.


      Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations

      omitted). The trial court’s ruling will be upheld “if it is sustainable on any legal




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 4 of 11
       theory supported by the record, even if the trial court did not use that theory.”

       Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).


[10]   Curry asserts that the trial court abused its discretion by admitting two letters

       into evidence. Again, the first letter, which was written by Curry and sent to

       his girlfriend, instructed his girlfriend to have Thornburg write a letter to the

       trial court using language included in Curry’s letter. The second letter, which

       was written by Thornburg and sent to the trial court, included most of Curry’s

       suggested language. Curry argues that the trial court abused its discretion in

       admitting the two letters because they were not relevant and “admission of the

       letters served no purpose but to portray [him] as being manipulative and

       dishonest.” Appellant’s Br. p. 11. We disagree.


                          A. Whether the Letters were Relevant
[11]   “Any testimony tending to show an accused’s attempt to conceal implicating

       evidence or to manufacture exculpatory evidence may be considered by the trier

       of fact as relevant since revealing a consciousness of guilt.” Grimes v. State, 450

       N.E.2d 512, 521 (Ind. 1983). Stated differently, “[w]here a person is accused of

       crime, a guilty consciousness may be inferred from attempted evasion, palpable

       falsehood, equivocation, or from suppression of facts, and a presumption of

       guilt is said to arise from the falsification of testimony by [the] accused.”

       Matthew v. State, 263 Ind. 672, 677, 337 N.E.2d 821, 824 (1975).


[12]   The first letter reveals a guilty consciousness in that it reveals that Curry felt

       responsible for Cole’s incarceration in connection to Rice’s death. It also

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 5 of 11
       reveals that he blamed Thornburg for mentioning Cole in his initial statement

       to police. In the letter, Curry indicated that Thornburg needed “to say that

       [Cole] was not involved in any plans or conspiracies and that she was only

       there circumstantially. That will help us tremendously.” State’s Ex. 40. Curry

       further indicated that Thornburg should state that in giving his statements to

       police, he did not fully understand his rights, felt threatened and harassed by the

       detectives, and was afraid he would be arrested if he failed to tell the detectives

       what they wanted to hear. Curry also instructed Thornburg to state that neither

       Echols nor Cole ever entered the apartment and that he was not in the

       apartment at the time of the shooting. The second letter demonstrates that

       Thornburg largely used Curry’s suggested language in writing to the trial court.


[13]   Contrary to Curry’s suggested statements, however, Echols’s testimony

       established that both she and Cole entered the apartment. It also established

       that all four were in the apartment at the time of the shooting. Specifically,

       Echols testified that after she, Cole, Thornburg, and Curry entered the

       apartment, she observed Curry pull out a gun and point it at Rice. She further

       testified that she heard a gunshot as she turned to leave the apartment and was

       followed out of the apartment by Cole, Thornburg, and Curry. Echols’s

       testimony was consistent with Thornburg’s initial statement to police that both

       she and Cole entered the apartment and his testimony at trial that all four were

       in the apartment at the time of the shooting.


[14]   Given the differences between Curry’s suggested version of the facts and

       Echols’s and Thornburg’s accounts of what happened, one may reasonably

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 6 of 11
       infer that the letters amounted to an attempt by Curry to falsify or manufacture

       certain testimony. The letters were therefore relevant as they supported an

       inference of guilt. See Matthew, 263 Ind. 672, 677, 337 N.E.2d at 824. As such,

       we conclude that the trial court did not abuse its discretion in finding the letters

       to be relevant, admissible evidence at trial.


                   B. Whether the Letters had a Different Purpose
[15]   Curry also argues that the trial court abused its discretion in admitting the

       letters because one could reasonably conclude that there was a different, non-

       nefarious purpose for Curry writing the first letter and requesting that

       Thornburg write the second. Specifically, he claims that because he was acting

       under hybrid representation, i.e., having counsel while also making filings on

       his own behalf, the trial court should have recognized that his intent was

       nothing more than “to lock-down [Thornburg’s] testimony as to the truth of

       what happened during the incident” and “[t]his was nothing more than what a

       defense counsel would do on behalf of a client, and nothing more than a

       prosecutor would do in preparation for trial.” Appellant’s Br. p. 11. Even

       assuming Curry was trying to “lock down” the evidence, given the facts and

       circumstances before the trial court, we will not disturb the trial court’s different

       reasonable inference. See McElfresh v. State, 51 N.E.3d 103, 111 (Ind. 2016)

       (providing that although one could potentially infer varying intent from a letter

       written by the defendant, appellate courts will not disturb the trier-of-fact’s

       credibility determinations relating to intent).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 7 of 11
                               II. Sufficiency of the Evidence
[16]           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 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.


       Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and

       quotations omitted). “In essence, we assess only whether the verdict could be

       reached based on reasonable inferences that may be drawn from the evidence

       presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in

       original).


[17]   In order to prove that Curry committed voluntary manslaughter, the State was

       required to prove that he knowingly or intentionally killed another human

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

       existence of 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,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 8 of 11
       prevent deliberation and premeditation, and render the defendant incapable of

       cool reflection.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005).


        A. Whether the Evidence is Sufficient to Prove Curry Acted
                      Knowingly or Intentionally
[18]   Curry challenges the sufficiency of the evidence to prove that he acted

       knowingly or intentionally when he killed Rice. “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). “A person engages

       in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious

       objective to do so.” Ind. Code § 35-41-2-2(a).


[19]   Curry claims that the evidence establishes that he, at most, acted negligently as

       the “evidence most favorable to the verdict was that there was a struggle for the

       gun and the gun discharged killing Rice.” Appellant’s Br. p. 18. Review of the

       record, however, reveals otherwise. While both Curry and Thornburg indicated

       that the gun discharged during a struggle between Curry and Rice, Echols

       testified that she did not see Curry and Rice struggling over the gun. The jury,

       acting as the trier-of-fact, was free to credit Echols’s testimony over self-serving

       statements made and testimony given by Curry and Thornburg, respectively.

       See Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001) (“It is for the trier of fact to

       resolve conflicts in the evidence and to decide which witnesses to believe or

       disbelieve.”); In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999) (“[I]t is

       precisely within the domain of the trier of fact to sift through conflicting



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 9 of 11
       accounts of events. Not only must the fact-finder determine whom to believe,

       but also what portions of conflicting testimony to believe.”).


[20]   In addition, Curry made statements immediately following the shooting from

       which the jury could infer that he acted intentionally. The record reveals that

       after they left Rice’s residence, Thornburg asked Curry why he shot Rice.

       Curry responded “that s[***] had to happen” and “I hope he’s dead.” Tr. Vol.

       II, pp. 233, 118.


[21]   The evidence is sufficient to support the inference that Curry acted knowingly

       or intentionally when he shot Rice. Curry’s claim to the contrary effectively

       amounts to an invitation to reweigh the evidence, which we will not do. See

       Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (providing that upon review,

       appellate courts do not reweigh the evidence or assess the credibility of the

       witnesses).


         B. Whether the Evidence is Sufficient to Prove Curry Acted
                            with Sudden Heat
[22]   Curry also challenges the sufficiency of the evidence to prove that he acted with

       sudden heat. The trial court correctly instructed the jury that sudden heat “is a

       mitigating factor that reduces [what] otherwise would be murder to voluntary

       manslaughter.” Appellant’s App. Vol. III, p. 35. It further instructed the jury

       that sudden heat


               means a mental state which results from provocation sufficient to
               excite in the mind of the defendant such emotions as anger, rage,
               sudden resentment, jealousy, or terror sufficient to obscure the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 10 of 11
               reason of an ordinary person, and as such prevents deliberation
               and premeditation, excludes malice, and renders the defendant
               incapable of cool reflection prior to acting.


       Appellant’s App. Vol. III, p. 38.


[23]   The jury heard evidence indicating that Curry arrived at the apartment his sister

       shared with Rice armed with the knowledge that Rice was physically abusing

       his sister and had been doing so for over an hour. Curry also knew that Rice

       had previously physically abused his sister. In addition, Curry observed the

       abuse when he saw Rice physically restraining his sister by holding her against

       a wall. When Curry asked Rice why he “kept hittin on his sister,” Rice

       indicated that he “needed to teach her a lesson.” Tr. Vol. II, p. 34. We

       conclude that these facts are such that would enable the jury to reach the

       reasonable inference that in shooting Rice, Curry reacted with anger and rage

       sufficient to render him incapable of cool reflection. Given that we assess only

       whether the verdict could have been reached based on reasonable inferences that

       may be drawn from the evidence presented, we conclude that the evidence is

       sufficient to prove that Curry acted with sudden heat. Baker, 968 N.E.2d at 229.

       Curry’s claim to the contrary again effectively amounts to an invitation to

       reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.


[24]   The judgment of the trial court is affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018   Page 11 of 11
