MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                   FILED
regarded as precedent or cited before any                          Apr 02 2020, 10:41 am

court except for the purpose of establishing                            CLERK
the defense of res judicata, collateral                             Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Kristin A. Mulholland                                     Curtis T. Hill, Jr.
Appellate Public Defender                                 Attorney General of Indiana
Crown Point, Indiana
                                                          Samuel J. Dayton
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Ronald Earl Menzie,                                       April 2, 2020
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          19A-CR-2290
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Salvador Vasquez,
Appellee-Plaintiff                                        Judge
                                                          Trial Court Cause No.
                                                          45G01-1803-MR-2



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020               Page 1 of 7
[1]   Ronald Menzie appeals his convictions for Murder1 and Level 6 Felony

      Criminal Recklessness.2 He argues that the trial court erred by admitting

      autopsy photographs and by refusing to instruct the jury on the lesser-included

      offense of voluntary manslaughter. Finding no error, we affirm.


                                                     Facts
[2]   On March 10 and into the early morning hours of March 11, 2018, Bunita Boyd

      was hosting a party at her home in Gary. Menzie was the cousin of the father

      of Boyd’s children, and Boyd had known him for nearly two decades. Menzie

      and some friends came to Boyd’s party at some point during the night.


[3]   During the party, Boyd began to argue with her ex-boyfriend, Broderick

      Harbin. Boyd took Harbin’s alcoholic beverage away from him because he had

      a history of “get[ting] crazy” when he drank. Tr. Vol. V p. 231. Harbin hit

      Boyd’s arm, and the two began “tussl[ing].” Id. Boyd yelled at Harbin and told

      him to leave; instead, he sat down in a chair. Menzie was present in the room

      during this interaction.


[4]   Suddenly, Boyd heard a loud popping sound. Her hearing became “muffled,”

      and she looked down and saw that her hand was bleeding because it had been

      shot. Id. at 233. She looked at Menzie and saw him pointing a handgun at

      Harbin, and then she heard “some more pops.” Id. at 234. Boyd felt scared



      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-42-2-2.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020   Page 2 of 7
      and pushed Menzie towards the door. Boyd’s son heard Boyd say to Menzie,

      “I can’t believe you shot him.” Id. at Vol. VI p. 102. Menzie left the house,

      telling Boyd not to “say his name” as he walked out. Id. at Vol. V p. 236.

      Harbin was shot multiple times and died as a result of the injuries. Boyd

      required medical treatment for the gunshot wound in her hand.


[5]   On March 14, 2018, the State charged Menzie with murder, Level 5 felony

      battery resulting in serious bodily injury, and Level 5 felony battery by means of

      a deadly weapon. The State also filed a separate information alleging that each

      offense should be enhanced based on Menzie’s use of a firearm. Menzie

      represented himself during his jury trial that began on July 8, 2019. He

      requested a jury instruction on the lesser-included offense of voluntary

      manslaughter; the trial court denied the request. At the close of the trial, the

      jury found Menzie not guilty of battery causing serious bodily injury and guilty

      of murder and Level 6 felony criminal recklessness (a lesser-included offense of

      Level 5 felony battery by means of a deadly weapon). In the second phase of

      the trial, the jury found Menzie guilty of using a firearm during the commission

      of murder.


[6]   On August 30, 2019, the trial court sentenced Menzie to fifty-eight years for

      murder, enhanced by twelve years because of the use of a firearm enhancement,

      and two years for criminal recklessness. The sentences are to be served

      consecutively, resulting in an aggregate term of seventy-two years

      imprisonment. Menzie now appeals.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020   Page 3 of 7
                                    Discussion and Decision
                                   I. Admission of Evidence
[7]   First, Menzie contends that the trial court erroneously admitted photographs of

      Harbin’s autopsy into evidence.3 The decision to admit or exclude evidence is

      within the trial court’s sound discretion. Green v. State, 65 N.E.3d 620, 630

      (Ind. Ct. App. 2016). We will reverse only if the trial court’s decision is clearly

      against the logic and effect of the facts and circumstances before it or if it

      misinterprets the law. Id.


[8]   Indiana Evidence Rule 403 provides that the trial court “may exclude relevant

      evidence if its probative value is substantially outweighed by a danger of . . .

      unfair prejudice . . . .” It is hard to disagree with a contention that graphic

      autopsy photos are inflammatory and may be prejudicial. But what must be

      determined is whether the prejudice is unfair and substantially outweighs the

      probative value of the evidence. Our Supreme Court has noted that “[e]ven

      gory and revolting photographs may be admissible as long as they are relevant

      to some material issue or show scenes that a witness could describe orally.”

      Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998); see also Elliott v. State, 630

      N.E.2d 202, 204 (Ind. 1994) (holding that photographs of the victim’s heart that

      had been removed from the victim’s body during an autopsy were admissible




      3
        We acknowledge the State’s argument that Menzie did not make specific objections to the admission of
      these photographs. We choose to address the issue nonetheless.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020                  Page 4 of 7
      because a testifying doctor used the pictures “to demonstrate the path of the

      bullet and the cause of death” and noting that “[t]he fact that a photograph may

      depict gruesome details of a crime is not sufficient basis for excluding it”).


[9]   In this case, the photographs were introduced into evidence during the

      testimony of the pathologist who conducted the autopsy. The photographs

      generally helped the jury understand the pathologist’s testimony, especially the

      explanations about the trajectory of the bullets—and how that trajectory

      demonstrated that Menzie acted with the requisite mens rea for murder.

      Specifically, the fact that Menzie shot Harbin through the shoulder and towards

      Harbin’s vital organs supports the inference that Menzie acted intentionally or

      knowingly. Moreover, one of the photos—the only one specifically referenced

      by Menzie on appeal—also helped to explain why there were four entrance

      wounds even though the police only recovered three bullet casings. 4 Therefore,

      while the photographs may have been graphic and somewhat prejudicial, any

      prejudice was readily outweighed by the probative value of that evidence. As

      such, the trial court did not err by admitting the photographs into evidence. 5




      4
          The trajectory of one bullet indicated that it actually created two separate entrance wounds.
      5
       We also note that even if the photographs had been admitted, the error would have been harmless given the
      substantial independent evidence of Menzie’s guilt, particularly Boyd’s testimony that she saw Menzie shoot
      Harbin.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020                       Page 5 of 7
                                         II. Jury Instruction
[10]   Menzie also argues that the trial court erred by refusing to instruct the jury on

       voluntary manslaughter, which is a lesser-included offense of murder. See

       Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004) (finding that voluntary

       manslaughter is an inherently lesser-included offense of murder). Instruction of

       juries is within the trial court’s sole discretion. Driver v. State, 760 N.E.2d 611,

       612 (Ind. 2002). A jury must be instructed on a lesser-included offense only if,

       among other things, there is a “serious evidentiary dispute” about the

       element(s) distinguishing the greater from the lesser offense. Webb v. State, 963

       N.E.2d 1103, 1106 (Ind. 2012).


[11]   When a person knowingly or intentionally kills another human being while

       acting under sudden heat, the “existence of sudden heat is a mitigating factor

       that reduces what would otherwise be murder . . . to voluntary manslaughter.”

       Ind. Code § 35-42-1-3(b). “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.” Washington, 808 N.E.2d at 625-26. Where

       there is no evidence of sudden heat, the State “is not required to prove the

       absence of sudden heat beyond a reasonable doubt to obtain a murder

       conviction.” Massey v. State, 955 N.E.2d 247, 255 n.4 (Ind. Ct. App. 2011).


[12]   In this case, there is simply no evidence whatsoever that Menzie acted in

       sudden heat. The record reveals a moment of tension that occurred between


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020   Page 6 of 7
       Boyd and Harbin when she took his drink away, they tussled, he struck her arm

       and sat in a chair, refusing her demand to leave. Menzie was present during

       this interaction. But nothing indicates that the situation caused him to

       experience anger, rage, resentment, or terror, nor that it rendered him incapable

       of cool reflection. The fight between Harbin and Boyd had nothing to do with

       Menzie, and there is no evidence showing that Menzie would have been so

       emotionally invested in what was happening that he was blinded by those

       emotions.


[13]   Instead, Menzie suddenly—and, presumably, calmly, given that Boyd had no

       warning that he was about to act—shot Harbin multiple times. Menzie calmly

       told Boyd not to say his name and then left the house. Nothing in the record

       would support a reasonable inference that Menzie acted in sudden heat—in

       other words, there is no serious evidentiary dispute on the matter. Therefore,

       the trial court did not err by refusing to give a jury instruction on voluntary

       manslaughter.


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


       Bradford, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2290 | April 2, 2020   Page 7 of 7
