MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any
                                                                     Jun 30 2017, 9:14 am
court except for the purpose of establishing
the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Andrew J. Borland                                        Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         Larry D. Allen
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Tyron Johnson,                                           June 30, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1608-CR-1896
        v.                                               Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,                                        The Honorable Elizabeth C.
Appellee-Plaintiff.                                      Hurley, Judge
                                                         Trial Court Cause No.
                                                         71D08-1506-MR-7



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017           Page 1 of 7
                                          Case Summary
[1]   Tyron Johnson (“Johnson”) appeals his conviction for Murder, a felony. 1 We

      affirm.



                                                   Issues
[2]   Johnson presents two issues for review:


                 I.       Whether the State presented sufficient evidence to
                          establish that Johnson committed Murder rather than
                          Voluntary Manslaughter; and


                 II.      Whether the trial court abused its discretion by admitting
                          into evidence two autopsy photographs with trajectory
                          rods depicting the entrance and exit of bullets.


                                   Facts and Procedural History
[3]   During the morning of June 12, 2015, Johnson was walking toward his

      mother’s Mishawaka home with his girlfriend, Precious Jackson (“Jackson”).

      Jackson was carrying her infant son (who had been fathered by Johnson) in a

      baby carrier; her three pre-school children were following behind her. The

      couple began to engage in a heated argument about their relationship, drawing

      the attention of neighbors.




      1
          Ind. Code § 35-42-1-1.


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[4]   Johnson drew a handgun from his waistband and fired six shots. Three of the

      shots struck Jackson and she died within minutes. Johnson ran from the scene,

      tossing away the gun and shedding his clothing as he fled.


[5]   Johnson was located and arrested a few days later. On June 15, 2015, he was

      charged with Murder. His jury trial commenced on June 27, 2016. At trial,

      Johnson did not deny that he shot and killed Jackson, but argued that he was

      guilty of Voluntary Manslaughter rather than Murder because he shot her under

      sudden heat. The trial court provided the jury with an instruction on Voluntary

      Manslaughter but the jury found Johnson guilty of Murder, as charged. On

      July 25, 2016, Johnson was sentenced to sixty years’ imprisonment, with five

      years suspended. He now appeals.



                                 Discussion and Decision
                                 Sufficiency of the Evidence
[6]   Johnson concedes that he killed Jackson. However, he asks that we reverse his

      Murder conviction because the State failed to present sufficient evidence to

      rebut his claim that he acted in sudden heat.


[7]   When a human being has been killed because of the knowing or intentional

      conduct of another, the starting point that our legislature has provided is the

      offense of Murder. See I.C. § 35-42-1-1 (“A person who knowingly or

      intentionally kills another human being … commits murder, a felony.”) When

      sudden heat exists, that offense is mitigated. See I.C. § 35-42-1-3(b) (“The

      Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017   Page 3 of 7
       existence of sudden heat is a mitigating factor that reduces what otherwise

       would be murder … to voluntary manslaughter.”)


[8]    Although Voluntary Manslaughter is a lesser-included offense of Murder, it is

       an atypical example of a lesser-included offense. Watts v. State, 885 N.E.2d

       1228, 1232 (Ind. 2008). Sudden heat is not an element of Voluntary

       Manslaughter, but, to obtain a Murder conviction, the State must disprove the

       existence of sudden heat, beyond a reasonable doubt, when the defendant or the

       State has injected that issue. Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).


[9]    “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). More than

       “mere words” is required to show sudden heat, and the provocation must be

       “sufficient to obscure the reason of an ordinary man,” an objective as opposed

       to subjective standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997).

       The existence of sudden heat is a classic question of fact to be determined by

       the jury. Jackson, 709 N.E.2d at 329.


[10]   Johnson testified that he and Jackson were arguing about suspicions of cheating

       and that they engaged in mutual yelling and name-calling. He claimed that

       they exchanged open handed blows before Jackson hit him with her shoe.

       Johnson described the actual shooting in terms suggesting either a tragic

       accident or an anger-fueled “blackout.” (Tr. at 277.) According to Johnson’s


       Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017   Page 4 of 7
       testimony, he took out his gun because he thought Jackson would then “calm

       down,” but, unbeknownst to Johnson, the safety mechanism was off and

       Jackson then “rushed him.” (Tr. at 256.) He also testified that he was “so

       angry” that he was “not thinking.” (Tr. at 258.) Finally, he asserted that

       Jackson “ran up” on him after the first shot and he “blacked out” after the first

       couple of shots. (Tr. at 259.)


[11]   To the extent that the testimony of accident and anger may be said to have

       interjected the issue of sudden heat, the State bore a burden to disprove it. The

       State presented testimony from neighbors who heard a verbal argument

       immediately before Johnson drew his gun and shot Jackson. None of these

       witnesses described a blow with a shoe or provocation beyond mere words.

       The State also called as a witness Justin Jurgenson (“Jurgenson”), who had

       been incarcerated with Johnson. Jurgenson testified that Johnson had

       described the events as a “black out,” but he then “snapped out of it,” and shot

       Jackson again and then starting running. (Tr. at 141.) Jurgenson indicated that

       the “gist of” Johnson’s confession was that Jackson tried to get up, Johnson

       walked over, and shot her again. (Tr. at 144.)


[12]   The physical evidence indicated that Johnson emptied his gun; three of the six

       shots fired struck Jackson. The gun was examined and found not to be

       malfunctioning. The State presented sufficient evidence to permit the jury to

       conclude, beyond a reasonable doubt, that Johnson knowingly or intentionally

       killed Jackson and did not act in response to provocation sufficient to constitute

       sudden heat.

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                                         Photographic Evidence
[13]   During the forensic pathologist’s testimony, the State sought to introduce into

       evidence State’s Exhibits 181 and 182. These were autopsy photographs

       showing trajectory rods used by the pathologist to mark the entrance and exit of

       bullets into Jackson’s body. Johnson objected that the photographs were “very

       graphic” and their prejudicial impact outweighed their probative value. (Tr. at

       210.) On appeal, Johnson argues that the photographs had little, if any,

       evidentiary value because he had conceded that he fired the shots that caused

       Jackson’s death.


[14]   Because the admission and exclusion of evidence falls within the sound

       discretion of the trial court, the admission of photographic evidence is reviewed

       only for an abuse of discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind.

       2002). Relevant evidence, including photographs, may be excluded only if its

       probative value is substantially outweighed by the danger of unfair prejudice.

       Evidence Rule 403. Even gory or revolting photographs may be admitted if

       they are relevant to some material issue or show scenes that a witness could

       describe orally. Jackson v. State, 597 N.E.2d 950, 963 (Ind. 1992). Photographs

       that depict injuries to a victim are generally relevant and admissible. Custis v.

       State, 793 N.E.2d 1220, 1224 (Ind. Ct. App. 2003), trans. denied. However,

       when autopsy photographs show the body in an altered state, a concern may

       arise that the photographs render the defendant responsible, in the minds of the

       jurors, for the cuts, incisions, and indignity of an autopsy. Id. at 1225.



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[15]   Here, the pathologist testified that she had examined Jackson’s body and

       discovered multiple gunshot wounds; she explained that she had used trajectory

       rods to mark the bullet paths. This testimony was sufficient to alleviate any

       concern that the jury would consider Johnson responsible for this bodily

       alteration. The State offered Exhibits 181 and 182 as visual aids to show the

       jury the wounds that the pathologist was describing. The relevance of the

       photographs is not lessened because Johnson conceded that he inflicted the

       wounds. See Hines v. State, 801 N.E.2d 634, 635 (Ind. 2004) (recognizing the

       general principle that the State is entitled to prove its case by evidence of its

       own choice and a defendant may not stipulate his way out of the full

       evidentiary force of the State’s case). The challenged photographs were

       relevant, and their probative value not substantially outweighed by the danger

       of unfair prejudice.



                                               Conclusion
[16]   The State presented sufficient evidence to permit the jury to conclude that

       Johnson committed Murder and did not act in sudden heat. Johnson did not

       demonstrate that the trial court abused its discretion in the admission of

       evidence.


[17]   Affirmed.


       Vaidik, C.J., and Robb, J., concur.



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