MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                 FILED
this Memorandum Decision shall not be                              Jan 18 2017, 8:41 am

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


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
P. Jeffrey Schlesinger                                   Curtis T. Hill, Jr.
Appellate Division – Office of the Public                Attorney General of Indiana
Defender
                                                         J.T. Whitehead
Crown Point, Indiana                                     Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaiah Levert Hughes,                                    January 18, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         45A03-1606-CR-1317
        v.                                               Appeal from the Lake Superior
                                                         Court
State of Indiana,                                        The Hon. Kathleen A. Sullivan,
Appellee-Plaintiff.                                      Judge Pro Tempore
                                                         Trial Court Cause No.
                                                         45G03-1308-MR-7



Bradford, Judge.




Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017    Page 1 of 8
                                          Case Summary
[1]   On July 12, 2013, Appellant-Defendant Isaiah Levert Hughes fired four shots at

      B.J. Fullilove. Fullilove later died from his injuries. That same evening at the

      police station, Hughes voluntarily confessed to firing the shots. On August 27,

      2013, Appellee-Plaintiff, the State of Indiana (the “State”), charged Hughes

      with one count of felony murder.


[2]   A jury trial was held from February 8, 2016 through February 12, 2016. At the

      conclusion of the trial, the jury found Hughes guilty of the lesser offense of

      voluntary manslaughter. The trial court sentenced Hughes on April 5, 2016, to

      twenty-five years, with twenty years executed and five years suspended.

      Hughes filed a motion to correct error that same day. A hearing was held on

      the motion on May 9, 2016. Following the hearing, the trial court denied

      Hughes’s motion to correct error. On appeal, Hughes contends that the trial

      court abused its discretion when it gave an instruction on voluntary

      manslaughter over Hughes’s objection. Concluding that the trial court did not

      abuse its discretion when it gave an instruction on voluntary manslaughter, a

      lesser offense of felony murder, we affirm.



                            Facts and Procedural History
[3]   In July of 2013, Kendra Banks and her boyfriend Fullilove lived in Gary,

      Indiana with their son and daughter. On July 12, 2013, Banks hosted a party, a

      “girls’ night” for her friend LaQuita Glass’s birthday. Tr. 143. Glass, Desire


      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017   Page 2 of 8
      Williams, Kenisha Williams, and Billy D. Borders were the first to arrive at the

      party. Later in the evening, Hughes and his wife Konica Johnson arrived at the

      party. Christine Haywood, Nathaniel McIntee, and James Dunkin arrived

      sometime later. During the party, the guests were drinking, talking, and

      listening to music inside and outside of Fullilove and Banks’s home.


[4]   Between two and three in the morning, Fullilove returned home with food and

      Banks told all of the guests it was time to leave. The guests began to argue and

      fight each other outside of the home.1 Around that same time, Banks retrieved

      Fullilove’s firearm from the entertainment center and took it upstairs because

      she knew that Borders “like[d] to use weapons.” Tr. p. 155. Banks again told

      everyone to leave and Banks then handed the gun to Fullilove before he went

      upstairs. After approximately two minutes, Fullilove joined Banks in the living

      room to eat their food.


[5]   When the arguing and fighting continued, Fullilove decided to call the police;

      his 911 call was made at 3:23 a.m. The police never arrived. Around ten

      minutes later, Glass came to Banks and Fullilove’s door to announce that

      Hughes was fighting someone outside. Fullilove then joined Banks outside and

      Hughes and Johnson pulled up in a vehicle. When the vehicle stopped, Banks

      saw that Johnson was pointing “a gun out of the window towards [Fullilove]’s

      direction and said she was going to shoot.” Tr. p. 170. Banks walked over to




      1
          There as conflicting evidence as to who started the fighting and what prompted the initial argument.


      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017             Page 3 of 8
      the vehicle and told Johnson that “she wasn’t going to shoot him because he

      was [Banks’s] child’s father.” Tr. p. 171. Johnson subsequently swung the gun

      at her and they started fighting.


[6]   Hughes then exited the vehicle and started fighting Fullilove. Both Hughes and

      Fullilove began to punch each other. Their fight moved around and they began

      to wrestle near the edge of the street. At some point, Banks tried to break up

      the fight, but they continued to wrestle around for approximately five more

      minutes.


[7]   Once Hughes and Fullilove stopped fighting, Hughes ran around to his vehicle

      and began shooting at Fullilove. Hughes fired his weapon at Fullilove four

      times. Banks never saw Fullilove with a firearm outside nor did she see him

      point a gun at Hughes. After shooting, Hughes returned to his vehicle as

      another vehicle, with McIntee and Duncan inside, pulled in behind him. Once

      both vehicles left the neighborhood, Banks found Fullilove on the ground

      bleeding. Fullilove told Banks that “he got shot, and he told [her] to call the

      ambulance.” Tr. p. 185. Banks’s 911 call occurred at 3:32 a.m.


[8]   Williams returned to the scene and applied pressure to Fullilove’s wounds

      while they waited for the ambulance to arrive. Shortly thereafter, Haywood

      also returned to the scene. Despite the women’s efforts, Fullilove died several

      days later from injuries.


[9]   The State charged Hughes on August 27, 2013, with one count of felony

      murder. After Hughes learned of the criminal charges, he returned to Indiana

      Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017   Page 4 of 8
       and turned himself in. A jury trial was held on February 8, 2016, and

       concluded on February 12, 2016. During the trial, the State requested a jury

       instruction for voluntary manslaughter, which request the trial court granted

       over Hughes’s objection. Hughes renewed his objection and the trial court,

       again, over-ruled the objection to the voluntary manslaughter instruction. After

       deliberations, the jury found Hughes guilty of the lesser offense of voluntary

       manslaughter.



                                  Discussion and Decision
[10]   Hughes argues that the trial court improperly instructed the jury on voluntary

       manslaughter, at the State’s request, during his trial for felony murder.

               The manner of instructing a jury is left to the sound discretion of
               the trial court. Its ruling will not be reversed unless the
               instructional error is such that the charge to the jury misstates the
               law or otherwise misleads the jury. Jury instructions must be
               considered as a whole and in reference to each other.


       Patton v. State, 837 N.E.2d 576, 579 (Ind. Ct. App. 2005) (internal citations

       omitted).


[11]   In the present case, the trial court gave an instruction for voluntary

       manslaughter, a lesser offense of murder. To determine whether an instruction

       for a lesser offense should be given, the trial court must consider the following

       in a three-step analysis:




       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017   Page 5 of 8
               1) a determination of whether the lesser included offense is
               inherently included in the crime charged; if not, (2) a
               determination of whether the lesser included offense is factually
               included in the crime charged; and, if either, (3) a determination
               of whether a serious evidentiary dispute existed whereby the jury
               could conclude the lesser offense was committed but not the
               greater.


       Clark v. State, 834 N.E.2d 153, 157 (Ind. Ct. App. 2005) (citing Wright v. State,

       658 N.E.2d 563, 566-67 (Ind. 1995)). If there is evidence of a substantial

       evidentiary dispute about an element distinguishing the offenses, and a jury

       could conclude that the lesser offense, but not the greater offense was

       committed, a court cannot reject the tendered instruction for the lesser offense if

       requested to do so; failure to give such instruction would be reversible error.

       Wright, 658 N.E.2d at 567.


[12]           Although voluntary manslaughter is a lesser included offense of
               murder, it is not a ‘typical’ lesser included offense, because
               instead of requiring the State to prove less than all the elements
               of murder, it requires the State to prove all of the elements of
               murder and disprove the existence of sudden heat when there is
               any appreciable evidence of such in the record. Additionally, a
               conviction for voluntary manslaughter constitutes an acquittal of
               murder. The absence of sudden heat is not an element of
               murder, and a jury ordinarily does not have to be instructed that
               the State has the burden of disproving the existence of sudden
               heat in order to gain a murder conviction. If there is no evidence
               in the record of sudden heat, the jury need not be instructed that
               the State bears the burden of disproving the existence of sudden
               heat. If, however, the record contains any appreciable evidence
               of sudden heat, an instruction on voluntary manslaughter is
               justified. Additionally, such evidence may arise from either the


       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017   Page 6 of 8
               State’s or the defendant’s evidence; the defendant does not bear
               the burden of placing the issue of sudden heat into question.


       Roberson v. State, 982 N.E.2d 452, 457 (Ind. Ct. App. 2013) (internal citations

       omitted).


[13]   “Sudden heat” has been defined 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.” Id. Additionally, “any alleged provocation must be such that it

       would obscure the reason of an ‘ordinary man,’ which is an objective as

       opposed to subjective standard.” Id. at 457. However, “[u]nlike the right to

       self-defense, which ceases to exist once a danger has passed, sudden heat can

       survive for a while beyond the act of provocation.” Id. at 457 (internal citation

       and quotations omitted). Therefore, “[a]ny appreciable evidence of sudden heat

       justifies an instruction on voluntary manslaughter.” Washington v. State, 808

       N.E.2d 617, 626 (Ind. 2004).


[14]   After a review of the evidence and record, we conclude that there was ample

       evidence of possible sudden heat. Throughout the early morning of July 13,

       2013, there was evidence that Fullilove and Hughes were fighting and that

       Fullilove threw the first punch. There was also evidence in the record that

       Hughes, not Fullilove, was the initial aggressor. Hughes himself testified that

       he was upset the night of the party because he saw women, including

       Fullilove’s girlfriend, attacking his wife. There was also evidence that Hughes’s

       wife aimed a gun at Fullilove and swung her gun at Fullilove’s girlfriend.
       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017   Page 7 of 8
       Fullilove’s girlfriend also testified that the fighting between Fullilove and

       Hughes lasted three to five minutes before the shooting occurred.

       Consequently, based upon the above-mentioned evidence, there was sufficient

       evidence of rage, anger, and resentment to warrant an instruction on the lesser-

       included offense of voluntary manslaughter.


[15]   We affirm.


       Vaidik, C.J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 45A03-1606-CR-1317 | January 18, 2017   Page 8 of 8
