      MEMORANDUM DECISION
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be
                                                                                   FILED
      regarded as precedent or cited before any                               Jun 17 2019, 9:03 am

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


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Ann M. Sutton                                            Curtis T. Hill, Jr.
      Indianapolis, Indiana                                    Attorney General of Indiana
                                                               Samuel J. Dayton
                                                               Deputy Attorney General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Jagger M. Williams,                                      June 17, 2019
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               18A-CR-2220
              v.                                               Appeal from the Marion Superior
                                                               Court
      State of Indiana,                                        The Honorable Mark Stoner,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               49G06-1705-MR-17805




      Tavitas, Judge.


                                               Case Summary

[1]   Jagger M. Williams appeals his conviction for murder. We affirm.
      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019                    Page 1 of 12
                                                          Issue

[2]   Williams raises one issue on appeal, which we restate as whether the evidence

      is sufficient to convict Williams of murder, instead of the lesser offense of

      voluntary manslaughter.


                                                          Facts

[3]   In 2017, Williams was involved in a relationship with both Christen Brown,

      and Charmella Upchurch; both women knew about the other woman. 1

      Upchurch indicated that the relationship between Brown and Williams was

      contentious and that they argued regularly. Upchurch recalled an occasion in

      April 2017 when Brown and Williams fought at Upchurch’s and Williams’

      home. As Brown was leaving, Williams called after her, “I told you don’t come

      over here no more you stupid b****,” and then shot at Brown’s car as she drove

      away with her children in the car. Tr. Vol. II p. 69. As Williams shot at

      Brown’s car, he said, “I’ll kill you[,] you stupid b****.” 2 Id.


[4]   On May 10, 2017, Upchurch and Williams went to a junkyard to get parts for

      Upchurch’s and Williams’ car. While at the junkyard, Brown repeatedly called

      Upchurch and Williams, and Williams became annoyed with Brown’s constant

      calls. After Upchurch and Williams left the junkyard and returned home,




      1
        Williams’ relationship with Upchurch began approximately two years prior to the May 2017 incident,
      whereas Williams’ and Brown’s relationship began approximately four months prior to the May 2017
      incident.
      2
       Williams, testifying in his defense, also recalled this incident and stated that he shot at Brown’s vehicle
      because she was threatening him.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019                       Page 2 of 12
      Brown came to Upchurch’s and Williams’ home. Williams spoke with Brown

      and allowed Brown inside. Subsequently, Upchurch, Williams, and Brown

      planned to go to a casino. On the way to the casino, the group stopped at a

      liquor store and a hotel so that Brown could inquire about the cost of a hotel

      room. Williams was drinking in the car, and Brown had one to two drinks at

      the casino.


[5]   After twenty to thirty minutes and a $500.00 loss at the casino, the group went

      to the gas station and McDonald’s restaurant across the street. While ordering

      food, Williams and Brown got into an argument about money. The argument

      was so disruptive that other patrons began to notice. Upchurch stated that the

      argument centered around Brown’s interest in using the website, “Backpage,”

      to rob people that evening, which was the reason the group checked the price of

      a hotel room earlier in the evening. Id. at 93. Brown wanted to commit the

      robberies to generate rent money. According to Upchurch, Williams did not

      refuse to commit the robberies, but he was hesitant because the last time Brown

      and Williams committed a similar robbery, the victim “got a little bit rough”

      with Brown. 3 Id. at 93.


[6]   As the group left McDonald’s, Williams and Brown continued to argue; Brown

      got upset and went back inside the restaurant. Williams stayed in the car, and

      Upchurch went inside the restaurant to talk with Brown. Upchurch told Brown




      3
          Later, Upchurch indicated that the argument centered around Brown cutting Williams’ phone off.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019                  Page 3 of 12
      that Brown “can’t win an argument [with Williams], so [Brown should] just

      leave it alone. Don’t argue.” Id. at 76.


[7]   Brown and Upchurch returned to the vehicle, and the group proceeded to

      Brown’s home so Upchurch and Williams could use the shower. While in the

      vehicle, it appeared to Upchurch that Brown and Williams reconciled because

      they were being affectionate in the backseat. At the home, Upchurch went

      inside to take a shower, and Brown and Williams went to a nearby gas station

      “to get a cigar to smoke weed.” Id. at 78. As Upchurch was getting dressed in

      Brown’s bedroom, Williams and Brown returned from the gas station and

      began to argue again. After Upchurch finished her shower and changed

      clothes, Williams also took a shower. At this point, Upchurch told Williams

      that she was going to leave, but Williams would not allow her to leave.

      Williams told Upchurch, “[Y]ou’re not going to leave no mother f******

      where. If you leave, there’s going to be a f****** problem.” Id. at 80.

      Upchurch indicated this was not an unusual response by Williams because

      Williams “always talked to [Upchurch] like that.” Id. at 81. Upchurch went

      back into Brown’s bedroom and sat on the bed.


[8]   While Williams was in the shower, Brown complained to Upchurch about

      Williams’ behavior. When Williams came out of the shower and heard Brown

      talking to Upchurch about him, Williams became angry, and he and Brown

      argued once again. Eventually, Williams told Upchurch that Williams and

      Upchurch could leave. Williams grabbed his gun, which was on the dresser,

      and put it in his pocket.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 4 of 12
[9]    While leaving the home, Upchurch walked past Brown, who was sitting on the

       stairs. As Upchurch walked out of the back door to the home, she again heard

       Brown and Williams arguing. When Upchurch reached her car, Upchurch

       turned to see Williams standing on the lower portion of the steps with Brown

       following behind. Brown had something in her hand that “looked like the

       broom” and Brown hit Williams on the back of the head with the broom while

       calling Williams a “stupid b****.” Id. at 85. Upchurch saw gunfire, as

       Williams shot Brown in the back. Williams exclaimed: “Call the police. I just

       shot her.” Id.


[10]   While Upchurch was trying to call the police and determine Brown’s address,

       Williams told Upchurch to hang up the phone and take Brown to the hospital.

       Williams put Brown in the car. Brown was “moaning” and bleeding from the

       neck. Id. at 86. Williams instructed Upchurch, “[w]hen you get [to the

       hospital,] tell them an intruder shot her.” Id. at 87. Upchurch “ran every light”

       to get to the hospital and arrived shortly thereafter. Id. Williams continued to

       call and text Upchurch asking for an update on Brown’s condition; Upchurch

       told Williams that Brown died. 4


[11]   Upchurch subsequently tried to identify Williams for detectives using Williams’

       Facebook account; however, Williams deleted his Facebook account before she




       4
        The most significant of Brown’s injuries was the bullet’s entry into her carotid artery. Brown ultimately
       died of a “perforated gunshot wound of the neck and trunk of the body. The manner of death being
       homicide.” Tr. Vol. II p. 114.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019                     Page 5 of 12
       could do so. Officer Leonard Nelson with the Indianapolis Metropolitan Police

       Department (“IMPD”) interviewed Upchurch and obtained additional

       information regarding Williams in order for officers to locate Williams.

       Officers were ultimately able to locate Williams at a Motel 8.


[12]   At the Motel 8, officers recovered Williams’ cell phone. IMPD Detective Grant

       Melton reviewed the contents of Williams’ phone. During the investigation,

       Detective Melton discovered that Brown was deleted as a contact in Williams’

       phone after May 10, 2017, at 9:32 p.m. Williams had previously contacted

       Brown using his phone and sent Brown a text message on April 19, 2017, which

       stated, “Ima shoot yo s*** up I got bullets.” Id. at 138. Williams’ phone also

       contained messages from the early morning hours of May 11, 2017, asking

       friends if they could loan Williams a car or could purchase a bus ticket for him.

       That same morning, Williams also visited an Indianapolis news website and

       searched “woman shot and killed on the east side.” Id. at 133.


[13]   Williams was charged with murder on May 15, 2017. Williams waived his

       right to a jury trial, and a bench trial occurred on August 6, 2018. Witnesses

       testified to the foregoing facts. Williams testified in his own defense and stated

       that: (1) he shot toward the house because Brown was throwing things at

       Williams, and Williams “shot to scare [Brown];” (2) he was able to get the

       room at the Motel 8 in another person’s name after he left Brown’s home; and

       (3) he did not recall much more after that because he was “kind of intoxicated.”

       Id. at 147, 154.



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 6 of 12
[14]   In closing arguments, Williams’ attorney asked the trial court to find Williams

       not guilty of murder and, instead, guilty of reckless homicide or voluntary

       manslaughter based on the theory that the shooting occurred in sudden heat. In

       reaching its conclusion, the trial court stated:


               Now the question is [--] is it murder or is it sudden heat. The
               Defense has also argued for sudden heat. Sudden heat,
               according to the case law and a direct quote that all the lawyers
               are familiar with, “Sudden heat requires sufficient provocation to
               engender passion. Sufficient provocation is demonstrated by
               anger, rage, sudden resentment, or terror that is sufficient to
               obscure the reason of an ordinary person.” Emphas[is] on
               ordinary person. To prevent deliberation and premeditation, the
               Defendant incapable of cool refection. The classic stereotype for
               sudden heat is a man who has no idea or, doesn’t have to be sex
               specific, I guess, it’s just a stereotype. It’s a spouse that finds --
               has no idea that their spouse is cheating on them ad [sic] comes
               home and finds the spouse in bed with another person. That’s
               kind of your typical I am so angry, so surprised so -- that I don’t
               have time to think about it at all and I just kill. That is your
               stereo typical [sic] sudden heat. There are plenty of other
               circumstances that can be sudden heat. But that’s the kind of
               example we get. Because we are talking about if something
               would make somebody really mad and it’s something that you
               would do totally out of control and something that you had
               intended to do it, but if you had thought about it or had a little
               time to reflect on it at all, you’d never have done it. And as I
               listened to the testimony I [] considered that.


                                                     *****


               But the bottom-line is being that the definition of sudden heat
               talks about the reason of an ordinary person. And an ordinary
               person isn’t one that is this manipulative and this controlling in

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 7 of 12
               relationships. And an ordinary person isn’t one that sends out
               text messages saying I’m going to kill you and I’ve got bullets for
               you. An ordinary person is the one within my description that
               doesn’t expect to find their spouse in bed with someone else and
               then is so uncontrollably angry that we could look at that and
               say, yeah, if I was in that person’s shoes, it would have been
               dumb but I might of [sic] done the same thing. That’s not what
               we have here. This is not ordinary conduct. This is not one
               talking about cool reflection and deliberation. It is an individual
               that is used to [being] controlling. And almost within the
               immediate time of having shot the victim was already cooling
               [sic] reflecting as to how they were going [to] deal with the
               situation. It’s somebody else’s responsibility to take them to the
               hospital. It’s somebody else’s responsibility to learn how it
               happened. Because you tell the person that it’s going to be an
               intruder. An ordinary person would have sat there and did what
               the Defendant tried to say, which was how sorry he was and how
               badly he needed to go to the hospital to try and help her and how
               badly he needed to explain to the police how this happened and
               how it was a terrible terrible mistake. Instead the evidence very
               much shows the Defendant’s manipulation of the circumstances,
               what his concerns were in terms of his consciousness of guilt.


       Tr. Vol. II pp. 168-170. The trial court found Williams guilty of murder.

       Williams now appeals.


                                                    Analysis

[15]   Williams argues that the evidence was insufficient to convict him of murder

       because there was evidence of sudden heat, and accordingly, Williams should




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 8 of 12
       have been found guilty of voluntary manslaughter. 5 Specifically, Williams

       contends that, instead of finding that Williams knowingly or intentionally killed

       Brown, which is a requirement for a murder conviction, the trial court should

       have found that Williams killed Brown under sudden heat.


[16]   When there is a challenge to the sufficiency of the evidence, “[w]e neither

       reweigh evidence nor judge witness credibility.” Gibson v. State, 51 N.E.3d 204,

       210 (Ind. 2016) (citing Bieghler v. State, 481 N.E.2d 78, 84 (Ind. 1985), cert.

       denied), cert. denied. Instead, “we ‘consider only that evidence most favorable to

       the judgment together with all reasonable inferences drawn therefrom.’” Id.

       (quoting Bieghler, 481 N.E.2d at 84). “We will affirm the judgment if it is

       supported by ‘substantial evidence of probative value even if there is some

       conflict in that evidence.’” Id. (quoting Bieghler, 481 N.E.2d at 84); see also

       McCallister v. State, 91 N.E.3d 554, 558 (Ind. 2018) (holding that, even though

       there was conflicting evidence, it was “beside the point” because that argument

       “misapprehend[s] our limited role as a reviewing court”). Further, “[w]e will

       affirm the conviction unless no reasonable fact-finder could find the elements of




       5
         In portions of Williams’ brief, he appears to be arguing that the murder was not performed “knowingly,”
       but “recklessly.” Appellant’s Br. p. 13. While Williams did argue reckless homicide at the trial court level,
       he does not restate this argument for appeal, except for the brief mention that “[c]onduct is [performed]
       ‘knowingly’ if, when engaged in the conduct, the actor is aware of a high probability that he is doing so, as
       opposed to ‘recklessly’ where the conduct is done with plain, conscious, and unjustifiable disregard of harm .
       . .,” and that Williams’ actions were “born[e] out of heat, and perhaps reckless disregard for the harm that
       might result.” Id. at 13, 14. To the extent that Williams attempts to reargue that he should have been
       convicted of reckless homicide instead of murder, his argument is waived for failure to make a cogent
       argument.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019                     Page 9 of 12
       the crime proven beyond a reasonable doubt.” Love v. State, 73 N.E.3d 693, 696

       (Ind. 2017) (citing Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007)).


[17]   In determining whether the evidence is sufficient, we must consider the

       elements of murder and voluntary manslaughter. A person commits murder, as

       defined by Indiana Code Section 35-42-1-1, when the person, “[k]nowingly or

       intentionally kills another human being. . . .” A person commits voluntary

       manslaughter, as defined by Indiana Code Section 35-42-1-3, when the 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 otherwise would be murder . . . to voluntary manslaughter.” Ind.

       Code § 35-42-1-3(b).


[18]   We have held:


               [a]lthough [v]oluntary [m]anslaughter is a lesser-included offense
               of [m]urder, it is an atypical example of a lesser-included offense.
               In the case of [v]oluntary [m]anslaughter, sudden heat is a
               mitigating factor that the State must prove in addition to the
               elements of murder. Sudden heat must be separately proved . . . .


       Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010), trans. denied.

       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) (quoting Isom

       v. State, 31 N.E.3d 469, 486 (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016)).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 10 of 12
[19]   Importantly, conflict, argument, and fighting alone do not give rise to a finding

       of sudden heat. Instead, one must be provoked by more than “mere words”

       and “the provocation must be sufficient to obscure the reason of an ordinary

       man,” judged by an objective standard. Suprenant, 925 N.E.2d at 1282-83

       (quotations and citations omitted). Accordingly, we must determine whether

       the trial court, as fact finder, improperly found evidence that Williams

       knowingly or intentionally killed Brown, instead of finding evidence of sudden

       heat.


[20]   The record reveals there was evidence of anger and an argument on the night of

       Brown’s death. Brown and Williams argued intermittingly throughout the

       night, which resulted in Brown hitting Williams with a broom. These facts,

       however, fail to support the allegation that Williams killed Brown under sudden

       heat. Williams acknowledges his response, on some level, was “irrational”

       stating, “[t]his irrational response was made with less than seconds to reflect,

       rather than a knowing determination to inflict harm.” Appellant’s Br. p. 14.

       Moreover, the evidence also demonstrated that Williams previously shot at a

       car that Brown rode in with her children and threatened to kill Brown both via

       text message and verbally in the month before Brown’s death. Williams made

       it known on more than one occasion that he would kill Brown if she continued

       to behave in a way that Williams did not like. See Earl v. State, 715 N.E.2d

       1265, 1267 (Ind. 1999) (noting that evidence regarding the night before the

       murder where defendant threatened to kill the victim with a shovel and a meat

       cleaver was a “statement of intent [that] foreshadowed events to come and


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 11 of 12
       served to illustrate premeditation and calculation, rather than the sudden heat

       asserted by Defendant”).


[21]   Ultimately, “[e]xistence of sudden heat is a classic question of fact to be

       determined by the [fact-finder].” Brantley, 91 N.E.3d 566 (quoting Fisher v.

       State, 671 N.E.2d 119, 121 (Ind. 1996)). The trial court, after hearing all the

       evidence, especially the evidence regarding Williams’ prior threats and actions,

       concluded that Williams was not acting under sudden heat but, instead,

       knowingly or intentionally killed Brown. The evidence was sufficient to reach

       this conclusion beyond a reasonable doubt, and we will not reweigh the

       evidence to reach a different conclusion. See Earl, 715 N.E.2d at 1267 (“the trial

       court, as finder of fact, had the responsibility of balancing [presented evidence

       of sudden heat] against that suggesting that Defendant intentionally killed [the

       victim] and was not acting in sudden heat”). Accordingly, the evidence was

       sufficient to convict Williams of murder.


                                                  Conclusion

[22]   The evidence is sufficient to convict Williams of murder. We affirm.


[23]   Affirmed.


       Crone, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2220 | June 17, 2019   Page 12 of 12
