MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), this                               FILED
Memorandum Decision shall not be                                      Jun 16 2016, 8:28 am

regarded as precedent or cited before any                                 CLERK
court except for the purpose of establishing                          Indiana Supreme Court
                                                                         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
Charles W. Lahey                                         Gregory F. Zoeller
South Bend, Indiana                                      Attorney General of Indiana
                                                         Eric P. Babbs
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Isaiah Samelton,                                         June 16, 2016
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         71A03-1509-CR-1589
        v.
                                                         Appeal from the St. Joseph
                                                         Superior Court
State of Indiana,
                                                         The Honorable Jane Woodward
Appellee-Plaintiff.                                      Miller, Judge
                                                         Trial Court Cause No.
                                                         71D01-1407-F1-2



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016          Page 1 of 13
                                   STATEMENT OF THE CASE

[1]   Appellant-Defendant, Isaiah Samelton (Samelton), appeals his conviction for

      attempted murder, a Level A felony, Ind. Code §§ 35-42-1-1; -41-5-1; and

      aggravated battery, a Level 3 felony, I.C. § 35-42-2-1.5(2).


[2]   We affirm.


                                                    ISSUES

[3]   Samelton raises two issues on appeal, which we restate as follows:

      (1) Whether the trial court abused its discretion in admitting certain evidence;

      and

      (2) Whether the trial court abused its discretion by not instructing the jury on

      Samelton’s proposed jury instruction offering attempted voluntary

      manslaughter as a lesser included offense to the attempted murder charge.


                           FACTS AND PROCEDURAL HISTORY

[4]   During the evening hours of July 9, 2014, Antonio Garcia (Garcia) was

      working as a cashier at the Phillips 66 gas station located at the corner of

      Western Avenue and Falcon Street in South Bend, Indiana. Willie Menyard

      (Menyard), a patron at the store, was prepaying for his gas. At about that time,

      a red sedan drove into the pump area and, without stopping, drove to the front

      of the store entrance. An individual inside the car pointed a gun out of the

      driver’s side window and began firing. As Menyard was exiting the store, a

      bullet struck him in his back and exited out of his right arm. The red sedan

      then turned around, drove back into the pump area where the customer vehicles

      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 2 of 13
      remained parked, and fired more shots. The vehicle circled around the pump

      area before speeding off. The patrons outside the gas station ran for cover.


[5]   Garcia called the police. Also, the Shot-Spotter system—a gunshot detection,

      alert and analysis tool that incorporates sensors to detect, locate, and alert law

      enforcement agencies of illegal gunfire incidents in real time—notified the

      police. Four bullet fragments and seventeen fired casings were left at the scene.

      Officer Greg Howard (Officer Howard) of the South Bend Police Department

      got the description of the red car and its suspects after reviewing the store

      surveillance videos and started searching the surrounding area. Driving on

      Meade Street, Officer Howard located the suspected red sedan parked on the

      sidewalk. After watching the car for a couple of minutes, he saw two male

      individuals enter the vehicle, and drive south on Meade Street toward Western

      Avenue. When the red sedan crossed Western Avenue, Officer Howard

      initiated a traffic stop. Samelton was identified as the driver. A male, later

      identified as Juwan Jones (Jones), exited the vehicle from the passenger’s side

      and ran through an alley. During the foot pursuit, Officer Howard saw an

      object, later identified as a semiautomatic handgun, fall from Jones’ person.

      The handgun contained a loaded magazine. The following day, a K-9 officer

      found another semiautomatic handgun along the route where Jones had fled. A

      magazine was also found nearby. Each of the semiautomatic handguns

      matched the casings and the bullet fragments left at the gas station. The fired

      casings were both on the west and east sides of the gas station’s property.

      Garcia’s car, which was parked on the west side parking lot, sustained damage


      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 3 of 13
      from three bullet holes. Also, a gas pump and a dumpster sustained bullet

      damage.


[6]   On July 11, 2014, the State filed an Information, charging Samelton with Count

      I, attempted murder, a Level 1 felony; and Count II, aggravated battery, a Level

      3 felony. Samelton’s jury trial commenced on August 25, 2015. Among the

      evidence introduced and admitted were the two semiautomatic firearms, bullet

      fragments, and casings recovered from the gas station, the gas station’s

      surveillance videos 1, and Exhibit 101, a map image showing the approximate

      location of each of the twenty-three shots fired at the gas station. Exhibit 101

      also included a large circle representing a twenty-five meter margin of error.

      Samelton argued, in part, that the margin of error would essentially place each

      gunshot anywhere in the circled area, and consequently “have no assurance

      that shot number 1 wasn’t really taken from location number 22 or that 21 was

      taken from location number 2[.]” (Transcript p. 273). After hearing Samelton’s

      arguments, and the testimony on how the Shot-Spotter system works, the trial

      court overruled Samelton’s objection and admitted Exhibit 101 into evidence.




      1
       The record shows that the surveillance videos were admitted as Exhibit 2, however, they were submitted
      with Jones’ appeal, and therefore were unavailable for Samelton’s appeal.

      Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016          Page 4 of 13
[7]   At the close of the evidence, Samelton requested the trial court to instruct the

      jury on attempted voluntary manslaughter as a lesser included offense of

      attempted murder. The trial court refused to tender the instruction, finding that

      there was no appreciable evidence of sudden heat. At the close of trial, the jury

      found Samelton guilty as charged. On September 23, 2015, the trial court

      sentenced Samelton to concurrent sentences of thirty years for his attempted

      murder conviction and nine years for his aggravated battery conviction.


[8]   Samelton now appeals. Additional facts will be provided as necessary.


                                  DISCUSSION AND DECISION

                                         I. Admission of Evidence

[9]   We review the admission of evidence for an abuse of discretion. Wilson v. State,

      765 N.E.2d 1265, 1272 (Ind. 2002). An abuse of discretion occurs “where the

      decision is clearly against the logic and effect of the facts and circumstances.”

      Smith v. State, 754 N.E.2d 502, 504 (Ind. 2001). Indiana Evidence Rule 702

      governs the admissibility of testimony by expert witnesses. It provides that:

              (a) A witness who is qualified as an expert by knowledge, skill,
              experience, training, or education may testify in the form of an opinion
              or otherwise if the expert’s scientific, technical, or other specialized
              knowledge will help the trier of fact to understand or to determine a
              fact in issue.


              (b) Expert scientific testimony is admissible only if the court is satisfied
              that the expert testimony rests upon reliable scientific principles.




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[10]   The trial court acts as a gatekeeper when determining the admissibility of

       opinion evidence under Rule 702. Estate of Borgwald v. Old Nat’l Bank, 12

       N.E.3d 252, 257 (Ind. Ct. App. 2014). “The proponent of expert testimony

       bears the burden of establishing the foundation and reliability of the scientific

       principles.” Doolin v. State, 970 N.E.2d 785, 787 (Ind. Ct. App. 2012). “In

       determining whether scientific evidence is reliable, the trial court must

       determine whether the evidence appears sufficiently valid, or, in other words,

       trustworthy, to assist the trier of fact.” Id. at 788.


[11]   Samelton seems to challenge the accuracy of Exhibit 101, arguing that because

       there was a twenty-five meter margin of error using the Shot-Spotter system,

       there was no way of decoding the accurate location of each of the twenty-three

       bullets fired at the gas station.


[12]   Paul Greene (Greene), the lead forensic analyst at SST Inc.—the company that

       developed and manufactures the Shot-Spotter system—testified that he had

       written close to 600 forensic reports on shooting incidents and given testimony

       in court thirty-six times. He stated that the purpose of the Shot-Spotter system

       is to “simply provide law enforcement agencies, rapid notification that a

       weapon has been fired within their jurisdiction, or at least within the sensory

       area.” (Tr. p. 255). Greene explained the science behind the Shot-Spotter

       system stating, in relevant part:

               The [Shot-Spotter] system is an acoustic gunshot detection system. It
               is comprised of three separate parts. The first being the sensors. [] It
               has a processor board. It has a memory. It has a GPS receiver, and it
               also has a radio modem that allows network communication back to
       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 6 of 13
               the location of the server. The location server is the second part of the
               system, and it’s a software application that gathers all of the
               information that is sent [] by different sensors. It matches pulses from
               different sensors and then is able to locate the origin of a gunshot
               incident, whether single shot or multiple shots. It then reports that
               information to the user interface. The user interface is the third
               portion of it. We call that the [] investigator portal or the alert console
               which resides on the operator’s desktop or laptop computer. It is
               where they receive the alerts.


       (Tr. pp. 243-44). Greene testified that the Shot-Spotter system notifies law

       enforcement agencies within sixty seconds of any gunfire, and “they get a dot

       on the map indicating the latitude and longitude of where that incident

       happened, and they also get a street address.” (Tr. p. 256). There are sixty-five

       sensors installed in South Bend, and six of those sensors detected the gunfire.

       Greene identified Exhibit 101 as an aerial map of the gas station with twenty-

       three superimposed bullseye-type graphics reflecting the estimated location of

       each of the gunshots fired on July 9, 2014. The map also had a large circle

       representing a twenty-five meter margin of error, centered from the first shot

       fired. Greene explained that all twenty-three shots were within the twenty-five

       meter radius circle, and so “shot number 12 could have easily have been shot

       number 17 within the margin of error.” (Tr. p. 266).


[13]   Samelton objected to the admission of Exhibit 101 by arguing, in part:

                Our objection is to the attempt to extrapolate back the precise time of
                each shot and most particularly the location of each shot, because by
                doing so we have such a great margin of error in the scientific
                evaluation that it creates a situation where literally each of the
                gunshots is within the same area, and the margin of error essentially
                would place each gunshot anywhere within that circled area, and

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 7 of 13
                consequently we have no assurance that shot number 1 wasn’t really
                taken from location number 22 or that 21 was taken from location
                number 2.

                So I think [] that’s the problem right there. I think the [S]tate has
                failed to demonstrated that that process . . . meets scientific standards.
                . . . In essence, we’re telling the jury we have an expert telling the
                jury that this is where the shots occurred, when in fact, he is not. He’s
                saying, within this margin of error, any of these shots could have been
                taken from the location . . . .


[14]   (Tr. pp. 273-74). After hearing Samelton’s arguments and Greene’s testimony

       regarding the Shot-Spotter system, the trial court overruled Samelton’s

       objection to Exhibit 101, by stating, in part:

               Looking at Rule 702 just on the face of the rule, [] scientific, technical,
               or other specialized knowledge would assist the tier of fact to
               understand the evidence or to determine fact in issue, a witness
               qualified as an expert by knowledge, skill, experience, training or
               education may testify thereto in the form of opinion or otherwise.

               I think we have established that this witness has that kind of technical
               and specialized knowledge that he has accrued only in his current job
               [] and he certainly seems to have deep knowledge of science and math
               that I don’t share but certainly explains it in a way that I feel that I’m
               understanding. . . .

               I am satisfied with the scientific principles upon which the expert
               testimony based as reliable. . . .

               And I think that the State’s Exhibit 101 does provide the jury with the
               understanding that this is not a perfect science in the sense that, and
               maybe I’m using the word science wrong and maybe the system would
               be more accurate, and they cannot with a hundred percent accuracy to
               the centimeter determine the location of a shot when it has been fired,
               but I think this coupled with other evidence that’s presented certainly
               tells me, one, that there is enough scientific principles to allow it, and
               two, that the prejudice of this information does not outweigh its
       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 8 of 13
               probative value. . . . . So I’m overruling the objections to both Exhibits
               101, and 102.


       (Tr. pp. 281-83).


[15]   We find Samelton’s argument insufficient to establish an abuse of the trial

       court’s discretion in admitting Exhibit 101. In determining whether scientific

       evidence is reliable, the trial court must determine whether the evidence appears

       sufficiently valid, or, in other words, trustworthy, to assist the trier of fact.

       Doolin, 970 N.E.2d at 788. The trial court evaluated Greene’s testimony at

       length, and it determined that the scientific principle or workings of the Shot-

       Spotter system were reliable in presenting evidence of a shooting at the gas

       station. The jury could have readily understood from Greene’s testimony that

       all twenty-three shots were fired in the area roughly corresponding to the gas

       station’s property. Accordingly, the jury was not presented with inaccurate

       information, but instead with a margin of error that allowed them to judge and

       weigh the persuasiveness of Exhibit 101.


[16]   The State argues that, under the circumstances, however, any error in the

       admission of Exhibit 101 is harmless. It is well recognized that any error in

       admitting evidence will be found harmless where the evidence is merely

       cumulative. Fuller v. State, 674 N.E.2d 576, 578 (Ind. Ct. App. 1996). We note

       that the import of Exhibit 101 only corroborated that a shooting had occurred,

       and was merely cumulative to the following evidence: Garcia, the gas station

       attendant, testified that he saw the gunshots coming from the red sedan;

       Menyard was struck twice by bullets; the bullets and casing recovered at the gas

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 9 of 13
       station matched the firearms recovered during the police investigation; and the

       gas station’s surveillance video displayed the shooting. In light of the

       foregoing, we conclude that trial court did not abuse its discretion in admitting

       Exhibit 101.


                          II. Attempted Voluntary Manslaughter Instruction

[17]   Lastly, Samelton argues that the trial court abused its discretion when it denied

       his proposed jury instruction offering attempted voluntary manslaughter as a

       lesser included offense to the attempted murder charge. In response to

       Samelton’s assertion, the State argues that the trial court correctly determined

       that the evidence did not support the tendering of the instruction because there

       was no appreciable evidence of sudden heat.


[18]   In general, a trial court has complete discretion in matters pertaining to jury

       instructions. Driver v. State, 760 N.E.2d 611, 612 (Ind. 2002). In reviewing

       whether a trial court has abused its discretion by refusing to include a party’s

       jury instruction, this court considers: (1) whether the instruction correctly states

       the law; (2) whether the evidence supports giving the instruction; and (3)

       whether any other instructions cover the same substance as the excluded

       instruction. Id.


[19]   In Wright v. State, 658 N.E.2d 563, 566-67 (Ind. 1995), our supreme court held

       that a trial court must give a tendered lesser included offense instruction if the

       alleged lesser included offense is either inherently or factually included in the

       crime charged and there is a serious evidentiary dispute about the element or


       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 10 of 13
       elements distinguishing the greater from the lesser offense such that a jury could

       conclude that the lesser offense was committed but the greater was not.

       Voluntary manslaughter is an inherently included offense of murder because it

       requires proof of the same material elements as murder. See Champlain v. State,

       681 N.E.2d 696, 701-02 (Ind. 1997). This is true because voluntary

       manslaughter is murder with the mitigating factor that it was committed while

       acting under sudden heat. Id. For the same reasons, attempted voluntary

       manslaughter is an inherently included offense of attempted murder.


[20]   Sudden heat has been defined as “sufficient provocation to excite in the mind of

       the defendant such emotions as anger, rage, sudden resentment, or terror, and

       that such excited emotions may be sufficient to obscure the reason of an

       ordinary man.” Fox v. State, 506 N.E.2d 1090, 1093 (Ind. 1987). Sudden heat

       is not an element of voluntary manslaughter. See Boesch v. State, 778 N.E.2d

       1276, 1279 (Ind. 2002). Rather, it is that which distinguishes voluntary

       manslaughter from murder.


[21]   Here, the question is whether there was appreciable evidence of sudden heat,

       and from the record, we find that there was no evidence of sufficient

       provocation nor was there any evidence that Samelton was in such a state of

       terror or rage that he became incapable of cool reflection. At the hearing,

       Garcia, the gas station attendant, testified that a red sedan drove into the pump

       area and without stopping, drove to front of the store entrance, and an

       individual inside the car pointed a gun out of the driver’s side window and

       began firing. As Menyard walked out of the store, he was struck by gunfire.

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 11 of 13
       Soon after, Garcia called 911, and while still on the phone, Garcia saw the red

       vehicle circle around the parking lot, drive back through the pumps, and over to

       west side of the store. Multiple shots were fired in sequence. As the red vehicle

       sped away from the scene, the patrons outside the gas station ran for cover.

       After the police arrived, Garcia showed them the surveillance videos which

       documented the shooting. In addition, the State published the gas station’s

       surveillance videos to the jury. Furthermore, Greene, the forensic analyst,

       testified that the first shot was fired at 10:41:33 p.m. and the twenty-third shot

       was fired at 10:42:12 p.m. The incident lasted thirty-nine seconds.


[22]   We find that the numerous shots, fired in rapid succession, revealed a deliberate

       attack on the persons at the gas station. Accordingly, we find that the evidence

       was not susceptible of an inference that Samelton was rendered incapable of

       cool reflection and deliberation. Because there was no evidence of sudden heat

       and no serious evidentiary dispute, the trial court did not abuse its discretion

       when it refused to tender Samelton’s tendered instruction of attempted

       voluntary manslaughter.


[23]   Moreover, we note that Samelton’s attempted voluntary manslaughter

       instruction incorrectly stated the law. The purpose of jury instructions is to

       inform the jury of the law applicable to the facts without misleading the jury

       and to enable it to comprehend the case clearly and arrive at a just, fair, and

       correct verdict. Munford v. State, 923 N.E.2d 11, 14 (Ind. Ct. App. 2010). A

       trial court does not err by refusing an instruction that incorrectly states the law.

       See McEwen v. State, 695 N.E.2d 79, 84, n.1 (Ind. 1998).

       Court of Appeals of Indiana | Memorandum Decision 71A03-1509-CR-1589 | June 16, 2016   Page 12 of 13
[24]   Sudden heat has been defined as “sufficient provocation to excite in the mind of

       the defendant such emotions as anger, rage, sudden resentment, or terror, and

       that such excited emotions may be sufficient to obscure the reason of an

       ordinary man.” Fox, 506 N.E.2d at 1093. (emphasis added). Samelton’s

       proposed instruction, by contrast, gave a definition of sudden heat without any

       reference to sufficient provocation. The State argues that by “failing to link the

       anger, rage, sudden resentment or jealousy to any action that constitutes

       provocation, the instruction could have confused the jury into thinking that any

       time a person acts out of such emotions, there is sudden heat even though there

       may not be any provocation.” (Appellee’s Br. p. 15) (quotation marks omitted).

       We agree. This court has held that “words alone will not constitute sufficient

       provocation.” See Supernant v.State, 925 N.E.2d 1280, 184 (Ind. Ct. App. 2010),

       trans. denied. Because Samelton’s tendered instruction used an incorrect

       definition of sudden heat, the trial court did not err in refusing it.


                                               CONCLUSION

[25]   Based on the foregoing, we conclude that the trial court did not abuse its

       discretion by admitting Exhibit 101, or for refusing to instruct the jury on

       Samelton’s proposed attempted voluntary manslaughter instruction.


[26]   Affirmed.


[27]   Kirsch, J. and Pyle, J. concur




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