Robert Curry v. State of Indiana (mem. dec.) ( 2018 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any FILED
court except for the purpose of establishing Sep 26 2018, 9:09 am
the defense of res judicata, collateral CLERK
estoppel, or the law of the case. Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Michael R. Fisher Curtis T. Hill, Jr.
Marion County Public Defender Agency Attorney General of Indiana
Indianapolis, Indiana
Justin F. Roebel
Supervising Deputy Attorney
General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Robert Curry, September 26, 2018
Appellant-Defendant, Court of Appeals Case No.
18A-CR-940
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1606-MR-21318
Bradford, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-940 | September 26, 2018 Page 1 of 11
Case Summary
[1] Robert Curry was convicted of Level 2 felony voluntary manslaughter and
Class A misdemeanor carrying a handgun without a license after he shot and
killed Carl Rice, Jr. On appeal, Curry contends that the trial court abused its
discretion in admitting certain evidence and that the evidence is insufficient to
sustain his conviction. Concluding otherwise, we affirm.
Facts and Procedural History
[2] As of May 23, 2016, Cyntoria Thornburg and Rice were involved in a romantic
relationship and lived together. At some point that day, Cyntoria and Rice
became involved in a domestic altercation. Cyntoria called her mother twice
during the altercation, which lasted for more than an hour. During the second
call, Cyntoria spoke to her brother, Michael Thornburg. After receiving
Cyntoria’s calls, her mother called Thornburg and Cyntoria’s brother, Curry,
and indicated that Cyntoria was being beaten and needed help. Soon
thereafter, Curry, Mariah Echols, and Alexis Cole picked up Thornburg and the
four made their way to Cyntoria and Rice’s apartment.
[3] Upon arriving at the apartment, Curry and Thornburg looked through the
window and observed that Rice had Cyntoria pinned against a wall. After Rice
“backed off,” Cyntoria let Curry, Thornburg, Echols, and Cole into the
apartment. Tr. Vol. II, p. 97. As they entered, Curry and Thornburg instructed
Cyntoria to leave the apartment.
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[4] Once inside the apartment, Echols observed Thornburg hitting Rice and heard
Curry ask Rice “why he kept hittin on his sister.” Tr. Vol. II, p. 34. She
observed Curry pull out a gun and point it at Rice. Echols also noticed that
Cole “had her gun out too.” Tr. Vol. II, p. 36. Echols observed Cole “rack her
slide” and saw a bullet fall from the gun. Tr. Vol. II, p. 37. Feeling scared,
Echols turned to leave the apartment. As she did so, she heard a gunshot. She
ran from the apartment and was soon thereafter followed by Thornburg, Cole,
and Curry. After the four left the apartment with Cyntoria, Thornburg asked
Curry why he shot Rice. Curry responded “that s[***] had to happen” and “I
hope he’s dead.” Tr. Vol. II, pp. 233, 118.
[5] On June 2, 2016, the State charged Curry with murder, Level 1 felony
conspiracy to commit murder, and Level 5 felony carrying a handgun without a
license. The conspiracy charge was dismissed prior to trial. The lesser-included
offenses of Level 2 felony voluntary manslaughter and Level 5 felony reckless
homicide were introduced to the jury as alternatives to the murder charge at
trial.
[6] Two letters were introduced into evidence over Curry’s objection during trial.
The first letter was written by Curry while incarcerated prior to trial and sent to
his girlfriend. In this letter, he instructed his girlfriend to have Thornburg write
a second letter to the trial court using language included in the first letter.
Thornburg subsequently sent the second letter to the trial court and largely used
the language suggested by Curry.
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[7] Following trial, the jury found Curry guilty of Level 2 felony voluntary
manslaughter and Class A misdemeanor carrying a handgun without a license.
After the State dropped the Level 5 felony enhancement of the handgun charge,
the trial court sentenced Curry to an aggregate twenty-five-year sentence.
Discussion and Decision
[8] On appeal, Curry contends that the trial court abused its discretion in admitting
certain evidence and that the evidence is insufficient to sustain his conviction
for Level 2 felony voluntary manslaughter.
I. Admission of Evidence
[9] The admission or exclusion of evidence is entrusted to the
discretion of the trial court. We will reverse a trial court’s
decision only for an abuse of discretion. We will consider the
conflicting evidence most favorable to the trial court’s ruling and
any uncontested evidence favorable to the defendant. An abuse
of discretion occurs when the trial court’s decision is clearly
against the logic and effect of the facts and circumstances before
the court or it misinterprets the law. In determining whether an
error in the introduction of evidence affected an appellant’s
substantial rights, we assess the probable impact of the evidence
on the jury. Admission of evidence is harmless and is not
grounds for reversal where the evidence is merely cumulative of
other evidence admitted.
Collins v. State, 966 N.E.2d 96, 104 (Ind. Ct. App. 2012) (internal citations
omitted). The trial court’s ruling will be upheld “if it is sustainable on any legal
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theory supported by the record, even if the trial court did not use that theory.”
Rush v. State, 881 N.E.2d 46, 50 (Ind. Ct. App. 2008).
[10] Curry asserts that the trial court abused its discretion by admitting two letters
into evidence. Again, the first letter, which was written by Curry and sent to
his girlfriend, instructed his girlfriend to have Thornburg write a letter to the
trial court using language included in Curry’s letter. The second letter, which
was written by Thornburg and sent to the trial court, included most of Curry’s
suggested language. Curry argues that the trial court abused its discretion in
admitting the two letters because they were not relevant and “admission of the
letters served no purpose but to portray [him] as being manipulative and
dishonest.” Appellant’s Br. p. 11. We disagree.
A. Whether the Letters were Relevant
[11] “Any testimony tending to show an accused’s attempt to conceal implicating
evidence or to manufacture exculpatory evidence may be considered by the trier
of fact as relevant since revealing a consciousness of guilt.” Grimes v. State, 450
N.E.2d 512, 521 (Ind. 1983). Stated differently, “[w]here a person is accused of
crime, a guilty consciousness may be inferred from attempted evasion, palpable
falsehood, equivocation, or from suppression of facts, and a presumption of
guilt is said to arise from the falsification of testimony by [the] accused.”
Matthew v. State, 263 Ind. 672, 677, 337 N.E.2d 821, 824 (1975).
[12] The first letter reveals a guilty consciousness in that it reveals that Curry felt
responsible for Cole’s incarceration in connection to Rice’s death. It also
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reveals that he blamed Thornburg for mentioning Cole in his initial statement
to police. In the letter, Curry indicated that Thornburg needed “to say that
[Cole] was not involved in any plans or conspiracies and that she was only
there circumstantially. That will help us tremendously.” State’s Ex. 40. Curry
further indicated that Thornburg should state that in giving his statements to
police, he did not fully understand his rights, felt threatened and harassed by the
detectives, and was afraid he would be arrested if he failed to tell the detectives
what they wanted to hear. Curry also instructed Thornburg to state that neither
Echols nor Cole ever entered the apartment and that he was not in the
apartment at the time of the shooting. The second letter demonstrates that
Thornburg largely used Curry’s suggested language in writing to the trial court.
[13] Contrary to Curry’s suggested statements, however, Echols’s testimony
established that both she and Cole entered the apartment. It also established
that all four were in the apartment at the time of the shooting. Specifically,
Echols testified that after she, Cole, Thornburg, and Curry entered the
apartment, she observed Curry pull out a gun and point it at Rice. She further
testified that she heard a gunshot as she turned to leave the apartment and was
followed out of the apartment by Cole, Thornburg, and Curry. Echols’s
testimony was consistent with Thornburg’s initial statement to police that both
she and Cole entered the apartment and his testimony at trial that all four were
in the apartment at the time of the shooting.
[14] Given the differences between Curry’s suggested version of the facts and
Echols’s and Thornburg’s accounts of what happened, one may reasonably
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infer that the letters amounted to an attempt by Curry to falsify or manufacture
certain testimony. The letters were therefore relevant as they supported an
inference of guilt. See Matthew, 263 Ind. 672, 677, 337 N.E.2d at 824. As such,
we conclude that the trial court did not abuse its discretion in finding the letters
to be relevant, admissible evidence at trial.
B. Whether the Letters had a Different Purpose
[15] Curry also argues that the trial court abused its discretion in admitting the
letters because one could reasonably conclude that there was a different, non-
nefarious purpose for Curry writing the first letter and requesting that
Thornburg write the second. Specifically, he claims that because he was acting
under hybrid representation, i.e., having counsel while also making filings on
his own behalf, the trial court should have recognized that his intent was
nothing more than “to lock-down [Thornburg’s] testimony as to the truth of
what happened during the incident” and “[t]his was nothing more than what a
defense counsel would do on behalf of a client, and nothing more than a
prosecutor would do in preparation for trial.” Appellant’s Br. p. 11. Even
assuming Curry was trying to “lock down” the evidence, given the facts and
circumstances before the trial court, we will not disturb the trial court’s different
reasonable inference. See McElfresh v. State, 51 N.E.3d 103, 111 (Ind. 2016)
(providing that although one could potentially infer varying intent from a letter
written by the defendant, appellate courts will not disturb the trier-of-fact’s
credibility determinations relating to intent).
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II. Sufficiency of the Evidence
[16] When reviewing the sufficiency of the evidence to support a
conviction, appellate courts must consider only the probative
evidence and reasonable inferences supporting the verdict. It is
the fact-finder’s role, not that of appellate courts, to assess
witness credibility and weigh the evidence to determine whether
it is sufficient to support a conviction. To preserve this structure,
when appellate courts are confronted with conflicting evidence,
they must consider it most favorably to the trial court’s ruling.
Appellate courts affirm the conviction unless no reasonable fact-
finder could find the elements of the crime proven beyond a
reasonable doubt. It is therefore not necessary that the evidence
overcome every reasonable hypothesis of innocence. The
evidence is sufficient if an inference may reasonably be drawn
from it to support the verdict.
Drane v. State, 867 N.E.2d 144, 146–47 (Ind. 2007) (citations, emphasis, and
quotations omitted). “In essence, we assess only whether the verdict could be
reached based on reasonable inferences that may be drawn from the evidence
presented.” Baker v. State, 968 N.E.2d 227, 229 (Ind. 2012) (emphasis in
original).
[17] In order to prove that Curry committed voluntary manslaughter, the State was
required to prove that he knowingly or intentionally killed another human
being while acting under sudden heat. Ind. Code § 35-42-1-3(a)(1). “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).
“Sudden heat occurs when a defendant is provoked by anger, rage, resentment,
or terror, to a degree sufficient to obscure the reason of an ordinary person,
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prevent deliberation and premeditation, and render the defendant incapable of
cool reflection.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005).
A. Whether the Evidence is Sufficient to Prove Curry Acted
Knowingly or Intentionally
[18] Curry challenges the sufficiency of the evidence to prove that he acted
knowingly or intentionally when he killed Rice. “A person engages in conduct
‘knowingly’ if, when he engages in the conduct, he is aware of a high
probability that he is doing so.” Ind. Code § 35-41-2-2 (b). “A person engages
in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious
objective to do so.” Ind. Code § 35-41-2-2(a).
[19] Curry claims that the evidence establishes that he, at most, acted negligently as
the “evidence most favorable to the verdict was that there was a struggle for the
gun and the gun discharged killing Rice.” Appellant’s Br. p. 18. Review of the
record, however, reveals otherwise. While both Curry and Thornburg indicated
that the gun discharged during a struggle between Curry and Rice, Echols
testified that she did not see Curry and Rice struggling over the gun. The jury,
acting as the trier-of-fact, was free to credit Echols’s testimony over self-serving
statements made and testimony given by Curry and Thornburg, respectively.
See Kilpatrick v. State, 746 N.E.2d 52, 61 (Ind. 2001) (“It is for the trier of fact to
resolve conflicts in the evidence and to decide which witnesses to believe or
disbelieve.”); In re J.L.T., 712 N.E.2d 7, 11 (Ind. Ct. App. 1999) (“[I]t is
precisely within the domain of the trier of fact to sift through conflicting
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accounts of events. Not only must the fact-finder determine whom to believe,
but also what portions of conflicting testimony to believe.”).
[20] In addition, Curry made statements immediately following the shooting from
which the jury could infer that he acted intentionally. The record reveals that
after they left Rice’s residence, Thornburg asked Curry why he shot Rice.
Curry responded “that s[***] had to happen” and “I hope he’s dead.” Tr. Vol.
II, pp. 233, 118.
[21] The evidence is sufficient to support the inference that Curry acted knowingly
or intentionally when he shot Rice. Curry’s claim to the contrary effectively
amounts to an invitation to reweigh the evidence, which we will not do. See
Stewart v. State, 768 N.E.2d 433, 435 (Ind. 2002) (providing that upon review,
appellate courts do not reweigh the evidence or assess the credibility of the
witnesses).
B. Whether the Evidence is Sufficient to Prove Curry Acted
with Sudden Heat
[22] Curry also challenges the sufficiency of the evidence to prove that he acted with
sudden heat. The trial court correctly instructed the jury that sudden heat “is a
mitigating factor that reduces [what] otherwise would be murder to voluntary
manslaughter.” Appellant’s App. Vol. III, p. 35. It further instructed the jury
that sudden heat
means a mental state which results from provocation sufficient to
excite in the mind of the defendant such emotions as anger, rage,
sudden resentment, jealousy, or terror sufficient to obscure the
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reason of an ordinary person, and as such prevents deliberation
and premeditation, excludes malice, and renders the defendant
incapable of cool reflection prior to acting.
Appellant’s App. Vol. III, p. 38.
[23] The jury heard evidence indicating that Curry arrived at the apartment his sister
shared with Rice armed with the knowledge that Rice was physically abusing
his sister and had been doing so for over an hour. Curry also knew that Rice
had previously physically abused his sister. In addition, Curry observed the
abuse when he saw Rice physically restraining his sister by holding her against
a wall. When Curry asked Rice why he “kept hittin on his sister,” Rice
indicated that he “needed to teach her a lesson.” Tr. Vol. II, p. 34. We
conclude that these facts are such that would enable the jury to reach the
reasonable inference that in shooting Rice, Curry reacted with anger and rage
sufficient to render him incapable of cool reflection. Given that we assess only
whether the verdict could have been reached based on reasonable inferences that
may be drawn from the evidence presented, we conclude that the evidence is
sufficient to prove that Curry acted with sudden heat. Baker, 968 N.E.2d at 229.
Curry’s claim to the contrary again effectively amounts to an invitation to
reweigh the evidence, which we will not do. See Stewart, 768 N.E.2d at 435.
[24] The judgment of the trial court is affirmed.
Bailey, J., and Mathias, J., concur.
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