Lavoyd D. Shepherd v. State of Indiana ( 2020 )

FILED
Sep 30 2020, 10:09 am
CLERK
Indiana Supreme Court
Court of Appeals
and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Scott L. King Curtis T. Hill, Jr.
Lakeisha C. Murdaugh Attorney General of Indiana
Merrillville, Indiana Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Lavoyd D. Shepherd, September 30, 2020
Appellant-Defendant, Court of Appeals Case No.
20A-CR-179
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Clarence D.
Appellee-Plaintiff. Murray, Judge
Trial Court Cause No.
45G02-1702-MR-3
Riley, Judge.
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STATEMENT OF THE CASE
[1] Appellant-Defendant, Lavoyd Shepherd (Shepherd), appeals his conviction and
sentence following the jury’s guilty verdicts for voluntary manslaughter, a Level
2 felony, Ind. Code § 35-42-1-3; aggravated battery, a Level 1 felony, I.C. § 35-
42-2-1.5; battery resulting in death to a person less than fourteen years old, a
Level 2 felony, I.C. §§ 35-42-2-1(c)(1), -(k)(1); and battery resulting in bodily
injury to a person less than fourteen years old, a Level 5 felony, I.C. §§ 35-42-2-
1(c)(1), -(g)(5)(B).
[2] We affirm.
ISSUES
[3] Shepherd presents the court with six issues, which we restate as the following:
(1) Whether the State proved beyond a reasonable doubt that it
was he who injured A.F.;
(2) Whether the trial court abused its discretion when it excluded
the video-recorded police interview of a witness who testified
at trial;
(3) Whether the trial court committed reversible error by
instructing the jury on voluntary manslaughter;
(4) Whether the trial court abused its discretion by admitting
photographic images seized from Shepherd’s cell phone
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pursuant to a search warrant after the return of the warrant
was delayed;
(5) Whether his sentence for aggravated battery violates
Indiana’s Proportionality Clause; and
(6) Whether his sentence is inappropriate given the nature of the
aggravated battery offense and his character.
FACTS AND PROCEDURAL HISTORY
[4] Andre Ferguson (Ferguson) and Lena Harper (Harper) were formerly in a
romantic relationship, and their daughter, A.F., was born on May 20, 2015.
Harper subsequently began a relationship with Shepherd, and Ferguson
exercised regular parenting-time with A.F. On February 20, 2017, Shepherd
drove with Harper and Shepherd’s ten-year-old son, J.S., to a gas station in
South Holland, Illinois, to retrieve physical custody of A.F., who had spent the
three-day holiday weekend with Ferguson and his family. Ferguson had given
A.F. her favorite snack, pretzel sticks, prior to the drop-off at 9:30 p.m. and
allowed her to take the bag of pretzels with her. A.F. continued to eat pretzels
in Shepherd’s SUV on the way back to his apartment in Merrillville, Indiana,
where Shepherd lived with Harper, A.F., and J.S. They arrived at Shepherd’s
apartment at approximately 10:00 p.m. Shepherd consumed his favorite
alcoholic beverage, tequila, while the rest of the household’s occupants went to
bed.
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[5] A.F. and J.S. shared a bedroom in Shepherd’s apartment. In the early morning
hours of February 21, 2017, A.F. cried. Between 4:00 a.m. and 5:00 a.m., J.S.
went to tell Shepherd, who was sleeping on the couch in the living room, that
A.F. was crying. J.S. then went back to bed. Shepherd later awakened J.S. and
told him that A.F. was not breathing. Shepherd attempted to perform CPR on
A.F. in the living room, which awakened Harper. Shepherd and Harper drove
A.F. to the hospital, and J.S. took the bus to school as he normally would.
A.F. had no heartbeat and was essentially dead upon her arrival at the hospital.
Despite the extensive efforts made to revive her, A.F. was pronounced dead at
the hospital at 6:03 a.m. Shepherd subsequently left Harper at the hospital and
was intercepted by police at J.S.’s school. While at school that morning, J.S.
had written a short essay about the holiday weekend in which he stated that it
had been good until that morning because that was when his little sister had
died.
[6] An autopsy performed by Dr. Zhuo Wang (Dr. Wang) on February 22, 2017,
revealed that A.F. had died of multiple blunt force traumas to her head and
abdomen. The force of the trauma to A.F.’s head had caused the fibrous bands
holding her skull together to separate and had injured her brain. The wounds to
A.F.’s abdomen had caused massive internal bleeding. Either the injuries to
A.F.’s head or to her abdomen would have been fatal.
[7] On February 21, 2017, investigators procured a search warrant for Shepherd’s
apartment. Photographs of A.F.’s and J.S.’s bedroom revealed a large tear in
the netting of A.F.’s pack-and-play which served as her bed. Shepherd’s cell
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phone was collected from the living room couch. Shepherd provided
statements to an investigator with the coroner’s office, a Child Protective
Services (CPS) assessor, and to the police. Although some of the details of his
accounts varied among these statements, Shepherd consistently reported that he
was the only one awake in the apartment. Although he had initially reported to
Harper that he had stayed awake all night, according to Shepherd’s later
statements, he had stayed awake until around 4:00 a.m., and J.S. woke him
around 5:00 a.m. to tell him that A.F. was making strange noises. Shepherd
reported that he had found A.F. unresponsive and had shaken her in an attempt
to revive her before performing CPR. Shepherd related in one of his police
interviews that he felt that Harper told Ferguson too much about her
relationship with Shepherd and that Harper had been on the phone with
Ferguson for an hour on February 20, 2017. Because of the nature of A.F.’s
injuries, investigators sought Harper’s and Shepherd’s consent to measure and
photograph their hands. Harper immediately consented, but Shepherd refused.
Shepherd’s hands were later photographed and measured pursuant to a court
order.
[8] On February 21, 2017, and again on February 23, 2017, J.S. was interviewed by
police and provided statements which were video recorded. 1 J.S. appeared to
be calm and relaxed as the interviewer built rapport with him by asking him
questions unrelated to the investigation. When the subject of the interview
1
The video recording of J.S.’s second interview is not part of the record on appeal.
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turned to the events surrounding A.F.’s death, J.S. became more physically
animated, shaking his leg and changing positions in his seat. At various times
during the interview, J.S. reported that he had awakened Shepherd at 10:22
p.m., 5:00 a.m., and 5:22 a.m. J.S. claimed to have performed CPR on A.F.
but later in the interview admitted that he had not. Contrary to what he had
written in his school essay, during the interview J.S. stated that he did not know
what had happened to A.F. but that he wanted to assume that she was alright.
[9] Based on Shepherd’s statements that everyone else in the apartment had been
asleep, the amount of force required to inflict A.F.’s injuries, and the fact that
J.S. was five feet tall and weighed seventy pounds at the time, investigators
ruled out Harper and J.S. as suspects in A.F.’s death. On February 24, 2017,
the State filed an Information, charging Shepherd with murder, aggravated
battery, battery resulting in death to a person less than fourteen years old, and
battery resulting in bodily injury to a person less than fourteen years old.
Investigators sought and received a search warrant to procure the contents of
Shepherd’s cell phone. The lead investigator, Detective James Bogner
(Detective Bogner) of the Merrillville Police Department, transported
Shepherd’s cell phone to the Indiana State Police post on April 4, 2017, where
the search warrant was executed by Detective Alva Whited (Detective Whited).
Detective Whited extracted seven images from Shepherd’s cell phone showing
what appeared to be an adult male’s hand positioning A.F.’s mouth so that a
severe tongue injury was visible from different angles. Metadata extracted with
the images indicated that they were taken from 3:42:02 a.m. to 3:43:54 a.m. on
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February 21, 2017, and that they were taken with Shepherd’s cell phone
camera, as opposed to being taken and sent to him by someone else. In his
various statements to investigators, Shepherd had never mentioned discovering
A.F.’s tongue injury or photographing it. On April 4, 2017, after Detective
Whited finished his forensic examination, Detective Bogner retrieved
Shepherd’s cell phone and completed the return on the search warrant.
However, the search warrant return was not immediately filed.
[10] On May 9, 2018, Shepherd filed a motion to suppress arguing that the seven
images extracted from his cell phone should be excluded from the evidence
because the State had failed to file the return on the search warrant. On August
16, 2018, and September 13, 2018, the trial court held hearings on Shepherd’s
motion to suppress. The State filed the search warrant return the day of the first
hearing. In the return, Detective Bogner swore under penalties of perjury that
he had taken Shepherd’s cell phone to Detective Whited for examination on
April 4, 2017; the cell phone was searched, and data was gathered; and that an
inventory of the property taken under the search warrant was “[a]ll data
collected from the phone via forensic means[.]” (Suppression Exh. Vol. p. 7).
On November 16, 2018, the trial court denied Shepherd’s motion to suppress.
[11] On August 12, 2019, the trial court convened Shepherd’s five-day jury trial.
Shepherd’s theory of the case was that A.F. had sustained her fatal injuries
either while she had been in the care of Ferguson and his family or at the hands
of J.S. Ferguson and others who had cared for A.F. that weekend all testified
that she had not had any falls or injuries and that she appeared to be normal
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and healthy. J.S. testified and denied ever having hit or kicked A.F. J.S.
confirmed that the netting on A.F.’s pack-and-play had not been torn before
that night. J.S. was cross-examined by Shepherd regarding inconsistencies in
his police statements and his trial testimony. After J.S. testified as part of the
State’s case-in-chief and had also been called by Shepherd as part of his own
case, Shepherd sought to have the video recordings of J.S.’s police interviews
admitted to “complete impeachment,” to allow the jury to observe J.S.’s height
and weight at the time, and to allow the jury to observe J.S.’s change in
demeanor during his police interviews. (Transcript Vol. III, p. 144). The trial
court ultimately excluded the video of J.S.’s interview, ruling that, due to J.S.’s
acknowledgement of the inconsistencies in his statements and other testimony,
the video recordings were cumulative. Detective Bogner testified and related to
the jury that Harper had reported to him that Shepherd had asked her, “What
are we going to say?” and that investigators were interested in knowing why he
had asked her that. (Tr. Vol. III, p. 159).
[12] Dr. Wang testified that a great amount of force had been required to inflict
A.F.’s injuries and that she had sustained her head and abdominal injuries close
in time because either set of injuries would have been fatal. Dr. Wang had
collected tissues from A.F.’s head and abdominal injuries which contained fresh
red blood cells but no white blood cells. The presence of only red blood cells in
the tissue samples indicated to Dr. Wang that A.F. had died within
approximately two hours of sustaining her injuries. Dr. Wang had also noted a
lack of blood in A.F.’s diaper, from which he concluded that she had died
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quickly from her injuries, as there had not been adequate time for the blood in
her abdominal cavity to pass out of her body. It was Dr. Wang’s opinion that
it was highly unlikely that someone with A.F.’s injuries would have been able
to consume food.
[13] During the final instruction conference, the trial court indicated that it would
give the jury instructions on voluntary manslaughter and sudden heat. The
State objected to the giving of these instructions, arguing that there was no
evidence to support them. Shepherd’s counsel argued in support of giving the
instructions that “[y]ou could have an inference from the lateness of the hour,
the crying baby, disturbance of the sleep, that would be the evidence . . . .” (Tr.
Vol. IV, p. 33). The trial court noted that there had been evidence presented
that Shepherd was upset about Harper and Ferguson talking earlier that day.
The trial court ruled that it would give the voluntary manslaughter instructions,
and Shepherd did not object. The jury found Shepherd guilty of voluntary
manslaughter and all the battery charges. At the State’s request, the trial court
immediately entered judgment of conviction for voluntary manslaughter.
[14] On August 19, 2019, the trial court entered judgment of conviction for Level 1
felony aggravated battery and took entry of judgment on the other verdicts
under advisement. On September 11, 2019, Shepherd’s presentence
investigation report was filed and revealed the following. Shepherd had no
juvenile record or adult criminal convictions, but he had a pending Level 6
felony domestic battery charge at the time of A.F.’s death. Shepherd began
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consuming alcohol and marijuana at the age of thirteen and has consumed
marijuana daily since he was eighteen years old.
[15] On December 4, 2019, the trial court held Shepherd’s sentencing hearing.
Based on double jeopardy concerns, the trial court vacated the voluntary
manslaughter conviction and “merge[d]” the other batteries into Shepherd’s
Level 1 felony aggravated battery, leaving only that conviction for sentencing.
(Tr. Vol. V, p. 17). The trial court found as aggravating circumstances that the
injuries Shepherd inflicted on A.F. were greater than necessary to accomplish
the offense; Shepherd was on pretrial release in his domestic violence case when
he committed the instant offense; the nature and circumstances of the offense
were heinous, as Shepherd brutally beat A.F. as she slept; and that Shepherd
was in a position of trust with A.F. As mitigating circumstances, the trial court
found that Shepherd had no history of true-findings or criminal convictions and
that his imprisonment would result in undue hardship to his other dependents.
The trial court found that the aggravating circumstances outweighed the
mitigating ones and sentenced Shepherd to thirty-five years, with five years
suspended to probation.
[16] Shepherd now appeals. Additional facts will be provided as necessary.
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DISCUSSION AND DECISION
I. Sufficiency of the Evidence
A. Standard of Review
[17] Shepherd challenges the evidence supporting his conviction. More specifically,
he contends that the State failed to prove beyond a reasonable doubt that it was
he who inflicted A.F.’s injuries. The standard of review of such claims is well-
settled: When we review the sufficiency of the evidence to support a
conviction, we consider only the probative evidence and reasonable inferences
supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not
our role as an appellate court to assess witness credibility or to weigh the
evidence. Id. We will affirm the conviction unless no reasonable fact-finder
could find the elements of the crime proven beyond a reasonable doubt. Id.
B. Identity
[18] In order to prove that a particular defendant committed an offense, it has long
been held that “the proof of a mere opportunity to commit the crime, without
more, is not sufficient to sustain a conviction.” Durham v. State, 238 N.E.2d 9,
13 (Ind. 1968) (reversing defendant’s assault and battery with intent to kill
conviction where, apart from evidence she had the opportunity to strike her
husband, there was “no other evidence in the entire record which even tends to
establish that appellant struck such a blow[.]”). However, the identity of the
perpetrator of an offense may be established solely by circumstantial evidence.
Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990). “The key question . . .
is whether from all the evidence the jury could have drawn a reasonable
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inference that appellant was the perpetrator of the crime.” Hovis v. State, 455
N.E.2d 577, 579 (Ind. 1983).
[19] Shepherd argues that “[w]hen the evidence in this case is considered as a whole,
the only reasonable inference that a trier of fact could draw is that while it was
possible that [Shepherd] committed the crimes,” the State only established that
he had the opportunity to commit the offenses. (Appellant’s Br. p. 24)
(emphasis in original). We disagree. A.F. had been in the care of Ferguson
and his family over the three-day weekend, but no one observed any severe
injuries to her when custody was exchanged back to Harper at around 9:30 p.m.
on February 20, 2017. A.F. ate pretzels on the way back to Shepherd’s
apartment. Dr. Wang testified that it was highly unlikely that anyone with
A.F.’s injuries would have been able to eat and that A.F. had died within
approximately two hours of sustaining her injuries. A.F. awakened J.S. with
crying between 4:00 a.m. and 5:00 a.m., establishing that she was still alive
during that timeframe. Given that A.F. was able to eat after leaving Ferguson’s
custody and continued to live approximately six hours thereafter, the jury could
reasonably infer that A.F. did not sustain her injuries while with Ferguson and
his family over the long weekend.
[20] Other evidence allowed the jury to infer that it was Shepherd, as opposed to J.S.
or Harper, who inflicted A.F.’s fatal injuries. According to Shepherd’s own
statements, Harper was asleep until she was awakened by the commotion of
Shepherd attempting to revive A.F. J.S. denied ever having hit or kicked A.F.
J.S. testified that he woke Shepherd because A.F. was making noise, indicating
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A.F. was still alive at that point. Shepherd later woke J.S. to tell him that A.F.
was no longer breathing, all of which supports an inference that A.F. became
unresponsive while Shepherd was the only one awake and out of bed. In
addition, Shepherd used his cell phone just before 4:00 a.m. to capture images
of a serious injury to A.F.’s tongue, but he did not mention that he had
discovered the injury or photographed it when speaking to the deputy coroner,
the CPS assessor, or in his interviews with police, which supported an inference
that Shepherd attempted to conceal his guilt. Shepherd also asked Harper what
they were going to say about A.F., from which the jury could reasonably infer
that Shepherd was also attempting to conceal his guilt by fabricating a version
of events which did not include him inflicting serious injury on A.F. The
totality of this evidence showed much more than Shepherd having a mere
opportunity to injure A.F.; rather, it supported the jury’s reasonable conclusion
that it was, indeed, Shepherd who inflicted A.F.’s fatal injuries.
[21] Despite the evidence supporting the jury’s verdict, Shepherd directs our
attention to portions of Dr. Wang’s testimony which he argues showed that
A.F.’s injuries could have been inflicted up to forty-eight hours before her
death, casting a reasonable doubt on his identity as the perpetrator. Shepherd
also points to Dr. Wang’s testimony that the contents of A.F.’s stomach
showed that she had died within two hours of having last eaten. However,
Shepherd’s argument ignores Dr. Wang’s testimony that A.F. incurred all her
injuries close in time and that she died within approximately two hours of
having sustained those injuries, a conclusion he based in part on the lack of
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white blood cells in her tissue samples. Shepherd’s argument based on Dr.
Wang’s other testimony is unpersuasive in that it requires us to consider
evidence that does not support the jury’s verdict, in contravention of our
standard of review. Drane, 867 N.E.2d at 146.
[22] Shepherd also directs our attention to evidence that A.F. vomited during the car
ride home which he contends could have could been a symptom of injury, his
report that A.F. was fine when he claimed to have checked on her around 12:30
a.m., what he implies were suspicious inconsistencies in J.S.’s reports of the
events, the fact that A.F. appeared to still be alive in the images of her that were
taken just before 4:00 a.m., and other evidence he contends supported a
reasonable inference that it was not he who injured A.F. However, all these
facts and arguments were presented to the jury, but the jury chose to believe the
other evidence supporting Shepherd’s guilt. As a court of review, we are
obligated to leave the jury’s verdict intact because there was sufficient evidence
of probative value to support it. See id.
II. Exclusion of J.S.’s Video-Recorded Police Interviews
A. Standard of Review
[23] Shepherd sought to have J.S.’s video-recorded police interviews admitted
during the State’s case-in-chief and during the presentation of his own case.
Shepherd contends that the trial court violated his rights to confrontation and
cross-examination by excluding this evidence. A trial court has inherent
discretionary power regarding the admission of evidence, and we review its
decisions only for an abuse of that discretion. Vasquez v. State, 868 N.E.2d 473,
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476 (Ind. 2007). To reverse a trial court’s decision to exclude evidence, there
must be error by the court that affects the defendant’s substantial rights. Id.
B. Right to Cross-Examine
[24] Shepherd argues that the trial court impermissibly limited his right to cross-
examine and impeach J.S. by excluding his police interviews. Although he
offered multiple arguments for admissibility below, to us he only argues that he
had the right to present “relevant evidence of J.S.’s demeanor in his videotaped
interviews to assist [the jury] in assessing J.S.’s credibility in his denial of
physical contact with A.F., contact that may have resulted in the fatal injuries
that led to her death.” (Appellant’s Br. p. 29). In addressing this claim, we
begin by observing that a criminal defendant’s right to confront and cross-
examine witnesses is guaranteed by the Sixth Amendment and Indiana’s
Constitution, and it is “‘one of the fundamental rights of our criminal justice
system.’” Hubbell v. State, 754 N.E.2d 884, 891 (Ind. 2001) (quoting Pigg v.
State, 603 N.E.2d 154, 155 (Ind. 1992)). However, it is also well-established
that the right of a criminal defendant to cross-examine witnesses against him is
not absolute and is subject to reasonable limitations at the discretion of the trial
court. Logan v. State, 729 N.E.2d 125, 134 (Ind. 2000).
[25] Indiana Evidence Rule 613(a) provides that a witness may be examined about a
prior statement. However, a prior inconsistent statement is not admissible
under Rule 613 if the witness has already acknowledged the prior inconsistent
statement on cross-examination because impeachment is complete after such an
acknowledgment. Dixon v. State, 967 N.E.2d 1090, 1092 (Ind. Ct. App. 2012);
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see also D’Paffo v. State, 749 N.E.2d 1235, 1240 (Ind. Ct. App. 2001) (holding
that exclusion of evidence of molestation victims’ prior inconsistent statements
was within the trial court’s discretion where victims had already acknowledged
the inconsistencies on cross-examination), vacated in part on other grounds; Roberts
v. State, 712 N.E.2d 23, 32 (Ind. Ct. App. 1999) (finding no abuse of the trial
court’s discretion in excluding rape victim’s videotaped interview denying she
had had intercourse with Roberts where she admitted making those statements
on cross-examination), trans. denied.
[26] Here, Shepherd confronted J.S. on cross and direct examination with J.S.’s
prior statements about the differing times J.S. gave for waking Shepherd, what
J.S. knew about A.F.’s condition when he wrote the short school essay, and his
initial false claim that he had performed CPR on A.F. J.S. acknowledged
having made inconsistent statements on these and other topics and offered
explanations for why he had done so. Therefore, impeachment was complete,
and the trial court did not abuse its discretion in excluding J.S.’s videotaped
interview for impeachment purposes under the Trial Rules. See id.
[27] Our supreme court has observed that, at times, the evidentiary rules must yield
to a defendant’s right to cross-examine the witnesses against him. State v.
Walton, 715 N.E.2d 824, 827 (Ind. 1999). However, it is equally true that the
Confrontation Clause only guarantees an opportunity for effective cross-
examination; it does not guarantee cross-examination in whatever manner or
extent desired by a defendant. Fowler v. State, 829 N.E.2d 459, 469 (Ind. 2005).
We cannot say that Shepherd was denied his right to cross-examine J.S. when
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the trial court prevented him from showing the jury J.S.’s demeanor through
publication of the video recordings of the interviews. First and foremost, J.S.
testified at trial and was subject to extensive cross-examination and direct
questioning by Shepherd about his prior statements and other matters, so the
jury had a first-hand opportunity to assess J.S.’s credibility as a witness in open
court. Shepherd explicitly questioned J.S. about why his demeanor had
changed between the rapport-building and substantive portions of the
interviews. J.S. explained that he moves his body when he is nervous and that
he was nervous when he spoke to the police. In addition, when Shepherd
called J.S. as a witness during his own case, the trial court allowed Shepherd to
play a small portion of J.S.’s first interview with police in an effort to refresh his
memory on a matter, so the jury did, in fact, have a short opportunity to view
his demeanor during that interview. We would also note that, because this
short portion of J.S.’s first interview was played before the jury, it also had an
opportunity to assess J.S.’s physical size at the time of the events, another basis
for admission Shepherd argued to the trial court.
[28] Shepherd also alludes to “due process” in this section of his argument, but he
does not develop any independent argument on that claim. (Appellant’s Br. pp.
27, 29). Indiana Appellate Rule (A)(8)(a) provides that appellate arguments
must be supported by citation to legal authority and cogent reasoning. Failure
to do so results in waiver of an issue for our consideration. Griffith v. State, 59
N.E.3d 947, 958 n.5 (Ind. 2016). We conclude that Shepherd has waived his
due process argument and do not address it. Because the video recordings of
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J.S.’s police interviews were inadmissible under the Trial Rules and Shepherd
had an opportunity to effectively cross-examine J.S., we conclude that his right
to confrontation and cross-examination was not infringed and the trial court did
not abuse its discretion in excluding the proffered evidence.
III. Voluntary Manslaughter Instruction
[29] Shepherd next claims that the trial court “committed fundamental error when it
gave the voluntary manslaughter instruction in the absence of sudden heat.”
(Appellant’s Br. p. 30). However, although the jury found Shepherd guilty of
voluntary manslaughter, prior to rendering sentence, the trial court vacated that
conviction. “Mootness arises when the primary issue within the case has been
ended or settled or in some manner disposed of, so as to render it unnecessary
to decide the question involved.” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct.
App. 2017) (quotation omitted), trans. denied. Put another way, when a court is
not able to render effective relief to a party, the case is deemed moot and subject
to dismissal. Id. Here, because the trial court vacated Shepherd’s voluntary
manslaughter conviction, there is nothing upon which we may render relief.
We conclude that Shepherd’s claim based upon the trial court’s giving of the
voluntary manslaughter instruction is moot, and we decline to address it.
IV. Admission of Images from Shepherd’s Cell Phone
[30] Shepherd contends that the trial court abused its discretion in admitting the
seven photographs of A.F.’s tongue injury procured from the execution of the
search warrant for his cell phone because the return of the search warrant was
defective. We review a trial court’s decision to admit photographic evidence for
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an abuse of discretion. Ward v. State, 903 N.E.2d 946, 958 (Ind. 2009). An
abuse of discretion occurs when the trial court’s evidentiary ruling is clearly
against the logic and effect of the facts and circumstances before it. Glasgow v.
State, 99 N.E.3d 251, 256 (Ind. Ct. App. 2018).
[31] Indiana Code section 35-33-5-4(1) requires the officer who executes a search
warrant to make a return of the warrant indicating the date and time the
warrant was served and listing the items seized. The statute does not require
that the return be filed within any specific period of time. Id.; Webster v. State,
579 N.E.2d 667, 670 (Ind. Ct. App. 1991). We will not find reversible error in
the admission of evidence where the manner of the return was defective unless
the defendant has demonstrated that he was prejudiced. See Owens v. State, 659
N.E.2d 466, 478 (Ind. 1995) (upholding the admission of evidence where no
return was ever filed because Owens had not shown that he was prejudiced
from the failure to file).
[32] Here, Detective Bogner filled out the return of the search warrant on Shepherd’s
cell phone on April 4, 2017, the same day that the warrant was executed on the
cell phone by Detective Whited. The return on the search warrant was not filed
with the trial court until August 16, 2018, the day of the first hearing on
Shepherd’s motion to suppress. The return indicates that the search warrant
was “received” on April 4, 2017, at 2:40 p.m., although Detective Bogner
indicated at the hearings on the motion to suppress that was the date and time
that the search warrant was executed. (Supp. Exh. Vol. p. 7). The return
provides that data was seized pursuant to the search warrant.
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[33] Shepherd argues that the return was defective because it was not returned to the
judicial officer who issued the search warrant, it was not filed until the day of
the first suppression hearing, the return does not specify when the warrant was
executed, and Detective Bogner signed the return electronically. Apart from
the failure to accurately word the date and time of the execution of the warrant,
these allegations do not present true defects in the return, as the statute provides
that the return may be filed with the “court or judge” who issued the warrant,
the statute does not specify a time limit for the return of the warrant, and
nothing in the statute precludes the use of an electronic signature. See I.C. § 35-
33-5-4.
[34] More importantly, Shepherd has failed to demonstrate that he was prejudiced
by any defects in the warrant itself or by the State’s failure to file it until the
suppression hearing. Shepherd claims that he was prejudiced because the
return failed to articulate how the data was extracted, copied, or stored upon
execution of the warrant. This is not a valid claim of prejudice because the
search warrant return statute does not require that information to be included in
the return. See id. Shepherd also claims that the failure to file the return
constituted a “failure to provide sufficient information in [a] timely fashion so
as to permit the defense to adequately examine and challenge the evidence
obtained via such a faulty process.” (Appellant’s Br. p. 37). However, on
August 16, 2018, the day of the first suppression hearing and the filing of the
return, the State filed a supplemental discovery response and served Shepherd
with a copy of Detective Whited’s report detailing the methods used to extract
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the data and what was extracted. Shepherd’s trial did not commence until
August 12, 2019. Shepherd did not object at trial that the substance or manner
of the search warrant’s return prevented him from adequately researching and
challenging the cell phone evidence between the suppression hearing and his
trial. Thus, Shepherd has failed to persuade us that he was prejudiced by the
filing of the return, and we find no abuse of the trial court’s discretion in
admitting the images procured pursuant to the search warrant issued for the
contents of Shepherd’s cell phone. See Owens, 659 N.E.2d at 478.
IV. Proportionality of Sentence
[35] Shepherd next argues that the trial court’s decision to vacate his voluntary
manslaughter conviction and sentence him only for Level 1 felony aggravated
battery violated the Proportionality Clause of the Indiana Constitution which
provides that “[a]ll penalties shall be proportioned to the nature of the offense.”
Ind. Const. art. I, § 16. The Legislature has the exclusive authority to define
crimes and establish penalties. Brantley v. State, 91 N.E.3d 566, 571 (Ind. 2018).
In light of this exclusive authority, when addressing challenges based on the
Proportionality Clause, separation-of-powers principles mandates that we
afford substantial deference to the sanction chosen by the Legislature. Mann v.
State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008). Therefore, “[w]e will not
disturb the legislative determination of the appropriate penalty for criminal
behavior except upon a showing of clear constitutional infirmity.” State v. Moss-
Dwyer, 686 N.E.2d 109, 111-12 (Ind. 1997). The penalty for an offense set by
the Legislature is not unconstitutional under the Proportionality Clause unless
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“it is so severe and entirely out of proportion to the gravity of the offense
committed as to shock public sentiment and violate the judgment of reasonable
people.” Murrell v. State, 960 N.E.2d 854, 858 (Ind. Ct. App. 2012).
[36] Shepherd’s argument is based upon a comparison of the voluntary
manslaughter and aggravated battery statutes, so it is necessary to set out the
elements of those offenses and their penalties. A person commits Level 2 felony
voluntary manslaughter when he intentionally or knowingly kills another
human being while acting under sudden heat. I.C. § 35-42-1-3(a). Sudden heat
is a mitigating factor that reduces an offense that otherwise would be murder.
I.C. § 35-42-1-3(b). ‘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). The essence of the offense of voluntary manslaughter is that an impetus
to kill suddenly overwhelms a defendant. Stevens v. State, 691 N.E.2d 412, 427
(Ind. 1997). As for Level 1 felony aggravated battery, it is committed when a
person intentionally or knowingly inflicts injury on a person that creates a
substantial risk of death and results in the death of a child less than fourteen
years of age. I.C. § 35-42-2-1.5. The maximum sentence for a Level 2 felony is
thirty years, while the maximum sentence for a Level 1 felony is forty years.
Compare I.C. § 35-50-2-4.5 with I.C. § 35-50-2-4(b).
[37] Shepherd argues that his thirty-five-year sentence for aggravated battery results
in an anomaly in that “the same acts supporting a conviction for a knowing or
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intentional killing are more substantially punished as a knowing or intentional
act of inflicting injury, [i.e.] without the intent to kill.” (Appellant’s Br. p. 39).
However, the presence of sudden heat mitigates the offense of murder precisely
because it interferes with knowing or intentional action. See Dearman, 743
N.E.2d at 760. Our Legislature could have rationally chosen to impose a more
severe punishment where knowing and intentional action results in death (Level
1 felony aggravated battery) than where death has resulted when action was not
fully knowing and intentional because of sudden heat (voluntary manslaughter).
Accordingly, we find no violation of Indiana’s Proportionality Clause.
[38] In this section of his argument, Shepherd also argues that his sentencing for
aggravated battery violated his due process rights because he was deprived of
the benefit of the jury’s finding that he had acted in sudden heat. Shepherd
cites no legal authority for his proposition, and we are aware of none. The trial
court vacated Shepherd’s voluntary manslaughter conviction due to double
jeopardy concerns. Shepherd acknowledges that his dual convictions for
voluntary manslaughter and aggravated battery could not stand. When faced
with dual convictions that offend double jeopardy principles, our supreme court
has remedied that violation by vacating the offense that carried the lesser
criminal penalty. See Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000) (vacating
Jenkins’ robbery conviction instead of his felony murder conviction); see also
Wadle v. State, — N.E.3d —, 2020 WL 4782698, *18 (Ind. Aug. 18, 2020)
(vacating Wadle’s Level 5 felony OWI-SBI conviction while leaving in place his
Level 3 felony conviction for leaving the scene). Therefore, we find no error on
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the part of the trial court in vacating Shepherd’s Level 2 felony voluntary
manslaughter conviction.
V. Inappropriateness of Sentence
[39] Shepherd also requests that we review the appropriateness of his thirty-five-year
sentence. “Even when a trial court imposes a sentence within its discretion, the
Indiana Constitution authorizes independent appellate review and revision of
this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019).
Thus, we may revise a sentence if, after due consideration of the trial court’s
decision, we find that the sentence is inappropriate in light of the nature of the
offenses and the character of the offender. Id. The principal role of such review
is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008). The defendant bears the burden to persuade the reviewing court
that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574,
577 (Ind. 2018).
A. Nature of the Offense
[40] When assessing the nature of an offense, the advisory sentence is the starting
point that the legislature selected as an appropriate sentence for the particular
crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The trial
court entered judgment of conviction and sentenced Shepherd only for his Level
1 felony aggravated battery conviction. A Level 1 felony has a minimum
sentence of twenty years and a maximum sentence of forty years, with an
advisory sentence of thirty years. I.C. § 35-50-2-4(b). The trial court imposed a
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moderately-enhanced sentence of thirty-five years and suspended five years to
probation.
[41] When reviewing the nature of the offense, we look to the “the details and
circumstances of the commission of the offense and the defendant’s
participation.” Perry, 78 N.E.3d at 13. Shepherd maintains his innocence and,
therefore, does not offer any argument that his sentence was inappropriate in
light of the nature of his offense. However, Shepherd was found guilty by the
jury of the offense of aggravated battery, and we have concluded that the State
proved the offense beyond a reasonable doubt. Aggravated battery is a Level 1
felony if it results in the death of a person less than fourteen years old. I.C. §
35-42-2-1.5. A.F. was less than two years old when she died, so the age of the
victim in this case was much younger than that necessary to prove the offense,
rendering Shepherd’s offense more egregious. As Harper’s partner and A.F.’s
caretaker, Shepherd was in a position of trust with A.F. Instead of protecting
A.F. during the early hours of February 21, 2017, Shepherd drank tequila and
beat A.F. to death. There is evidence in the record suggesting that Shepherd
was upset that day that Harper had a continuing relationship with A.F.’s father
and that A.F. had been crying. The injuries Shepherd inflicted to A.F.’s head
were so forceful that they caused the sections of her skull to separate and
penetrated to her brain. The injuries Shepherd inflicted to A.F.’s abdomen
caused massive internal bleeding that shut down her organs. Either of these sets
of injuries would have been enough to cause A.F.’s death, so the harm that
Shepherd caused to A.F. was far greater than that necessary to prove the
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offense, which also makes his offense more egregious. All of this occurred
within ten-year-old J.S.’s hearing. In short, we find nothing about the nature of
Shepherd’s offense which renders the moderately-enhanced sentence imposed
here inappropriate.
B. Character of the Offender
[42] Shepherd urges us to revise his sentence in light of his character. Upon
reviewing a sentence for inappropriateness, we look to a defendant’s life and
conduct as illustrative of his character. Morris v. State, 114 N.E.3d 531, 539
(Ind. Ct. App. 2018), trans. denied. Shepherd directs our attention to his lack of
criminal record prior to the instant offenses, his positive relationships with his
own six children and others, and his employment record. However, we find the
fact that Shepherd was on pre-trial release on a charge of Level 6 felony
domestic battery against the mother of one of his children at the time he
committed the instant offense, evidence in the record that Shepherd attempted
to procure Harper’s cooperation in fashioning a version of events favorable to
him, and his daily marijuana use prevent us from adjusting his sentence based
on his lack of a criminal record. In addition, after severely beating A.F.,
Shepherd knew at the very least that he had inflicted serious injuries to A.F.’s
tongue, yet instead of seeking assistance for her, he took photographs of her
injuries and went to sleep. We find this to be more illustrative of Shepherd’s
character than the sentencing testimony and materials offered to the trial court
by his friends and family or the two jobs he listed in his presentence
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investigation report. Accordingly, we decline to revise Shepherd’s sentence in
light of his character.
CONCLUSION
[43] Based on the foregoing, we conclude that the State proved beyond a reasonable
doubt that Shepherd inflicted A.F.’s injuries; the trial court did not abuse its
discretion in excluding J.S.’s video-recorded interviews; Shepherd’s
instructional claim is moot; the trial court acted within its discretion in
admitting the images seized from Shepherd’s cell phone; Shepherd’s sentence
does not violate Indiana’s Proportionality Clause; and Shepherd’s sentence is
not inappropriate.
[44] Affirmed.
[45] May, J. and Altice, J. concur
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