Charles E. Bayne III v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jun 10 2019, 8:40 am
court except for the purpose of establishing
CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Mark K. Leeman Curtis T. Hill, Jr.
Logansport, Indiana Attorney General of Indiana
Kevin E. Milner Caroline G. Templeton
Crown Point, Indiana Lyubov Gore
Deputy Attorneys General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Charles E. Bayne III, June 10, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-1290
v. Appeal from the Lake Superior
Court
State of Indiana, The Honorable Salvador Vasquez,
Appellee-Plaintiff. Judge
Trial Court Cause No.
45G01-1707-MR-5
Mathias, Judge.
[1] Following a jury trial in Lake Superior Court, Charles E. Bayne III (“Bayne”)
was convicted of Level 2 felony voluntary manslaughter. Bayne then admitted
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to the sentencing enhancement of using a firearm during the offense. The trial
court sentenced Bayne to fifteen years of incarceration on the voluntary
manslaughter conviction and to five years in community corrections for the
firearm enhancement. On appeal, Bayne presents two issues, which we restate
as: (1) whether the State presented sufficient evidence to support his conviction
for voluntary manslaughter and to rebut his claim of self-defense, and (2)
whether the trial court erred as a matter of law in sentencing Bayne on the
firearm enhancement.
[2] We affirm.
Facts and Procedural History
[3] The victim in this case, Cody Klotz (“Cody”) had been in a relationship with
Emily Kurczynski (“Emily”) for almost five years before their relationship
ended in May 2017. Their relationship involved domestic violence. The
following month, Emily began to date the defendant Bayne. Despite the
breakup, or perhaps because of it, Cody sent Emily “mean-spirited” and
“inappropriate” text messages. Tr. Vol. 2, p. 104. Emily therefore blocked
Cody’s number so that he could no longer send her messages directly.
[4] On July 13, 2017, Cody was hanging out with friends, including his new
girlfriend, Nikki Karner (“Nikki”) and Tyler Kampe (“Tyler”), who used to be
a friend of Bayne’s as well. Tyler looked at a story (a collection of pictures
and/or videos) that Bayne had posted on the smartphone social media app
Snapchat and saw one that included Emily. Cody asked Tyler to take a
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screenshot of that picture and send it to him.1 When another user takes a
screenshot of the Snapchat app, the person who posted the photo or video
receives a notice that that particular user has taken a screenshot of that photo or
video.
[5] The following day, Bayne received notice that Tyler had taken a screenshot of
his Snapchat photo. He was upset and sent a message to Tyler asking him why
he had done so. He also asked Tyler if he had taken the screenshot at Cody’s
direction. The two exchanged messages for about one hour until Tyler stopped
responding between 1:00 p.m. and 1:30 p.m.
[6] Later that evening, Tyler met Cody at a local bar in Lowell, Indiana, where
Cody’s girlfriend Nikki worked. Tyler showed Cody the messages he had
exchanged with Bayne regarding the screenshot, and Cody laughed at Bayne’s
reaction. The two drank beer and whiskey, and although Tyler claimed that
they remained “relatively sober,” Tr. Vol. 2, p. 35, tests taken after Cody’s
death revealed that his blood alcohol concentration was 0.142. Tr. Vol. 1, p.
194.
[7] At some point later in the night, Cody took Tyler’s phone and used it to send a
provocative photo to Bayne via Snapchat. Specifically, the photo was of Emily,
nude from the waist up. Cody had used the Snapchat app’s photo editor to
1
Items posted to Snapchat are not stored long-term, and the Snapchat app does not provide a direct way of
saving photos or videos posted by someone else.
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cover Emily’s nipples with an emoji or avatar of a person “flipping off” the
viewer with its middle finger. Tr. Vol. 2, p. 37. Bayne received this Snapchat
photo at approximately 2:00 a.m. on the morning of July 15, 2017, while he
and Emily were in bed. Bayne responded by sending a message calling Cody a
“deadbeat dad,” and stating that Cody’s daughter could not look up to her
father. Id. at 41, 221. This angered Cody, who told Bayne that he was coming
over to his house to confront him. Bayne then told Emily that Cody was on his
way over to “beat my ass” or “whoop my ass.” Id. at 125, 221. Cody and Tyler
then drove over to Bayne’s house, an approximately five-minute trip.
[8] In the meantime, Bayne got dressed, retrieved a handgun from his garage, and
went outside and sat on the tailgate of a pickup truck to wait for Cody to arrive.
Bayne claimed that he thought he did not have enough time to call 911, but he
did not ask Emily to call 911 either. Emily sat next to Bayne on the tailgate
awaiting the arrival of Cody and Tyler.
[9] When Cody and Tyler arrived at Bayne’s house, Cody immediately got out of
the car and began to walk toward Bayne. Bayne taunted Cody by stating,
“what’s up, baby boy[?]” Tr. Vol. 2, p. 137. Cody responded that he was going
to “whoop [Bayne’s] ass.” Id. Emily got up from the tailgate and tried to
intervene. She told Cody to leave and punched him in the face. Cody pushed
Emily out of his way and told Bayne, “you want to bring my kid into it, now
it’s different,” and told Bayne that “we got to settle this.” Tr. Vol. 2, p. 46.
Bayne warned Cody that he had a gun, and raised his handgun toward Cody,
saying “I’m not going to fight you, but I will shoot you[.]” Tr. Vol. 3, p. 21.
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[10] There was conflicting testimony as to what occurred next. Tyler testified that,
as he tried to deal with Emily, he heard a gunshot. He testified that he saw no
physical altercation between Bayne and Cody. Emily testified that she saw
Cody grab Bayne’s legs before Bayne shot him. And Bayne testified that Cody
grabbed his legs, and when he felt his legs slipping out from beneath him, he
raised his weapon and fired a “random shot.” Tr. Vol. 2, p. 228.
[11] After hearing the shot, Tyler saw that Cody was lying on the ground and went
over to check on him. Cody told Tyler to call 911, and he did so. Cody died at
the scene sometime shortly thereafter. After the shooting, Bayne and Emily
went inside Bayne’s home, where Bayne also called 911. During this call,
Bayne told the 911 operator that his girlfriend’s ex-boyfriend, Cody, had come
to his home and started “pushing and hitting us.” Ex. Vol., State’s Ex. 54. Also
during the call, when Emily stated, “you shot Cody,” Bayne responded, “he’s
not going to f**king push you around or push me around.” Id. When
emergency responders arrived at the scene, Bayne was cooperative and showed
them where the gun he had used was located.
[12] Autopsy results indicated that the bullet entered Cody’s upper left chest,
traveling downward through his left lung, striking his fourth thoracic vertebra,
and exiting from the right lower back. The case of Cody’s death was
exsanguination. Forensic testing of Cody’s shirt indicated that the weapon was
one to two feet away from Cody when the fatal shot was fired.
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[13] On July 15, 2017, the State charged Bayne with murder. On November 2, 2017,
the State amended the charging information to include an allegation of Level 2
felony voluntary manslaughter. The amended charging information also alleged
the sentence enhancement of use of a firearm. A four-day jury trial commenced
on January 16, 2018, at which Bayne claimed self-defense. At the conclusion of
the trial, the jury found Bayne not guilty of murder, but guilty of voluntary
manslaughter. Bayne subsequently admitted to the firearm sentencing
enhancement.
[14] At the May 11, 2018 sentencing hearing, Bayne argued that the entirety of his
sentence, including the sentence enhancement, could be suspended. Bayne
requested that the trial court sentence him to a total of ten years, with one year
of incarceration and nine suspended to probation. The State requested that the
trial court sentence Bayne to twenty-two years on the voluntary manslaughter
conviction, with seventeen and one-half years executed and the remainder
suspended to probation, and a consecutive term of five years for the firearm
enhancement.
[15] The trial court expressed its belief that the firearm enhancement was not
suspendible, but also stated, “I don’t think that it would be proper for me on a
gun enhancement to suspend the sentence, to give probation.” Sentencing Tr. p.
54–55. Ultimately, the trial court sentenced Bayne to fifteen years executed on
the voluntary manslaughter conviction and to five years in community
corrections on the firearm enhancement. Bayne now appeals.
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Sufficiency of the Evidence
[16] Bayne argues that the State presented insufficient evidence to support his
conviction for voluntary manslaughter and to rebut his claim of self-defense.
Our standard of review of claims of insufficient evidence is well settled:
When reviewing a claim that the evidence is insufficient to
support a conviction, we neither reweigh the evidence nor judge
the credibility of the witnesses; instead, we respect the exclusive
province of the trier of fact to weigh any conflicting evidence. We
consider only the probative evidence supporting the verdict and
any reasonable inferences which may be drawn from this
evidence. We will affirm if the probative evidence and reasonable
inferences drawn from the evidence could have allowed a
reasonable trier of fact to find the defendant guilty beyond a
reasonable doubt.
Harrison v. State, 32 N.E.3d 240, 247 (Ind. Ct. App. 2015), trans. denied (citing
McHenry v. State, 820 N.E.2d 124, 126 (Ind. 2005)).
I. Voluntary Manslaughter
[17] Bayne first argues that his conviction for voluntary manslaughter cannot stand
because there was insufficient evidence of sudden heat. This argument calls for
us to once again discuss the difference between murder and voluntary
manslaughter.
[18] A person who knowingly or intentionally kills another human being commits
murder. Ind. Code § 35-42-1-1(1). However, a person who knowingly or
intentionally kills another human being while acting under “sudden heat”
commits voluntary manslaughter. Ind. Code § 35-42-1-3(a). Since voluntary
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manslaughter is simply murder mitigated by evidence of sudden heat, it is an
inherently included offense of murder. Watts v. State, 885 N.E.2d 1228, 1231
(Ind. 2008); Wilkins v. State, 716 N.E.2d 955, 956–57 (Ind. 1999). “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), reh’g denied
(quoting Isom v. State, 31 N.E.3d 469, 486 (Ind. 2015)). “Sudden heat excludes
malice, and neither mere words nor anger, without more, provide sufficient
provocation.” Conner v. State, 829 N.E.2d 21, 24 (Ind. 2005). Evidence of
sudden heat may be found in either the State’s case-in-chief or the defendant’s
case. Brantley, 91 N.E.3d at 572 (citing Jackson v. State, 709 N.E.2d 326, 328
(Ind. 1999)). The question of whether the evidence presented constitutes sudden
heat sufficient to warrant a conviction for voluntary manslaughter instead of
murder is for the jury to determine. Id.
[19] Contrary to Bayne’s claims that there was no evidence of sudden heat, Bayne
himself testified that he was “terrified” when Cody threatened to beat him up,
as he knew Cody had a reputation for violence and often carried a firearm. Tr.
Vol. 2, p. 223, 225, 235. Bayne also testified that he suffered from a serious
kidney condition and had to avoid trauma to his kidneys; thus, he was
“terrified” of fighting Cody. Id. at 228. There was also evidence indicating that
Bayne was provoked by anger, rage, or resentment: Cody sent Bayne a nude
picture of Bayne’s girlfriend, Emily, and threatened to come over and beat him
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up. Even after the shooting, Bayne seemed angry, stating on the 911 call that
Cody was “not going to f**king push [Emily] around or push me around.” Ex.
Vol., State’s Ex. 54. Thus, there was ample evidence that Bayne was acting out
of fear, anger, resentment, or a combination thereof.
[20] We find this case similar to Brantley, supra, where our supreme court disagreed
with the contention that the State’s concession that the defendant acted under
sudden heat nullified the defendant’s claim of self-defense. The court explained:
[C]laims of self-defense and killing in sudden heat are not
inherently inconsistent and, in appropriate circumstances, juries
may be instructed on both. As with most cases, the jury here was
faced with two stories: one where Brantley acted irrationally out
of sudden heat, the other where Brantley acted rationally in self-
defense. These explanations for Brantley's actions are not
conflicting since the nature of each defense is different, and it was
within the province of the jury to weigh the evidence and assess
witness credibility in arriving at its verdict.
Indeed, common to both defenses is terror. A defendant acts in
self-defense when confronted with real danger of death or great
bodily harm, or in such apparent danger as caused him, in good
faith, to fear death or great bodily harm. The danger need not be
actual, but the belief must be in good faith and the reaction
must be reasonable. Similarly, sudden heat, which is sufficient to
reduce murder to voluntary manslaughter, requires evidence of
anger, rage, sudden resentment, or terror that is sufficient to
obscure the reason of an ordinary man. Thus, terror sufficient to
establish the fear of death or great bodily harm necessary for
self-defense could be equally sufficient to invoke sudden heat.
In other words, the same evidence can either mitigate murder or
excuse it altogether. It’s the jury’s call. Here, faced with
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competing evidence, the jury rejected Brantley’s self-defense
defense, a decision we affirm.
Brantley, 91 N.E.3d at 573–74 (emphases added) (citations and internal
quotation marks omitted).
[21] The same is true in the present case. Common to both the State’s claim of
voluntary manslaughter and Bayne’s claim of self-defense was Bayne’s claim of
fear and terror. Bayne presented evidence supporting his claim that he was in
fear of Cody and that he acted rationally out of self-defense. The State
presented evidence that Bayne was afraid of Cody and acted irrationally in
sudden heat. As in Brantley, it was the jury’s prerogative to decide whether
Bayne acted rationally or irrationally under these circumstances. Unfortunately
for Bayne, the jury decided that he acted irrationally. Although this is a close
case, we are unable to say that no reasonable jury could conclude that Bayne
acted out of sudden heat.
II. Self-Defense
[22] The same reasoning dooms Bayne’s argument that there was insufficient
evidence to negate his claim of self-defense. Our standard of review for a
challenge to the sufficiency of evidence to rebut a claim of self-defense is the
same as the standard for any sufficiency-of-the-evidence claim. Wilson v. State,
770 N.E.2d 799, 801 (Ind. 2002). “When a claim of self-defense is raised and
finds support in the evidence, the State has the burden of negating at least one
of the necessary elements.” Id. at 800. “The State may meet this burden by
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rebutting the defense directly, by affirmatively showing the defendant did not
act in self-defense, or by simply relying upon the sufficiency of its evidence in
chief.” Miller v. State, 720 N.E.2d 696, 700 (Ind. 1999). If a defendant is
convicted despite his claim of self-defense, we will reverse only if no reasonable
person could say that self-defense was negated by the State beyond a reasonable
doubt. Wilson, 770 N.E.2d at 800–01.
[23] A valid claim of self-defense is legal justification for an otherwise criminal act.
Wallace v. State, 725 N.E.2d 837, 840 (Ind. 2000). Pursuant to Indiana Code §
35-41-3-2(c), “[a] person is justified in using reasonable force against any other
person to protect the person or a third person from what the person reasonably
believes to be the imminent use of unlawful force.” However, a person is
justified in using deadly force, and does not have a duty to retreat, “if the
person reasonably believes that that force is necessary to prevent serious bodily
injury to the person or a third person or the commission of a forcible felony.”
Id. To prevail on a self-defense claim, the defendant must show that he: (1) was
in a place where he had a right to be; (2) acted without fault; and (3) was in
reasonable fear of death or great bodily harm. Henson v. State, 786 N.E.2d 274,
277 (Ind. 2003).
[24] Still, “the force used must be proportionate to the requirements of the
situation.” Weedman v. State, 21 N.E.3d 873, 892 (Ind. Ct. App. 2014) (citing
McKinney v. State, 873 N.E.2d 630, 643 (Ind. Ct. App. 2007), trans. denied), trans.
denied. Thus, “a claim of self-defense will fail if the person ‘uses more force than
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is reasonably necessary under the circumstances.’” Id. (citing Sudberry v. State,
982 N.E.2d 475, 481 (Ind. Ct. App. 2013)).
[25] Here, the jury could reasonably conclude that, even though Bayne may have
been “terrified” of Cody, he did not act in a reasonable manner and used more
force than was necessary under the circumstances. When Cody threatened to
come over and fight Bayne, Bayne did not stay inside his home and call 911. He
instead armed himself, went outside, and waited for Cody to arrive. When
Cody did arrive, Bayne taunted him and pointed a gun at him. And even
though there was evidence that Cody did attempt to physically engage in a fight
with Bayne by grabbing his legs, the jury could reasonable conclude that Bayne
responded in a disproportionate manner by shooting Cody in the chest. There
was no indication that Cody was armed in any way. And despite Bayne’s claim
that he feared serious injury due to his kidney problem, the jury was under no
obligation to credit this testimony.
[26] Again, as in Brantley, it was for the jury, not this court on appeal, to determine
whether Bayne acted rationally in self-defense or irrationally in sudden heat.
The jury chose the latter, and we cannot say that no reasonable jury could come
to this conclusion. Accordingly, we affirm Bayne’s conviction for voluntary
manslaughter.
Sentencing
[27] Bayne also argues that we should remand for resentencing on the firearm
enhancement because the trial court was under the assumption that any
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sentence imposed on the enhancement could not be suspended. Bayne’s
argument presumes that the trial court was mistaken, i.e., that the firearms
enhancement could be suspended.2
[28] Pursuant to Ind. Code section 35-50-2-11(d):
The state may seek, on a page separate from the rest of a
charging instrument, to have a person who allegedly committed
an offense sentenced to an additional fixed term of imprisonment
if the state can show beyond a reasonable doubt that the person
knowingly or intentionally used a firearm in the commission of
the offense.
If the State so alleges, the question of whether the defendant did knowingly or
intentionally use a firearm in the commission of the offense is put before the
jury in a manner similar to that of a habitual offender enhancement. See id. at §
11(f). If the jury finds that the State proved beyond a reasonable doubt that the
defendant “knowingly or intentionally used a firearm in the commission of the
offense under subsection (d), the court may sentence the person to an additional
fixed term of imprisonment of between five (5) years and twenty (20) years.” Id.
at § 11(g).
[29] In contrast to the habitual offender statute, however, the firearm enhancement
statute does not state that a sentence imposed thereunder may not be
2
Contrary to Bayne’s argument on appeal, his trial counsel did not state that the firearm enhancement was
non-suspendible. In fact, his trial counsel specifically argued to the trial court at the sentencing hearing that
the firearm enhancement was suspendible. Sentencing Tr. p. 34–35.
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suspended. Compare Ind. Code § 35-50-2-8(i) (“An additional term imposed
under [the habitual offender statute] is nonsuspendible.”) with I.C. § 35-50-2-11
(containing no similar provision). It therefore appears that Bayne is correct that
a firearm enhancement may be suspended. To the extent that the trial court
believed otherwise, it was mistaken.
[30] However, we do not believe that remand for resentencing is necessary. As noted
by the State, even though the trial court indicated its belief that a firearm
enhancement could not be suspended, it also stated that it did not believe that a
suspended sentence was appropriate in the present case. Specifically, the trial
court stated, “So to the extent that the argument is made that I should give Mr.
Bayne a suspended probation term for that five-year term, I do not believe that’s
appropriate.” Sentencing Tr. p. 55. We therefore agree with the State that there
is no need to remand for resentencing on the firearm enhancement because we
are confident that the trial court would have imposed the same sentence even if
it believed that the enhancement was suspendible. See Grimes v. State, 84 N.E.3d
635, 644 (Ind. Ct. App. 2017) (noting that, even if the trial court abuses its
discretion by considering an improper aggravator, we will not remand for
resentencing if we are confident that the trial court would have impose the same
sentence regardless of the error), trans. denied.
Conclusion
[31] The State presented evidence sufficient to support Bayne’s conviction for
voluntary manslaughter and to negate his claim of self-defense. There was
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evidence that Bayne was angry, terrified, and resentful of the victim, and the
decision as to whether Bayne acted rationally in self-defense or irrationally in
sudden heat was a question for the jury that we will not disturb on appeal. With
regard to Bayne’s sentence, even if the trial court erroneously believed that the
firearm enhancement was non-suspendible, we need not remand for
resentencing, as the trial court indicated that it would have imposed the same
sentence even if it believed that the enhancement was suspendible. We therefore
affirm the judgement of the trial court.
[32] Affirmed.
Vaidik, C.J., and Crone, J., concur.
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