Darius Jordan Birk v. State of Indiana

• Court: Indiana Court of Appeals
• Decided: July 17, 2023
• Docket: 22A-CR-01133
• Status: Published

Opinion

FILED Jul 17 2023, 8:56 am

CLERK Indiana Supreme Court Court of Appeals and Tax Court

ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew J. Baldwin Theodore E. Rokita Baldwin Perry & Kamish, P.C. Attorney General of Indiana Franklin, Indiana J.T. Whitehead Michael R. Auger Steven J. Hosler Franklin, Indiana Deputy Attorneys General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Darius Jordan Birk, July 17, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-1133 v. Appeal from the Johnson Superior Court State of Indiana, The Honorable Appellee-Plaintiff. Peter D. Nugent, Judge Trial Court Cause No. 41D02-2104-F3-27

Opinion by Judge Foley Judges Bailey and May concur.

Foley, Judge.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 1 of 17 [1] Darius Jordan Birk (“Birk”) appeals his conviction, after a jury trial, of Level 3

felony aggravated battery causing serious permanent disfigurement, 1 Level 6

felony pointing a firearm at another, 2 Class A misdemeanor carrying a handgun

without a license,3 and Level 1 felony attempted murder. 4 Birk raises two issues

for our review: (1) whether the trial court violated his Sixth Amendment right

to confront and cross-examine certain witnesses; and (2) whether the trial

court’s jury instruction regarding “intent” was misleading, prejudicial, and

impermissibly relieved the State from its burden of proof. Finding no Sixth

Amendment violation and the jury instruction proper, we affirm.

Facts and Procedural History 5 [2] Sabrina Reynolds (“Reynolds”)—along with her two children—lived in a

townhouse provided to her by her father, Mark Reynolds (“Mark”). 6 For years,

Reynolds was in an on-again and off-again relationship with Jason Monroe

(“Monroe”), the de facto father of both of her children. 7 Around Christmas

time in 2020, Reynolds met Birk through mutual friends, and the two became

1 Ind. Code § 35-42-2-1.5(1). 2 I.C. § 35-47-4-3(b). 3 I.C. § 35-47-2-1(a)(2017), amended by Pub. L. No. 175-2022, § 8 (eff. July 1, 2022). 4 I.C. §§ 35-42-1-1, 35-41-5-1. 5 We held an oral argument on May 18, 2023, at Martinsville High School. We thank the parties and the school for their participation. 6 Sabrina and Mark share the same last name: Reynolds. To avoid confusion, we identify Mark by his first name. 7 Monroe is the biological father of Reynolds’s youngest child.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 2 of 17 friends then started dating. Shortly thereafter, Birk moved his clothes and other

belongings into the townhouse. On March 13, 2021, Birk and Reynolds got

into an argument about Reynolds’s stimulus money. Birk wanted to use the

money to purchase a gun. Reynolds wanted to use the money for the

downpayment on her own apartment so that she could move out of Mark’s

townhouse.

[3] The argument progressed, and Reynolds decided to take Birk to his mother’s

(“Sheila”) house.8 Reynolds drove her van, and Birk sat in the front passenger

seat. The argument escalated. As Reynolds entered Sheila’s neighborhood,

Reynolds screamed for Birk to “get the fuck out of [her] car[,]” but Birk refused

to do so. Tr. Vol. 4 pp. 30–31. Birk then pulled his gun out, cocked it, and

pointed it at Reynolds, telling her “I should shoot you[.]” Id. at 33, 37.

Reynolds replied: “[T]hen fucking shoot me.” Id. Birk then shot Reynolds in

the face. Reynolds got out of the van, and Birk ran after her, grabbed her, and

put her in the backseat of the van while calling her a “stupid bitch.” Id. at 38.

A bystander testified that Birk stated “I’m sorry, baby, I’m sorry” when he

grabbed Reynolds and put her back in the van. Tr. Vol. 3 p. 194. Another

bystander testified that when Birk got out of the van, she heard Birk screaming

“call [ ] 911.” Id. at 181. Once Birk put Reynolds in the van, he quickly drove

8 Darius and Sheila share the same last name: Birk. To avoid confusion, we identify Sheila by her first name.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 3 of 17 Reynolds to the hospital. When they arrived at the hospital, Birk ran inside,

screaming “I need help.” Tr. Vol. 4 p. 60.

[4] As a result of being shot, Reynolds suffered a fractured jaw and “a laceration to

the tip of her tongue.” Id. at 185. She also lost some of her teeth and a

significant amount of blood. Reynolds underwent three surgeries, and she was

in the hospital for two-and-a-half weeks. While still in the hospital, and four

days after the shooting, Reynolds remained unable to speak. When the police

spoke with her, she wrote a note to Detective Rick Saltsgaver (“Detective

Saltsgaver”) stating “[Birk] didn’t mean to do it.” Tr. Vol. 2 p. 137. 9 After

Reynolds was discharged from the hospital, she was under Mark’s care while

Monroe took care of her children for six days before she next spoke to Detective

Saltsgaver to tell him that Birk “mean[t] to [shoot her].” Id. at 49.

[5] On April 1, 2021, the State charged Birk with: Count 1, aggravated battery

causing serious permanent disfigurement as a Level 3 felony; Count 2, pointing

a firearm at another as a Level 6 felony; and Count 3, carrying a handgun

without a license as a Class A misdemeanor. On September 17, 2021, the State

amended the information to add Count 4, attempted murder as a Level 1

felony. From February 28 to March 7 of 2022, a jury trial was held.

9 State’s Exhibit 113 is a note written by Reynolds stating that Birk “didn’t mean to.” Tr. Vol. 5 pp. 78–79. The exhibit in the record only contains a cover page stating, “STATE’S EXHIBIT 113 — EVIDENCE BAG – NOTE FROM [REYNOLDS][,]” but does not contain the note. Despite the absence of the note in the record, the parties do not dispute what the note says.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 4 of 17 [6] Birk sought to introduce testimony regarding Mark’s and Monroe’s use of the

word “n***er” in reference to Birk and their racial animus towards Birk.

Neither Mark nor Monroe testified at trial, but they did testify outside the

presence of the jury during an offer of proof. Both Mark and Monroe denied

using the word “n***er in reference to Birk.” See Tr. Vol. 6 pp. 36, 43. Mark

also stated that Reynolds had told him that Monroe used the word “n***er” in

reference to Birk. Reynolds stated that Mark had never used the word “n***er”

when referring to Birk, but that Monroe had “called [ ] Birk a [n***er]” before.

Tr. Vol. 5 pp. 221–22. Birk also called Kyle Smith (“Smith”) and Sheila to

testify during the offer of proof. Smith stated that Reynolds had told him that

Mark “referred to [Birk] as a n***er” and when Smith ran into Mark on the

date of the shooting, but after the shooting had occurred, Mark asked Smith:

“why would you ever be friends with a [n***er] that [sic] would do something

this awful to my daughter [Reynolds?]” Tr. Vol. 6 p. 96. Sheila stated that

Reynolds had told her that Mark “said he didn’t want that [n***er] in his

house. And that if messing with a [n***er] is what [Reynolds] chose to do,

then, he was willing to put her and her kids out of the townhouse.” Id. at 100.

Sheila also testified that while Reynolds was on the phone with Monroe, she

overheard Monroe say: “I done told you [sic] about driving by my house with

that fucking [n***er] boyfriend of yours in the car.” Id. at 103.

[7] Ultimately, the trial court denied Birk’s request to introduce evidence regarding

Mark’s and Monroe’s racial animus towards Birk, ruling that such evidence was

“collateral.” See Tr. Vol. 3 p. 120; Tr. Vol. 5 p. 226; Tr. Vol. 6 p. 52–53.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 5 of 17 [8] During preliminary jury instructions and again during the final jury

instructions, Birk objected to the State’s jury instruction regarding intent,

alleging that the instruction was “misleading if it [was] stated that way” and

asked for the instruction to be reworded. Tr. Vol. 2 p. 102. The trial court

denied the request both times. Birk was found guilty on all four counts. Birk

now appeals.

Discussion and Decision I. Exclusion of Evidence of Racial Bias

[9] Birk argues that the trial court erred when it excluded evidence of the racial

animus of Mark and Monroe because it curtailed his right to confront and

cross-examine them under the Sixth Amendment. “[W]hen a constitutional

violation is alleged, ‘the proper standard of appellate review is de novo.’”

Ackerman v. State, 51 N.E.3d 171, 177 (Ind. 2016) (quoting Speers v. State, 999

N.E.2d 850, 852 (Ind. 2013)). The Sixth Amendment's Confrontation Clause

provides, in relevant part, that “[i]n all criminal prosecutions, the accused shall

enjoy the right ... to be confronted with the witnesses against him.” U.S.

CONST. amend. VI. However, “it does not provide for cross-examination that

is effective in whatever way, and whatever extent, that a defendant might

wish.” Watson v. State, 134 N.E.3d 1038, 1044 (Ind. Ct. App. 2019) “[T]he

accused, as is required of the State, must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence.” Marley v. State, 747 N.E.2d 1123, 1132

(Ind. 2001).

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 6 of 17 [10] Birk wanted to elicit testimony from Reynolds, Mark, Monroe, Smith, and

Sheila that Mark and Monroe had referred to Birk by the racial slur “n***er.”

Birk argued that Mark’s and Monroe’s racial animus towards Birk provided, at

least in part, Reynolds’s motive for changing her characterization of the

shooting from an accident to an intentional act. 10 Indiana Evidence Rules 401

and 403 set the framework for our analysis. First, we must determine whether

the excluded evidence was relevant. “Evidence is relevant if: (a) it has any

tendency to make a fact more or less probable than it would be without the

evidence; and (b) the fact is of consequence in determining the action.” Ind.

Evidence Rule 401. The evidence, if probative, must be excluded if the

prejudicial nature of the evidence substantially outweighs its probative value.

See Ind. Evidence Rule 403 (“The court may exclude relevant evidence if its

probative value is substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading the jury, undue

delay, or needlessly presenting cumulative evidence.”). “When determining the

likely unfair prejudicial impact, courts will look for the dangers that the jury

will (1) substantially overestimate the value of the evidence or (2) that the

evidence will arouse or inflame the passions or sympathies of the jury.” Carter

v. State, 766 N.E.2d 377, 382 (Ind. 2002) (citing Evans v. State, 643 N.E.2d 877,

880 (Ind. 1994)).

10 Any party, including the party that called the witness, may attack the witness’s credibility. Ind. Evidence Rule 607.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 7 of 17 [11] First, we must consider whether the excluded testimony is relevant. Birk’s

theory is not that Reynolds harbored racial animus towards Birk, but that the

racial animus of Mark and Monroe influenced Reynolds to testify at trial that

Birk shot her intentionally, in apparent contradiction to her hospital note stating

that Birk “didn’t mean to do it.” Tr. Vol. 2 p. 137. When Reynolds next spoke

to Detective Saltsgaver to tell him that Birk meant to shoot her, she had been in

Mark’s care for six days while Monroe took “care of the kids.” Id. at 49.

During Reynolds’s recovery from her injuries, she relied heavily on both Mark

and Monroe to provide her housing and assistance with her children. Birk’s

theory is that Reynolds changed her story about whether the shooting was

intentional due to her financial and emotional reliance upon Mark and Monroe,

not because she shared their racist views or disliked Birk due to his race. The

probative value of the evidence of the racial animus of Mark and Monroe to

explain Reynolds’s motive changing her story from “[Birk] didn’t mean to do

it” to “[Birk] did mean to do it[,]” id., was minimal, at best.

[12] We next consider whether the evidence was prejudicial, and if so, whether the

prejudice substantially outweighed its probative value. Birk relies on both

Tompkins v. State, 669 N.E.2d 394 (Ind. 1996) and Kimble v. State, 659 N.E.2d

182 (Ind. Ct. App. 1995). In each case, it was determined that the prejudicial

nature of the testimony did not substantially outweigh the probative value of

the evidence, and therefore, the evidence was admissible.

[13] In Tompkins, the defendant shot an African American five times in the head.

The trial court admitted evidence that the defendant used the phrase “no n***er

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 8 of 17 lane” to refer to the road leading to his lake property and evidence from three

witnesses regarding the defendant’s racial bias to support its theory that the

murder was racially motivated. Id. at 396–97. The defendant claimed that the

trial court erred in admitting the evidence because the evidence was irrelevant.

Id. at 396. The Indiana Supreme Court concluded that the trial court did not

abuse its discretion in determining that the evidence of defendant’s racial bias

was relevant and created an inference of defendant’s motive for the murder. Id.

at 397. Additionally, the Court noted that even if the trial court had found that

the probative value and danger of unfair prejudice of this evidence to be of

approximately equal weight, it must be excluded because the rule requires that

the danger of unfair prejudice substantially outweigh the probative value. Id. at

398; see also Ind. Evidence Rule 403. Thus, the trial court did not abuse its

discretion in admitting the evidence. Id.

[14] In Kimble, Kimble was convicted of conspiracy to commit robbery and felony

murder. Id. at 183. The trial court admitted testimony regarding Kimble’s

membership in the White Brotherhood, a racially biased organization. Id. at

184. The defendant argued that the trial court erred when it admitted that

evidence. Id. This court concluded that the trial court did not err because

Kimble and his cohorts specifically chose the victim because she was a black

prostitute and that Kimble stated that he considered himself an “official”

member of the organization because he has committed a crime against the black

race. Id. at 185. This court held that the evidence was highly probative of his

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 9 of 17 motive for participation in the victim’s murder and was not substantially

outweighed by the danger of unfair prejudice. Id.

[15] Birk points to Tompkins and Kimble as instances where “the Indiana Supreme

Court and the Court of Appeals have determined the racial bias evidence to be

relevant and admissible in spite of its potential for unfair prejudice to the

defendant.” Appellant’s Reply Br. p. 8; Ind. Evid. Rule 404(b). Birk’s reliance

on Tompkins and Kimble is misplaced because, in both cases, evidence of the

defendants’ own racial bias was used to demonstrate the motive behind their

crimes. Here, Birk attempted to present evidence that was not in any way

linked to the motive behind his crime. Neither Mark nor Monroe was present

when Birk shot Reynolds and some of the statements that Birk wanted to

question both Mark and Monroe about occurred weeks before the shooting. See

Tr. Vol. 6 pp. 34–35, 103. Evidence of Mark’s and Monroe’s racial animus

towards Birk would have exposed the two men as racially biased, but fails to

explain Reynolds’s motive for changing her story or disliking Birk.

[16] There is no question that the introduction of the racially charged testimony

posed a substantial risk that the jury may attribute the racist views of Mark or

Monroe to Reynolds, thus leading to unfair prejudice, confusion of the issues,

or misleading the jury. The risk of unfair prejudice is even more acute where

Reynolds is the sole eye-witness to testify regarding the shooting and the events

immediately preceding the shooting. As Birk argued in his brief, the

introduction of such evidence would have aroused the passions of the jury since

racial bias and prejudice is one of the most prototypical forms of bias and

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 10 of 17 prejudice known today. See Appellant’s Br. p. 30. Therefore, the prejudicial

effect of the excluded testimony was significant.

[17] We conclude that the prejudicial effect of the testimony substantially

outweighed its probative value. Birk’s goal was to challenge Reynolds’s

credibility and reveal her motives for inconsistencies in her version of events.

Evidence of racist remarks that were uttered by Mark and Monroe, who were

not present when the shooting occurred, was too remote and unfairly

prejudicial to aid Birk in accomplishing his goal. The trial court did not err in

excluding the testimony.

[18] Even if the trial court’s exclusion of the evidence was error, any error was

harmless beyond a reasonable doubt. See Koenig v. State, 933 N.E.2d 1271, 1273

(Ind. 2010) (“Violations of the right of cross-examination do not require

reversal if the State can show beyond a reasonable doubt that the error did not

contribute to the verdict”); see also Hall v. State, 36 N.E.3d 459, 468 (Ind. App.

Ct. 2015) (“A court determining whether an error is harmless beyond a

reasonable doubt must do so on review of the whole record.”). The correct

inquiry is whether, assuming that the damaging potential of the cross-

examination was fully realized, a reviewing court might nonetheless say that

the error was harmless beyond a reasonable doubt. McCarthy v. State, 749

N.E.2d 528, 534 (Ind. 2001) (citing Delaware v. Van Arsdall, 475 U.S. 673, 684

(1986)). Generally, errors in the admission of evidence are to be disregarded

unless they affect the substantial rights of a party. Montgomery v. State, 694

N.E.2d 1137, 1140 (Ind. 1998). In viewing the effect of the evidentiary ruling

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 11 of 17 on a defendant's substantial rights, we look to the probable impact on the fact

finder. Id.

[19] Despite the excluded evidence, Birk was able to impeach Reynolds and attack

her credibility. For instance, Birk elicited testimony that Reynolds referred to

the shooting as an accident. See Tr. Vol. 5 p. 79 (Detective Saltsgaver agreed

that “[t]he fact that [Reynolds] call[ed the shooting] an accident could be

evidence that [it was] an accident.”). At trial, Birk highlighted inconsistencies

in Reynolds’s narrative of what happened on the day of the shooting. See id. at

79–86 (Birk argued that for the first time during her testimony, Reynolds

testified that she: (1) slammed the brakes twice not once; (2) stopped three times

during the drive; (3) was in the driver’s seat screaming and rocking; and (4)

slammed on the brakes so hard that Birk flew into the windshield). In all those

instances, Birk was able to demonstrate the various ways Reynolds’s narrative

changed. Birk was afforded the ability to attack Reynolds’s credibility with

respect to her contradictory statements as to whether the shooting was

intentional or accidental.

[20] Birk was also able to argue to the jury that Reynolds’s financial and emotional

reliance upon Mark and Monroe was her motive for changing her story.

During his closing, Birk specifically argued that Reynolds’s motive for changing

her story was so that she could continue to receive assistance from Mark and

Monroe while she recovered from her injuries. Moreover, the State presented

ample evidence to support their theory that Birk intentionally shot Reynolds,

namely:

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 12 of 17 The State proved [Birk] announced his intention to shoot [Sabrina] before doing so. [Tr. Vol. 4 pp. 33, 37]. The State proved [Birk] had both emotional and financial motives for wanting [Sabrina] dead, as she was preventing him from using her stimulus money for either a new gun, or for drugs. [Tr. Vol. 4 pp. 23–30; Tr. Vol. 5 165–66]. [Birk] was about to lose access to her money.

Appellee’s Br. p. 28–29. See Standifer v. State, 718 N.E.2d 1107, 1111 (Ind.

1999) (denial of opportunity to fully cross-examine the witness was harmless

beyond a reasonable doubt given the ample evidence introduced to support the

convictions). Accordingly, any error on the trial court’s part was harmless

beyond a reasonable doubt.

II. Jury Instruction

[21] Birk next claims that the trial court erred in issuing the jury instruction

regarding intent. “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). “The manner of

instructing a jury lies largely within the discretion of the trial court and we will

reverse only for an abuse of discretion.” Carter v. State, 31 N.E.3d 17, 25 (Ind.

Ct. App. 2015), trans. denied. An abuse of discretion occurs where the decision

is clearly against the logic and effect of the facts and circumstances. Fansler v.

State, 100 N.E.3d 250, 253 (Ind. 2018). When reviewing a challenge to a jury

instruction, we consider: “(1) whether the instruction correctly states the law;

(2) whether there is evidence in the record to support the giving of the Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 13 of 17 instruction; and (3) whether the substance of the tendered instruction is covered

by other instructions which are given.” Cutter v. State, 725 N.E.2d 401, 408

(Ind. 2000). For a trial court to have abused its discretion, “the instructions

given must be erroneous, and the instructions taken as a whole must misstate

the law or otherwise mislead the jury.” Yeary v. State, 186 N.E.3d 662, 679

(Ind. Ct. App. 2022).

[22] The trial court gave the following instruction over Birk’s objection:

Intent to kill can be found from acts, declarations, and the conduct of the defendant at or just immediately before the commission of the offense, from the character of the weapon used and from the part of the body on which the wound was inflicted.[ 11]

Tr. Vol. 3 p. 134. Birk argued that the instruction was “confusing, misleading,

relieved the State of its burden of proof and presented inculpatory inferences but

omitted the converse aspects which would have benefited the jury in its

deliberations.” Appellant’s Br. p. 34. Birk asked for the instruction to be

reworded to:

Intent to kill can be found from acts, declarations, the conduct of the defendant at, just immediately before, or after the commission of the alleged offense, from the character of the weapon used on the part of the body on which the wound was inflicted.

11 The instruction was given as both a preliminary and final jury instruction.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 14 of 17 Tr. Vol. 6 p. 157 (emphasis added). The trial court denied the request, stating

that the proposed instruction “was not a correct statement of law. . . [and] that

[the instruction given] is the correct statement of law.” Id.

[23] Birk argues that the given instruction improperly confined the jury’s

consideration of evidence of intent to those acts and circumstances at or

immediately preceding the shooting and excluded those acts or circumstances

that occurred immediately after the shooting. However, the given instruction

was a correct statement of law. See Barany v. State, 658 N.E.2d 60, 65 (Ind.

1995) (“We have repeatedly held that the intent to kill may be inferred from the

use of a deadly weapon; the nature, duration, or brutality of the attack; and the

circumstances surrounding the crime.”). 12 Furthermore, the given instruction

was supported by the following evidence: (1) Birk pulled out his gun, cocked it,

and pointed it at Reynolds; 13 (2) firing Birk’s weapon required 5.25 pounds of

pressure on the trigger; 14 (3) Birk said “I should shoot you” to Reynolds right

before doing so;15 and (4) Birk shot Reynolds in the face from close range. 16 See

Humphrey v. Tuck, 151 N.E.3d 1203, 1207 (Ind. 2020) (“A trial court may refuse

a jury instruction only when ‘[n]one of the facts’ in the record would support

12 We also note that Birk does not direct us to any case law that supports his proposed instruction, nor does he claim that the given instruction was an incorrect statement of the law. 13 Tr. Vol. 4 pp. 33, 37. 14 Tr. Vol. 5 p. 140. 15 Tr. Vol. 4 pp. 33, 37. 16 Id.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 15 of 17 the legal theory offered in the instruction.”). The evidence presented at trial

supported the given instruction.

[24] Birk contends the instruction improperly instructed the jury to not consider any

acts and circumstances that may have occurred immediately after the shooting.

We disagree. The jury heard evidence of Birk’s acts, declarations, and conduct

that occurred immediately before, at the time of, and immediately after the

shooting. For instance, Birk presented evidence that he: (1) asked witnesses to

call 911; (2) apologized to Reynolds after shooting her; (3) drove Reynolds to

the hospital; and (4) asked for help when he got to the hospital. This is all

evidence that occurred immediately after the shooting and in support of Birk’s

theory that the shooting was accidental. During his closing argument, Birk

argued that his actions after the shooting demonstrate that he did not

intentionally shoot Reynolds. See Tr. Vol. VI p. 191–92 (Birk emphasized that

he immediately picked Reynolds up, shoved her into the van, and drove “like

crazy” in order to get her to the hospital for treatment). The jury was instructed

to “consider the instructions as a whole[,]” Appellant’s App. Vol. II p. 182, and

that “[a] person engages in conduct ‘intentionally’ if, when he engages in the

conduct, it is his conscious objective to do so.” Appellant’s App. Vol. III p. 13.

The jury not only heard evidence that supported Birk’s theory of an accidental

shooting, but, considering the instructions as a whole, was not prevented from

considering Birk’s post-shooting actions in its determination of intent. See

Carter v. State, 766 N.E.2d 377, 382 (Ind. 2002) (A conviction will not be

reversed for an instruction unless, “considering the instructions as a whole and

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 16 of 17 in reference to each other . . . the instructions as a whole mislead the jury as to

the law in the case.”). The instruction given by the trial court was a correct

statement of the law, was supported by the evidence, and when considered

among the other thirty-one instructions provided to the jury, did not unfairly

limit the jury’s consideration of relevant facts. The trial court did not abuse its

discretion in giving the challenged instruction and refusing Birk’s proposed

instruction.

Conclusion [25] Based on the foregoing, we conclude that there was no Sixth Amendment

violation and that the jury instruction was proper. We affirm Birk’s conviction

of Level 3 felony aggravated battery causing serious permanent disfigurement,

Level 6 felony pointing a firearm at another, Class A misdemeanor carrying a

handgun without a license, and Level 1 felony attempted murder.

[26] Affirmed.

Bailey, J., and May, J., concur.

Court of Appeals of Indiana | Opinion 22A-CR-1133 | July 17, 2023 Page 17 of 17