Stephen Anthony Byrd v. State of Indiana (mem. dec.)

• Court: Indiana Court of Appeals
• Decided: July 20, 2018
• Docket: 71A05-1710-CR-2288
• Status: Published

Opinion

MEMORANDUM DECISION FILED Pursuant to Ind. Appellate Rule 65(D), Jul 20 2018, 6:39 am this Memorandum Decision shall not be regarded as precedent or cited before any CLERK Indiana Supreme Court court except for the purpose of establishing Court of Appeals and Tax Court

the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Donald J. Berger Curtis T. Hill, Jr. Law Office of Donald J. Berger Attorney General of Indiana South Bend, Indiana Justin F. Roebel Supervising Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA

Stephen Anthony Byrd, July 20, 2018 Appellant-Defendant, Court of Appeals Case No. 71A05-1710-CR-2288 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1509-F1-12

Najam, Judge.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 1 of 10 Statement of the Case [1] Stephen Anthony Byrd appeals his convictions for attempted murder, a Level 1

felony, and burglary, as a Level 1 felony, following a jury trial. Byrd presents

four issues for our review, which we consolidate and restate as the following

three issues:

1. Whether the trial court abused its discretion when it admitted into evidence video recordings police officers found on his cell phone.

2. Whether the State presented sufficient evidence to support his convictions.

3. Whether his convictions violate double jeopardy principles.

[2] We affirm.

Facts and Procedural History [3] In early 2014, Byrd began dating Kenya Belcher, who lived in Mishawaka with

her two children. In March, Byrd moved into Belcher’s home. There was no

formal rental agreement between Byrd and Belcher, but he sometimes gave

Belcher money.

[4] On September 14, 2015, Belcher and Byrd “broke up” and she told him that she

did not want him to live in her house anymore. Tr. Vol. III at 20. In the

ensuing days, Byrd asked Belcher whether he could come back to her house,

and she told him “no each time.” Id. at 23. Belcher then asked her stepmother,

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 2 of 10 Cheryl Ashe, to come and stay with her at Belcher’s house, and she did.

Belcher and Ashe changed the locks to the doors on the house.

[5] On September 17, Belcher arrived home with her children at about 7:00 p.m.,

and she started preparing dinner when she smelled cigarette smoke coming

from the basement. Belcher went downstairs to investigate, and when she

reached the bottom of the stairs and went through a door to the basement,

someone struck her in the head. She fell down, and Belcher saw Byrd standing

over her. Byrd began stabbing her with a knife. Belcher yelled for help. After

Byrd had stabbed her multiple times, Belcher was able to get up, and she ran up

the stairs, where she found Ashe and her children near the top of the basement

stairs. Belcher kept running and ran out of the house and into the street, and

Byrd followed her outside, but he ran in the opposite direction. Belcher

eventually made her way back to her house and waited for emergency medical

technicians to arrive. After Belcher was transported to a local hospital, she

underwent a diagnostic scan of her head, and she received stitches, staples, and

glue to repair the multiple stab wounds.

[6] A few days later, police officers apprehended Byrd after a foot chase. Byrd

agreed to give a statement, and he signed a Miranda waiver form. Byrd

explained that Belcher had attacked him, and he offered to show the

interviewing police officer text messages to support his story. Accordingly, the

officer gave Byrd an additional waiver authorizing “a complete search” of his

phone, and Byrd signed the waiver. State’s Ex. 50. The officer then asked Byrd

whether Byrd would let him give the phone to a forensics specialist to search

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 3 of 10 the phone for communications with Belcher, and Byrd agreed. Byrd gave the

passcode to his locked phone to the officer. The forensics specialist found

multiple text messages between Byrd and Belcher, and he also found several

video recordings Byrd had made during the late afternoon of September 17,

2015, depicting Byrd inside Belcher’s house saying things like: “She tried to

outsmart me, she tried to lock me out of the house”; “I’m faced with a bad

decision, it’s a decision that I have no choice but to make. . . [and] by the time

you see this, I will be dead”; “If you play with somebody, if you play with their

emotions, you can die.” State’s Ex. 64.

[7] The State charged Byrd with attempted murder, a Level 1 felony, and two

counts of burglary, one as a Level 1 felony and one as a Level 2 felony. Byrd

filed a motion to suppress evidence, namely, the video recordings found on his

cell phone. The trial court denied that motion following a hearing. A jury

found Byrd guilty as charged. The trial court entered judgment of conviction

only for attempted murder, a Level 1 felony, and burglary, as a Level 1 felony.

And the court sentenced Byrd to an aggregate term of seventy years executed.

This appeal ensued.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 4 of 10 Discussion and Decision Issue One: Admission of Evidence

[8] Byrd first contends that the trial court abused its discretion when it admitted

into evidence the video recordings recovered from his cell phone.1 Byrd initially

challenged the admission of this evidence through a motion to suppress but

now appeals following a completed trial. Thus, the issue is appropriately

framed as whether the trial court abused its discretion by admitting the evidence

at trial. Lanham v. State, 937 N.E.2d 419, 421-22 (Ind. Ct. App. 2010). A trial

court is afforded broad discretion in ruling upon the admissibility of evidence,

and we will reverse such a ruling only when the defendant has shown an abuse

of discretion. Id. at 422. An abuse of discretion involves a decision that is

clearly against the logic and effect of the facts and circumstances before the

court. Id. We do not reweigh the evidence, and we consider conflicting

evidence in the light most favorable to the trial court’s ruling. Id.

[9] In essence, Byrd contends that his consent to search his cell phone was limited

to text messages and did not include the video recordings. But Byrd ignores the

plain language of the waiver he signed, which explicitly states that he consented

to a “complete search” of his cell phone and contains no limitation of any kind.

State’s Ex. 50. Byrd’s contention is entirely without merit. And, in any event,

in light of the overwhelming evidence of Byrd’s guilt, including text messages

1 We note that Byrd does not set out the applicable standard of review, which is required by Indiana Appellate Rule 46(A)(8)(b).

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 5 of 10 indicating that he was not allowed to go back to Belcher’s house and Belcher’s

eyewitness testimony regarding the attack, any error in the admission of this

evidence was harmless. Ind. Trial Rule 61; see Camm v. State, 908 N.E.2d 215,

225 (Ind. 2009).

Issue Two: Sufficiency of the Evidence

[10] Byrd next contends that the State presented insufficient evidence to support his

convictions. In reviewing the sufficiency of the evidence, we consider only the

evidence and reasonable inferences most favorable to the conviction, neither

reweighing the evidence nor reassessing witness credibility. Griffith v. State, 59

N.E.3d 947, 958 (Ind. 2016). We will affirm the judgment unless no reasonable

fact-finder could find the defendant guilty. Id.

[11] To prove attempted murder, a Level 1 felony, the State was required to show

that Byrd knowingly or intentionally attempted to kill Belcher when he

intentionally stabbed her with the intent to kill. Ind. Code §§ 35-42-1-1(1) and

35-41-5-l(a) (2015). To prove burglary, as a Level 1 felony, the State was

required to show that Byrd broke and entered Belcher’s home with the intent to

commit murder which resulted in serious bodily injury to Belcher, namely,

extreme pain. I.C. § 35-43-2-1.

[12] Byrd first asserts that, without the improperly admitted video recordings, “the

State’s evidence lacks sufficient evidence to prove the requisite intent for the

charge of attempted murder.” Appellant’s Br. at 16. But Byrd does not support

that contention with cogent argument. And, in any event, we have already held

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 6 of 10 that the trial court did not abuse its discretion when it admitted the video

recordings into evidence at trial. Further, there is more than enough evidence

other than the video recordings to support Byrd’s attempted murder conviction,

most notably Belcher’s testimony.

[13] Byrd also asserts that the State could not prove burglary because it did not show

that Byrd did not reside with Belcher at the time of the attack. In support of

that contention, Byrd does not cite to the record on appeal or any relevant case

law or statutory law, and the issue is waived. App. R. 46(A)(8)(a). Waiver

notwithstanding, the State presented ample evidence that Byrd did not reside

with Belcher on September 17, 2015, and, instead, that he broke and entered

her house. The evidence is sufficient to support both of Byrd’s convictions.

Issue Three: Double Jeopardy

[14] Finally, Byrd contends that his convictions violate double jeopardy principles.

Byrd’s argument on this issue consists of three sentences and merely alleges that

“a person may not be twice punished for a single offense arising from one set of

operative circumstances,” citing Bevill v. State, 472 N.E.2d 1247 (Ind. 1985),2

and Haggard v. State, 445 N.E.2d 969 (Ind. 1983). Appellant’s Br. at 18. Byrd

2 In Richardson v. State, 717 N.E.2d 32, 61 (Ind. 1999), Justice Boehm noted that, in its holding in Bevill, the Indiana Supreme Court was “incorrect in citing earlier authority” for the assertion that “multiple punishments in one proceeding violated Article 1, § 14” of the Indiana Constitution. (Boehm, J., concurring in result). And Justice Boehm noted that “[o]nly after Bevill was decided in 1985, do we find cases referring to double jeopardy and citing state and federal constitutions in dealing with multiple punishments. And in every instance . . . there is no suggestion that there is any difference between the two constitutions.” Id. at 63.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 7 of 10 suggests that, because both of his convictions include an element of serious

bodily injury, they cannot both stand.3 We cannot agree.

[15] In Davis v. State, 770 N.E.2d 319, 323 (Ind. 2002), our Supreme Court addressed

a defendant’s contention that “his convictions for attempted murder,

aggravated battery[,] and burglary as a class A felony [violated double jeopardy

principles because they arose] from the same factual evidence: [an] attack with

a knife.” The Court explained that

Article 1, section 14 provides that “[n]o person shall be put in jeopardy twice for the same offense.” Double jeopardy analysis involves the dual inquiries of the “statutory elements test” and the “actual evidence test,” as generally described in Richardson v. State, 717 N.E.2d 32 (Ind. 1999). . . .

The actual evidence test prohibits multiple convictions if there is “a reasonable possibility that the evidentiary facts used by the fact-finder to establish the essential elements of one offense may also have been used to establish the essential elements of a second challenged offense.” Richardson, 717 N.E.2d at 53.

***

Based upon our review of the evidence, charging information[,] and jury instructions, the conviction for aggravated battery arose from the same evidence that gave rise to the conviction for attempted murder. Therefore, a reasonable possibility exists that the jury used the evidence proving the elements of attempted murder to also establish the elements of aggravated battery.

3 Byrd does not clarify whether he alleges a violation of double jeopardy principles under the federal or state constitutions, or both.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 8 of 10 Because both convictions cannot stand under the Indiana Double Jeopardy Clause, we vacate the conviction for aggravated battery.

Id. at 323-24.

[16] Here, there is no apparent double jeopardy violation under the statutory

elements test. As for the actual evidence test, the attempted murder charge

alleged that Byrd stabbed Belcher multiple times, and the “serious bodily

injury” element of the burglary charge was Belcher’s “extreme pain.”

Appellant’s App. Vol. II at 3. In essence, Byrd contends that Belcher’s extreme

pain was caused by the stabbing and the convictions violate double jeopardy

principles because the same evidence was used to support both convictions. But

the evidence shows that Belcher’s extreme pain did not occur during the

stabbing, but came later. In particular, at trial, Belcher testified that she did not

feel any pain during the stabbing or in the immediate aftermath. Tr. Vol. III at

39. Rather, it was only after she was admitted to the hospital that she began to

experience pain and requested pain medication. And nothing in the State’s

argument at trial suggested that Belcher’s extreme pain was simultaneous with

the stabbing. Moreover, Byrd ignores the fact that he hit Belcher in the head

before he began to stab her, which caused Belcher pain independent of the

stabbing. Therefore, there is no reasonable possibility that the jury used the

evidence proving the elements of attempted murder to also establish the

elements of burglary. See Davis, 770 N.E.2d at 324. We hold that Byrd’s

convictions do not violate double jeopardy principles.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 9 of 10 [17] Affirmed.

Crone, J., and Pyle, J., concur.

Court of Appeals of Indiana | Memorandum Decision 71A05-1710-CR-2288 | July 20, 2018 Page 10 of 10