MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any May 21 2020, 8:55 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
APPELLANT PRO SE ATTORNEY FOR APPELLEE Tyrion L. McNair Sierra A. Murray Fort Wayne, Indiana Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyrion L. McNair, May 21, 2020 Appellant-Defendant, Court of Appeals Case No. 19A-CR-491 v. Appeal from the Allen Superior Court State of Indiana, The Honorable Frances C. Gull, Appellee-Plaintiff, Judge The Honorable Wendy W. Davis, Judge The Honorable Samuel R. Keirns, Magistrate Trial Court Cause Nos. 02D05-1807-MR-12 02D04-1708-F6-1009
Robb, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 1 of 19 Case Summary and Issues [1] Following a jury trial, Tyrion McNair was found guilty of murder and, after the
enhancement phase of trial, he was also found guilty of using a firearm in the
commission of a felony. The trial court sentenced McNair to serve sixty-five
years in the Indiana Department of Correction (“DOC”), enhanced by twenty
years for using a firearm in the commission of a felony. McNair appeals pro se,
raising the following restated issues for our review: (1) whether the trial court
erred in denying his Criminal Rule 4(B) petition for discharge, (2) whether the
trial court abused its discretion by excluding evidence, and (3) whether the State
presented sufficient evidence to support his conviction for murder.1 We
conclude that the trial court properly denied McNair’s Rule 4(B) petition for
discharge and that McNair waived appellate review of any alleged error in the
exclusion of evidence. We also conclude that the evidence is sufficient to
support McNair’s murder conviction. Accordingly, we affirm.
Facts and Procedural History [2] The facts most favorable to the verdict are as follows. Jabriel Vaughn, Joshua
Smiley, and McNair grew up in the same neighborhood and have known each
1 At the time of this offense, McNair was on probation in a separate case. After McNair was convicted of this offense, his probation in that case was revoked. McNair filed a notice of appeal from the order revoking probation, see Appellee’s Appendix, Volume 2 at 2-5, and this court granted McNair’s request to consolidate the probation revocation appeal with the instant one, see [Appellant’s Appendix] Volume 2 at 14. However, McNair’s appellate brief does not present an argument regarding his probation revocation and therefore, he has waived the issue for appeal. See Davis v. State, 835 N.E.2d 1102, 1113 (Ind. Ct. App. 2005) (noting that failure to present a cogent argument constitutes waiver of the issue for appellate review), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 2 of 19 other for a long time. On March 31, 2018, they spent the day hanging out,
smoking marijuana, and driving around in a silver Hyundai Sonata rented in
Vaughn’s name and paid for by McNair. That evening, Vaughn, Smiley, and
McNair went to Coliseum Apartments2 to purchase some marijuana from a
mutual friend, Javon Burnett. When they arrived, Burnett met them at the car,
engaged in friendly conversation, and gave them the marijuana. After receiving
the marijuana, they left; Smiley was dropped off at his apartment, and Vaughn
and McNair went to Vaughn’s mother’s house.
[3] Around 1:00 a.m. on April 1, Vaughn and McNair returned to Smiley’s
apartment. Vaughn had his Glock nine-millimeter handgun with an extended
magazine which allowed the handgun to carry thirty bullets, including one in
the chamber. See Transcript, Volume 2 at 211. The three smoked marijuana and
later fell asleep. Vaughn went to sleep with his handgun on his lap. Smiley
woke up around 8:00 a.m. and heard McNair arguing on the phone with the
mother of his children, Tierra Smith. Vaughn was still asleep with his handgun
on his lap. When McNair got off the phone, he was very upset and told Smiley,
“[L]et’s go get some weed.” Id. at 159. Although Smiley had marijuana,
McNair insisted they get some from Burnett.
2 Throughout the trial, Coliseum Apartments was referred by multiple names, including Parnell Park Apartments and Summit Apartments. For the purpose of this appeal, we will refer to it as “Coliseum Apartments.”
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 3 of 19 [4] Smiley contacted Burnett and they agreed to meet at Coliseum Apartments.
Before leaving Smiley’s apartment, McNair grabbed the handgun from the still-
sleeping Vaughn’s lap. Smiley drove the silver Sonata with McNair as the
passenger. When they arrived at Coliseum Apartments, Burnett was not there
yet. While they were waiting, McNair told Smiley that “some stripper females
overheard [that Burnett] was supposed to kill [them] for somebody else.” Id. at
163. Smiley did not believe McNair even though McNair said “he was for
real[.]” Id. McNair told Smiley to open the trunk and then walked to the back
of the car. Smiley thought he was “grabbing something out” of the trunk but
was not sure. Id. at 164. Smiley remained in the car, playing on his phone.
Shortly after McNair exited the car, Smiley looked up and saw a black car
leaving the area. Triana Derrick, Burnett’s girlfriend, owned a black car and
testified that she had dropped Burnett off at Coliseum Apartments that
morning.
[5] After the black car pulled away, Smiley saw McNair come from the back of the
car, leaving the trunk open, and run between two apartment buildings. See id. at
165. Smiley heard multiple gunshots and approximately thirty to sixty seconds
later, McNair came running back to the silver Sonata. McNair closed the trunk,
entered the passenger side of the car, and told Smiley to drive, directing him to
Smith’s house. When asked at trial if he “pretty well [knew] what happened at
that point[,]” Smiley agreed. Id. at 166. While driving to Smith’s house,
McNair was “panicking” because he could not find his phone and began using
Smiley’s. Id. at 175. Before arriving, McNair unloaded approximately thirteen
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 4 of 19 bullets from Vaughn’s handgun and threw them out the window. When they
arrived at Smith’s, McNair took a shower and then McNair and Smiley drove
back to Smiley’s apartment in Smith’s car, leaving the silver Sonata at her
house. Smiley saw McNair with the handgun as the two went back to Smiley’s
place; Smiley went inside where Vaughn was still sleeping but McNair drove
away. He later returned to Smiley’s and told Vaughn that the rental car and his
handgun were both “gone.” Id. at 217.
[6] At approximately 10:00 that morning, shortly after dropping Burnett off at
Coliseum Apartments, Derrick called Burnett’s cell phone. Burnett’s friend
Shawn answered, and Derrick heard “people yelling and screaming in the
background[.]” Id. at 113. Because “nobody was really saying anything,”
Derrick hung up and called back. Id. Shawn again answered and said, “They
just killed [Burnett].” Id. Corryna Bear, a resident of Coliseum Apartments,
testified that as she was getting ready for breakfast, she heard what she thought
were “very, very loud knocks at the window . . . [u]nusually loud[.]” Id. at 118.
She went to the window where she saw an “African-American male,” id., who
was “taller [with] broad shoulders[,]” id. at 125, run from the side of her
building to a car. Bear described the car as “a light color, white, silver” with
tinted windows. Id. at 119. She noticed that the trunk was open and that the
man threw something in the trunk before getting in the passenger side. After the
car left, Bear and her boyfriend heard screaming and went outside where they
saw a body face-down on the ground on the same side of the building Bear had
seen the man run from; Bear called the police.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 5 of 19 [7] Officers of the Fort Wayne Police Department (“FWPD”) were dispatched to
the scene and, upon arrival, they observed a male with gunshot wounds to the
head, who they later identified as Burnett. Burnett died from thirteen gunshot
wounds. FWPD Detective Jeff Marse found a cell phone on the ground in the
parking lot area of Coliseum Apartments. It was later confirmed that the cell
phone belonged to McNair.
[8] On July 6, 2018, the State charged McNair with murder and use of a firearm
during the commission of a felony. After the charges were filed, the following
occurred:
• July 6, 2018 – McNair was arrested.
• July 18, 2018 – At McNair’s initial hearing, he requested an early trial
and was appointed a public defender. McNair’s trial was set to
commence on September 25, 2018.
• July 25, 2018 – McNair’s public defender filed his appearance with the
trial court.
• August 21, 2018 – McNair’s public defender filed a motion to withdraw,
citing a conflict of interest.
• August 22, 2018 – The trial court granted McNair’s public defender’s
motion to withdraw after a hearing. However, the early trial date
remained scheduled for September 25, the sixty-ninth day since McNair’s
early trial request.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 6 of 19 • August 27, 2018 – McNair’s newly appointed public defender filed an
appearance and a motion to continue the early trial.
• September 4, 2018 – McNair appeared for a status of counsel hearing and
personally objected to a continuance. The trial court granted the motion
to continue and re-set McNair’s early trial to commence on January 8,
2019. McNair did not object to the new trial date.
• October 22, 2018 – McNair, by counsel, filed a petition for discharge
pursuant to Criminal Rule 4(B) alleging no delay had been caused by
McNair and the trial court’s calendar was not congested.
• November 14, 2018 – The trial court held a hearing on McNair’s petition
for discharge and denied the motion on November 20, 2018.
[9] Smiley, who already had an unrelated pending federal case, was also charged
with crimes similar to McNair’s for his involvement in Burnett’s murder.
However, Smiley entered into a plea agreement with the State prior to trial and,
as a condition of his plea agreement, he was required to testify at McNair’s
trial. Before trial, the State filed a motion in limine seeking to exclude (among
other things) “[a]ny and all comments with reference to any prior bad acts
allegedly done by any of the State’s witnesses[.]” Appellee’s Appendix, Volume
2 at 7.
[10] McNair’s jury trial commenced on January 8, 2019. Prior to voir dire, the trial
court addressed the State’s motion in limine. The State explained that Smiley’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 7 of 19 state charges related to this case had been resolved and acknowledged that the
plea agreement he received was “fair game for cross examination[.]” Tr., Vol. 2
at 33. The State noted, however, that with respect to Smiley’s pending federal
case, “there have been no representations made to him about anything that may
happen on that case in return for his testimony here[.]” Id. Therefore, the State
argued that information about Smiley’s pending federal case was irrelevant
because the State had no authority to act on it. Defense counsel disagreed and
claimed that Smiley’s pending federal case was relevant to the instant case:
[Counsel]: I believe that it is Mr. Smiley’s intent to use his cooperation and testimony in the state matter to bolster any negotiating position in the pending federal case. I believe his testimony will show that, Judge; and so I believe it is most certainly relevant to show . . . why he is, in fact, testifying.
The Court: Well, he’s testifying because he got a plea agreement that requires him to testify. I took the plea.
[Counsel]: I understand, Your Honor, but I believe that’s an additional factor as to why he is testifying. I believe it is [Smiley’s] and his attorney’s intent to use this plea and his cooperation in this trial in the federal case[.]
Id. at 33-34. The trial court granted the State’s motion in limine and noted,
Well, as it relates to prior bad acts, clearly [Smiley’s] plea of guilty of the State charges regarding this case is fair for you to inquire on cross exam. Pending federal charges and what is hoped to happen down in the federal court is not relevant and will not be admissible[.]
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 8 of 19 Id. at 34. McNair did not raise the issue of Smiley’s pending federal charges
during trial. The jury found McNair guilty as charged. The trial court entered
judgment of conviction for murder and using a firearm in the commission of a
felony and sentenced McNair to serve eighty-five years in the DOC. McNair
now appeals. Additional facts will be supplied as necessary.
Discussion and Decision I. Criminal Rule 4(B) [11] The Sixth Amendment to the United States Constitution and Article 1, section
12 of the Indiana Constitution both protect the right of an accused to a speedy
trial. Cundiff v. State, 967 N.E.2d 1026, 1027 (Ind. 2012). Indiana Criminal Rule
4 implements this constitutional right.3 Id. When a defendant moves for speedy
trial, he invokes the procedures and deadlines of Criminal Rule 4(B). Jenkins v.
State, 809 N.E.2d 361, 366 (Ind. Ct. App. 2004), trans. denied. Criminal Rule
4(B) provides:
If any defendant held in jail on an indictment or an affidavit shall move for an early trial, he shall be discharged if not brought to trial within seventy (70) calendar days from the date of such motion, except where a continuance within said period is had on his motion, or the delay is otherwise caused by his act, or where there was not sufficient time to try him during such seventy (70)
3 As our supreme court has noted, however, reviewing a Criminal Rule 4(B) challenge is “separate and distinct from reviewing claimed violations of those constitutional provisions.” Austin v. State, 997 N.E.2d 1027, 1037 n.7 (Ind. 2013). McNair does not make a constitutional argument.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 9 of 19 calendar days because of the congestion of the court calendar. . . . Provided [], that a trial court may take note of congestion or an emergency without the necessity of a motion, and upon so finding may order a continuance.
Ind. Crim. Rule 4(B)(1) (emphasis added). The overall goal of Criminal Rule 4
“is to provide functionality to a criminal defendant’s fundamental and
constitutionally protected right to a speedy trial.” Austin, 997 N.E.2d at 1037.
“It places an affirmative duty on the State to bring the defendant to trial, but at
the same time is not intended to be a mechanism for providing defendants a
technical means to escape prosecution.” Id. “The determination of whether a
particular delay in bringing a defendant to trial violates the speedy trial
guarantee largely depends on the specific circumstances of the case.” Wheeler v.
State, 662 N.E.2d 192, 193 (Ind. Ct. App. 1996). When reviewing Criminal
Rule 4 claims, we review questions of law de novo and the trial court’s factual
findings for clear error. Mefford v. State, 51 N.E.3d 327, 333 (Ind. Ct. App.
2016). “Clear error is that which leaves us with a definite and firm conviction
that a mistake has been made.” Austin, 997 N.E.2d at 1040 (quotation omitted).
We neither reweigh the evidence nor judge the credibility of the witnesses;
instead, we consider only the probative evidence and reasonable inferences
supporting the judgment. Id.
[12] McNair contends that the trial court erred in denying his petition for discharge
pursuant to Rule 4(B), claiming that he was not brought to trial within the
seventy-day time period. McNair was arrested on July 6, 2018. On July 18,
McNair had his initial hearing, where he personally made his request for an
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 10 of 19 early trial; therefore, the seventy-day clock began to run on that date and would
have expired on September 26, 2018. The trial court set McNair’s trial to
commence on September 25, a date within the seventy-day period. On August
21, 2018, McNair’s counsel filed a motion to withdraw after realizing he had a
conflict of interest; the trial court granted the motion the next day. However,
the trial court confirmed that McNair’s early trial would still commence on
September 25. On August 27, McNair’s newly appointed counsel filed an
appearance and a motion for continuance, claiming he would be unable to
adequately prepare to represent McNair in a murder trial in less than thirty
days. Over McNair’s personal objection, the trial court granted the motion for
continuance and re-set McNair’s trial for January 8, 2019 (a date that exceeded
the seventy-day period). There is no indication that McNair objected to the
January trial date as being an unreasonable delay.
[13] McNair is not entitled to discharge under Rule 4(B) for at least two reasons.
First, when a defendant seeks an early trial under Rule 4(B), he is required to
maintain a position which is reasonably consistent with his speedy trial request;
therefore, he must object “at his earliest opportunity, to a trial setting that is
beyond the seventy-day time period.” Hill v. State, 777 N.E.2d 795, 797-98 (Ind.
Ct. App. 2002) (opinion on reh’g), cert. denied, 540 U.S. 832 (2003). “A
defendant who permits the court, without objection, to set a trial date outside
the 70-day limit is considered to have waived any speedy trial request.” Hahn v.
State, 67 N.E.3d 1071, 1080 (Ind. Ct. App. 2016) (citation omitted), trans.
denied. McNair abandoned his request for a speedy trial when he failed to object
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 11 of 19 to a trial date beyond the seventy-day period. Cf. Goudy v. State, 689 N.E.2d
686, 691 (Ind. 1997) (holding that the defendant waived his earlier request for a
speedy trial by failing to object to a pre-trial hearing set beyond the seventy-day
limit).
[14] Second, although the crux of McNair’s argument is that he personally objected
to his defense counsel’s request for a continuance and should not be charged
with the delay because he was ready to proceed with trial, the law is clear that
once counsel is appointed, a defendant speaks to the trial court through counsel
and the trial court is not required to respond to a defendant’s request or
objection. Underwood v. State, 722 N.E.2d 828, 832 (Ind. 2000). In Underwood,
the court held that the delay from appointed counsel’s request for a
continuance, where the defendant objected to the request, was nonetheless
attributable to the defendant. Id. “To require the trial court to respond to both
[d]efendant and counsel would effectively create a hybrid representation to
which [d]efendant is not entitled.” Id. Because McNair was represented by
counsel, the trial court was free to disregard McNair’s personal objection to the
continuance. Therefore, the delay from such continuance was attributable to
McNair through the actions of his counsel.
[15] McNair’s frustration in his trial being delayed when he personally felt prepared
to proceed is understandable; however, it is the trial court’s prerogative,
particularly in a murder case, to assess the challenges of a given situation and
evaluate the necessity of delaying a trial. McGowan v. State, 599 N.E.2d 589, 592
(Ind. 1992) (ruling that no violation of Criminal Rule 4(B) occurred even
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 12 of 19 though the defendant personally objected to a continuance because it was
within the trial judge’s discretion to decide that newly appointed counsel
required more time to adequately prepare). McNair’s newly appointed defense
counsel averred that to effectively represent McNair in his murder trial, he
needed more than thirty days to familiarize himself with the complex issues of
the case and develop a strategy to defend McNair. Denying the motion to
continue might have “impinged [McNair’s] right to representation by effective
counsel and would have placed assigned counsel in a difficult if not impossible
situation.” Roseborough v. State, 625 N.E.2d 1223, 1225 (Ind. 1993) (holding no
violation of Criminal Rule 4(B) where the trial judge extended the trial date
after newly appointed counsel explained that he needed further time to prepare
for a murder case). The trial court properly exercised its prerogative to continue
the trial date under these circumstances. Accordingly, the trial court did not err
in denying McNair’s petition for discharge.4
4 McNair argued in his petition for discharge that his newly appointed counsel should not have been in a position to file a motion to continue because his previous counsel did not actually have a conflict and should not have been allowed to withdraw. McNair does not advance this argument on appeal, however, so even if it had merit, we would be unable to grant him relief as we may only reverse on a ground raised by the appellant. Waiver notwithstanding, although withdrawal of counsel might not result in the defendant being charged with the delay, including where it does not appear the defendant caused the withdrawal, cf. Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996) (noting that if a defendant’s actions cause the withdrawal then he is charged with the delay), it could still be a reason for extending the trial date, see State v. Love, 576 N.E.2d 623, 625 (Ind. 1991) (noting withdrawal of first counsel coupled with second counsel’s lack of preparedness constituted an emergency within the meaning of Criminal Rule 4(B)(1) allowing resetting of trial date within a reasonable time). Such is the case here, where the trial court held a hearing on counsel’s motion to withdraw and accepted counsel’s position that he had a conflict of interest. There is no indication that McNair caused or contributed to the conflict, and the trial court did not alter the trial date until new counsel alleged he would have insufficient time to prepare.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 13 of 19 II. Exclusion of Evidence [16] Our standard of review in this area is well-settled. We review the admission or
exclusion of evidence for an abuse of discretion. Troutner v. State, 951 N.E.2d
603, 611 (Ind. Ct. App. 2011), trans. denied. An abuse of discretion occurs when
a trial court’s decision is clearly against the logic and effect of the facts and
circumstances before it. Iqbal v. State, 805 N.E.2d 401, 406 (Ind. Ct. App. 2004).
Generally, errors in the exclusion of evidence are harmless unless they affect the
substantial rights of a party. Redding v. State, 844 N.E.2d 1067, 1069 (Ind. Ct.
App. 2006). We assess the probable impact of the evidence on the trier of fact to
determine if an evidentiary ruling affected a party’s substantial rights. Id.
[17] Prior to trial, the trial court granted the State’s motion in limine to exclude any
evidence of prior bad acts allegedly committed by any of its witnesses. See Tr.,
Vol. 2 at 34; see also Appellee’s App., Vol. 2 at 7. McNair now argues that the
trial court erred by excluding evidence of Smiley’s pending federal case. He
contends that Smiley’s cooperation in the instant case could have had an impact
on his federal case and therefore, Smiley would have a reason to fabricate his
testimony. See Amended Brief of Appellant at 14. The State responds that
McNair failed to object, to make an offer of proof, or to otherwise challenge the
trial court’s ruling on the motion in limine during trial and therefore, waived
any claim of error. We agree with the State.
[18] “A ruling on a motion in limine does not determine the ultimate admissibility
of evidence; that determination must be made by the trial court in the context of
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 14 of 19 the trial itself.” Prewitt v. State, 761 N.E.2d 862, 871 (Ind. Ct. App. 2002).
Therefore, only trial objections preserve a claim of error for appellate review.
Brown v. State, 783 N.E.2d 1121, 1125 (Ind. 2003). According to Evidence Rule
103(a)(2), a party may only claim error in a ruling to exclude evidence if the
error affects a substantial right of the party and the party “informs the court of
its substance by an offer of proof, unless the substance was apparent from the
context.” The purpose of an offer of proof is to convey the point of the witness’s
testimony and provide the trial court the opportunity to reconsider the earlier
evidentiary ruling. State v. Wilson, 836 N.E.2d 407, 409 (Ind. 2005). “To
accomplish these two purposes, an offer of proof must be sufficiently specific to
allow the trial court to determine whether the evidence is admissible and to
allow an appellate court to review the correctness of the trial court’s ruling and
whether any error was prejudicial.” Id.
[19] Here, as the proponent of evidence that the trial court had preliminarily
excluded on the State’s motion in limine, it was incumbent upon McNair to
reassert his position during Smiley’s trial testimony. An offer of proof may or
may not have been necessary, as it appears the substance and relevance of the
excluded testimony would have been apparent to the trial court based upon the
discussions surrounding the motion in limine. Nonetheless, we need not decide
whether an offer of proof was required because McNair’s failure to raise the
issue at all during trial to give the trial court the opportunity to revisit its earlier
decision renders any claimed error unavailable on appeal. See Winn v. State, 748
N.E.2d 352, 359 (Ind. 2001) (holding, where the trial court granted the State’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 15 of 19 motion in limine seeking to exclude certain evidence, that defendant’s failure to
direct the court on appeal to any offer of proof “or other action taken during
trial to raise this [evidentiary] question” meant the exclusion of the evidence
was not an available issue on appeal). Thus, we may only address the issue if it
rises to the level of fundamental error. Young v. State, 746 N.E.2d 920, 924 (Ind.
2001). But McNair has failed to allege fundamental error in his appellate brief.5
See Bowman v. State, 51 N.E.3d 1174, 1179 (Ind. 2016) (finding waiver of
fundamental error claim for failure to raise it in initial appellate brief).
Therefore, McNair’s claim that the trial court erred in excluding evidence is
waived and unavailable for review.
III. Sufficiency of the Evidence [20] McNair next argues that the State failed to present sufficient evidence to
support his murder conviction. When reviewing the sufficiency of the evidence
supporting a conviction, we neither reweigh the evidence nor judge the
credibility of witnesses. Purvis v. State, 87 N.E.3d 1119, 1124 (Ind. Ct. App.
2017). We consider only the evidence most favorable to the verdict and any
reasonable inferences drawn therefrom. Id. “We will affirm if there is
substantial evidence of probative value such that a reasonable trier of fact could
5 The “fundamental error exception is extremely narrow, and applies only when the error constitutes a blatant violation of basic principles, the harm or potential for harm is substantial, and the resulting error denies the defendant fundamental due process.” Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013) (citation and internal quotations omitted).
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 16 of 19 have concluded the defendant was guilty beyond a reasonable doubt.” Bailey v.
State, 907 N.E.2d 1003, 1005 (Ind. 2009).
[21] A person who knowingly or intentionally kills another human being commits
murder, a felony. Ind. Code § 35-42-1-1(1). Therefore, to obtain a conviction of
murder in this case, the State was required to prove beyond a reasonable doubt
that: (1) McNair (2) knowingly or intentionally (3) killed Burnett. Ind. Code §
35-41-4-1(a) (stating the standard of proof). A conviction for murder may be
based entirely on circumstantial evidence, Sallee v. State, 51 N.E.3d 130, 134
(Ind. 2016), and the circumstantial evidence need not overcome every
reasonable hypothesis of innocence; instead, “[i]t is enough if an inference
reasonably tending to support the verdict can be drawn from the circumstantial
evidence.” Moore v. State, 652 N.E.2d 53, 55 (Ind. 1995).
[22] Here, the State presented sufficient evidence to the jury to support McNair’s
conviction for murder. On the morning of April 1, McNair told Smiley that he
wanted to get marijuana from Burnett despite Smiley already having some.
Before leaving to meet Burnett, McNair retrieved Vaughn’s handgun. Smiley
and McNair then drove the silver Sonata to meet Burnett. When they arrived,
McNair told Smiley that he believed that Burnett was going to kill them.
McNair then told Smiley to pop the trunk and walked to the back of the car.
Burnett arrived and walked toward the back of the apartments. McNair then
ran in the direction Burnett had gone. Seconds later, Smiley heard several
gunshots and then saw McNair run back to the silver Sonata. Several apartment
residents also heard gunshots and saw a man run back to a light-colored car that
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 17 of 19 quickly left the area. While Smiley drove them away from the apartment
complex, Smiley observed McNair unloading the bullets from Vaughn’s
handgun and tossing approximately thirteen bullets out the window. McNair’s
cellphone was also discovered at the scene of the crime. Moreover, the State
presented evidence to the jury that McNair took extensive steps to conceal his
involvement in Burnett’s death by showering immediately afterward, changing
vehicles, and getting rid of the silver Sonata Smiley and McNair drove to the
apartment complex and Vaughn’s handgun that McNair took to the scene.
Though the handgun was not recovered, Stacey Hartman, a firearm examiner,
confirmed that the bullets that killed Burnett all came from the same handgun
and that the type of handgun that Vaughn owned (a Glock nine-millimeter)
could have fired those bullets. See Tr., Vol. 3 at 57, 59-60. Although no one
directly identified McNair as the shooter, this is a classic case of circumstantial
evidence sufficient for a reasonable trier of fact to conclude that McNair was
guilty beyond a reasonable doubt. See, e.g., Lacey v. State, 755 N.E.2d 576, 578
(Ind. 2001) (holding that the State presented sufficient circumstantial evidence
to support the defendant’s conviction for felony murder although no one
identified him and no fingerprints linked him to the crime).
[23] McNair denies that he was the person who committed the crime, claiming that
he did not match the description of the shooter and that the windows in the
vehicle he was riding in were not tinted, as witnesses reported. However,
McNair’s argument is merely an invitation for us to reweigh the evidence and
reassess witness credibility – an invitation that we cannot accept. See Purvis, 87
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 18 of 19 N.E.3d at 1124. Based on the foregoing, the State presented sufficient evidence
to support McNair’s murder conviction.
Conclusion [24] The trial court did not err in denying McNair’s Criminal Rule 4(B) petition for
discharge and McNair waived appellate review of any alleged error in the
exclusion of evidence of Smiley’s pending federal case. Additionally, the State
presented sufficient evidence to support McNair’s murder conviction.
Accordingly, we affirm.
[25] Affirmed.
May, J., and Vaidik, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-491 | May 21, 2020 Page 19 of 19