MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 30 2017, 9:14 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew J. Borland Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyron Johnson, June 30, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1608-CR-1896 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1506-MR-7
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 1 of 7 Case Summary [1] Tyron Johnson (“Johnson”) appeals his conviction for Murder, a felony. 1 We
affirm.
Issues [2] Johnson presents two issues for review:
I. Whether the State presented sufficient evidence to establish that Johnson committed Murder rather than Voluntary Manslaughter; and
II. Whether the trial court abused its discretion by admitting into evidence two autopsy photographs with trajectory rods depicting the entrance and exit of bullets.
Facts and Procedural History [3] During the morning of June 12, 2015, Johnson was walking toward his
mother’s Mishawaka home with his girlfriend, Precious Jackson (“Jackson”).
Jackson was carrying her infant son (who had been fathered by Johnson) in a
baby carrier; her three pre-school children were following behind her. The
couple began to engage in a heated argument about their relationship, drawing
the attention of neighbors.
1 Ind. Code § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 2 of 7 [4] Johnson drew a handgun from his waistband and fired six shots. Three of the
shots struck Jackson and she died within minutes. Johnson ran from the scene,
tossing away the gun and shedding his clothing as he fled.
[5] Johnson was located and arrested a few days later. On June 15, 2015, he was
charged with Murder. His jury trial commenced on June 27, 2016. At trial,
Johnson did not deny that he shot and killed Jackson, but argued that he was
guilty of Voluntary Manslaughter rather than Murder because he shot her under
sudden heat. The trial court provided the jury with an instruction on Voluntary
Manslaughter but the jury found Johnson guilty of Murder, as charged. On
July 25, 2016, Johnson was sentenced to sixty years’ imprisonment, with five
years suspended. He now appeals.
Discussion and Decision Sufficiency of the Evidence [6] Johnson concedes that he killed Jackson. However, he asks that we reverse his
Murder conviction because the State failed to present sufficient evidence to
rebut his claim that he acted in sudden heat.
[7] When a human being has been killed because of the knowing or intentional
conduct of another, the starting point that our legislature has provided is the
offense of Murder. See I.C. § 35-42-1-1 (“A person who knowingly or
intentionally kills another human being … commits murder, a felony.”) When
sudden heat exists, that offense is mitigated. See I.C. § 35-42-1-3(b) (“The
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 3 of 7 existence of sudden heat is a mitigating factor that reduces what otherwise
would be murder … to voluntary manslaughter.”)
[8] Although Voluntary Manslaughter is a lesser-included offense of Murder, it is
an atypical example of a lesser-included offense. Watts v. State, 885 N.E.2d
1228, 1232 (Ind. 2008). Sudden heat is not an element of Voluntary
Manslaughter, but, to obtain a Murder conviction, the State must disprove the
existence of sudden heat, beyond a reasonable doubt, when the defendant or the
State has injected that issue. Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).
[9] “Sudden heat” is characterized as anger, rage, resentment, or terror sufficient to
obscure the reason of an ordinary person, preventing deliberation and
premeditation, excluding malice, and rendering a person incapable of cool
reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). More than
“mere words” is required to show sudden heat, and the provocation must be
“sufficient to obscure the reason of an ordinary man,” an objective as opposed
to subjective standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997).
The existence of sudden heat is a classic question of fact to be determined by
the jury. Jackson, 709 N.E.2d at 329.
[10] Johnson testified that he and Jackson were arguing about suspicions of cheating
and that they engaged in mutual yelling and name-calling. He claimed that
they exchanged open handed blows before Jackson hit him with her shoe.
Johnson described the actual shooting in terms suggesting either a tragic
accident or an anger-fueled “blackout.” (Tr. at 277.) According to Johnson’s
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 4 of 7 testimony, he took out his gun because he thought Jackson would then “calm
down,” but, unbeknownst to Johnson, the safety mechanism was off and
Jackson then “rushed him.” (Tr. at 256.) He also testified that he was “so
angry” that he was “not thinking.” (Tr. at 258.) Finally, he asserted that
Jackson “ran up” on him after the first shot and he “blacked out” after the first
couple of shots. (Tr. at 259.)
[11] To the extent that the testimony of accident and anger may be said to have
interjected the issue of sudden heat, the State bore a burden to disprove it. The
State presented testimony from neighbors who heard a verbal argument
immediately before Johnson drew his gun and shot Jackson. None of these
witnesses described a blow with a shoe or provocation beyond mere words.
The State also called as a witness Justin Jurgenson (“Jurgenson”), who had
been incarcerated with Johnson. Jurgenson testified that Johnson had
described the events as a “black out,” but he then “snapped out of it,” and shot
Jackson again and then starting running. (Tr. at 141.) Jurgenson indicated that
the “gist of” Johnson’s confession was that Jackson tried to get up, Johnson
walked over, and shot her again. (Tr. at 144.)
[12] The physical evidence indicated that Johnson emptied his gun; three of the six
shots fired struck Jackson. The gun was examined and found not to be
malfunctioning. The State presented sufficient evidence to permit the jury to
conclude, beyond a reasonable doubt, that Johnson knowingly or intentionally
killed Jackson and did not act in response to provocation sufficient to constitute
sudden heat.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 5 of 7 Photographic Evidence [13] During the forensic pathologist’s testimony, the State sought to introduce into
evidence State’s Exhibits 181 and 182. These were autopsy photographs
Free access — add to your briefcase to read the full text and ask questions with AI
MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be FILED regarded as precedent or cited before any Jun 30 2017, 9:14 am court except for the purpose of establishing the defense of res judicata, collateral CLERK Indiana Supreme Court estoppel, or the law of the case. Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Andrew J. Borland Curtis T. Hill, Jr. Indianapolis, Indiana Attorney General of Indiana Larry D. Allen Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Tyron Johnson, June 30, 2017 Appellant-Defendant, Court of Appeals Case No. 71A03-1608-CR-1896 v. Appeal from the St. Joseph Superior Court State of Indiana, The Honorable Elizabeth C. Appellee-Plaintiff. Hurley, Judge Trial Court Cause No. 71D08-1506-MR-7
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 1 of 7 Case Summary [1] Tyron Johnson (“Johnson”) appeals his conviction for Murder, a felony. 1 We
affirm.
Issues [2] Johnson presents two issues for review:
I. Whether the State presented sufficient evidence to establish that Johnson committed Murder rather than Voluntary Manslaughter; and
II. Whether the trial court abused its discretion by admitting into evidence two autopsy photographs with trajectory rods depicting the entrance and exit of bullets.
Facts and Procedural History [3] During the morning of June 12, 2015, Johnson was walking toward his
mother’s Mishawaka home with his girlfriend, Precious Jackson (“Jackson”).
Jackson was carrying her infant son (who had been fathered by Johnson) in a
baby carrier; her three pre-school children were following behind her. The
couple began to engage in a heated argument about their relationship, drawing
the attention of neighbors.
1 Ind. Code § 35-42-1-1.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 2 of 7 [4] Johnson drew a handgun from his waistband and fired six shots. Three of the
shots struck Jackson and she died within minutes. Johnson ran from the scene,
tossing away the gun and shedding his clothing as he fled.
[5] Johnson was located and arrested a few days later. On June 15, 2015, he was
charged with Murder. His jury trial commenced on June 27, 2016. At trial,
Johnson did not deny that he shot and killed Jackson, but argued that he was
guilty of Voluntary Manslaughter rather than Murder because he shot her under
sudden heat. The trial court provided the jury with an instruction on Voluntary
Manslaughter but the jury found Johnson guilty of Murder, as charged. On
July 25, 2016, Johnson was sentenced to sixty years’ imprisonment, with five
years suspended. He now appeals.
Discussion and Decision Sufficiency of the Evidence [6] Johnson concedes that he killed Jackson. However, he asks that we reverse his
Murder conviction because the State failed to present sufficient evidence to
rebut his claim that he acted in sudden heat.
[7] When a human being has been killed because of the knowing or intentional
conduct of another, the starting point that our legislature has provided is the
offense of Murder. See I.C. § 35-42-1-1 (“A person who knowingly or
intentionally kills another human being … commits murder, a felony.”) When
sudden heat exists, that offense is mitigated. See I.C. § 35-42-1-3(b) (“The
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 3 of 7 existence of sudden heat is a mitigating factor that reduces what otherwise
would be murder … to voluntary manslaughter.”)
[8] Although Voluntary Manslaughter is a lesser-included offense of Murder, it is
an atypical example of a lesser-included offense. Watts v. State, 885 N.E.2d
1228, 1232 (Ind. 2008). Sudden heat is not an element of Voluntary
Manslaughter, but, to obtain a Murder conviction, the State must disprove the
existence of sudden heat, beyond a reasonable doubt, when the defendant or the
State has injected that issue. Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).
[9] “Sudden heat” is characterized as anger, rage, resentment, or terror sufficient to
obscure the reason of an ordinary person, preventing deliberation and
premeditation, excluding malice, and rendering a person incapable of cool
reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). More than
“mere words” is required to show sudden heat, and the provocation must be
“sufficient to obscure the reason of an ordinary man,” an objective as opposed
to subjective standard. See Stevens v. State, 691 N.E.2d 412, 426 (Ind. 1997).
The existence of sudden heat is a classic question of fact to be determined by
the jury. Jackson, 709 N.E.2d at 329.
[10] Johnson testified that he and Jackson were arguing about suspicions of cheating
and that they engaged in mutual yelling and name-calling. He claimed that
they exchanged open handed blows before Jackson hit him with her shoe.
Johnson described the actual shooting in terms suggesting either a tragic
accident or an anger-fueled “blackout.” (Tr. at 277.) According to Johnson’s
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 4 of 7 testimony, he took out his gun because he thought Jackson would then “calm
down,” but, unbeknownst to Johnson, the safety mechanism was off and
Jackson then “rushed him.” (Tr. at 256.) He also testified that he was “so
angry” that he was “not thinking.” (Tr. at 258.) Finally, he asserted that
Jackson “ran up” on him after the first shot and he “blacked out” after the first
couple of shots. (Tr. at 259.)
[11] To the extent that the testimony of accident and anger may be said to have
interjected the issue of sudden heat, the State bore a burden to disprove it. The
State presented testimony from neighbors who heard a verbal argument
immediately before Johnson drew his gun and shot Jackson. None of these
witnesses described a blow with a shoe or provocation beyond mere words.
The State also called as a witness Justin Jurgenson (“Jurgenson”), who had
been incarcerated with Johnson. Jurgenson testified that Johnson had
described the events as a “black out,” but he then “snapped out of it,” and shot
Jackson again and then starting running. (Tr. at 141.) Jurgenson indicated that
the “gist of” Johnson’s confession was that Jackson tried to get up, Johnson
walked over, and shot her again. (Tr. at 144.)
[12] The physical evidence indicated that Johnson emptied his gun; three of the six
shots fired struck Jackson. The gun was examined and found not to be
malfunctioning. The State presented sufficient evidence to permit the jury to
conclude, beyond a reasonable doubt, that Johnson knowingly or intentionally
killed Jackson and did not act in response to provocation sufficient to constitute
sudden heat.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 5 of 7 Photographic Evidence [13] During the forensic pathologist’s testimony, the State sought to introduce into
evidence State’s Exhibits 181 and 182. These were autopsy photographs
showing trajectory rods used by the pathologist to mark the entrance and exit of
bullets into Jackson’s body. Johnson objected that the photographs were “very
graphic” and their prejudicial impact outweighed their probative value. (Tr. at
210.) On appeal, Johnson argues that the photographs had little, if any,
evidentiary value because he had conceded that he fired the shots that caused
Jackson’s death.
[14] Because the admission and exclusion of evidence falls within the sound
discretion of the trial court, the admission of photographic evidence is reviewed
only for an abuse of discretion. Corbett v. State, 764 N.E.2d 622, 627 (Ind.
2002). Relevant evidence, including photographs, may be excluded only if its
probative value is substantially outweighed by the danger of unfair prejudice.
Evidence Rule 403. Even gory or revolting photographs may be admitted if
they are relevant to some material issue or show scenes that a witness could
describe orally. Jackson v. State, 597 N.E.2d 950, 963 (Ind. 1992). Photographs
that depict injuries to a victim are generally relevant and admissible. Custis v.
State, 793 N.E.2d 1220, 1224 (Ind. Ct. App. 2003), trans. denied. However,
when autopsy photographs show the body in an altered state, a concern may
arise that the photographs render the defendant responsible, in the minds of the
jurors, for the cuts, incisions, and indignity of an autopsy. Id. at 1225.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 6 of 7 [15] Here, the pathologist testified that she had examined Jackson’s body and
discovered multiple gunshot wounds; she explained that she had used trajectory
rods to mark the bullet paths. This testimony was sufficient to alleviate any
concern that the jury would consider Johnson responsible for this bodily
alteration. The State offered Exhibits 181 and 182 as visual aids to show the
jury the wounds that the pathologist was describing. The relevance of the
photographs is not lessened because Johnson conceded that he inflicted the
wounds. See Hines v. State, 801 N.E.2d 634, 635 (Ind. 2004) (recognizing the
general principle that the State is entitled to prove its case by evidence of its
own choice and a defendant may not stipulate his way out of the full
evidentiary force of the State’s case). The challenged photographs were
relevant, and their probative value not substantially outweighed by the danger
of unfair prejudice.
Conclusion [16] The State presented sufficient evidence to permit the jury to conclude that
Johnson committed Murder and did not act in sudden heat. Johnson did not
demonstrate that the trial court abused its discretion in the admission of
evidence.
[17] Affirmed.
Vaidik, C.J., and Robb, J., concur.
Court of Appeals of Indiana | Memorandum Decision 71A03-1608-CR-1896| June 30, 2017 Page 7 of 7