FILED Nov 22 2023, 9:11 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Paul J. Podlejski Theodore E. Rokita Anderson, Indiana Attorney General of Indiana Justin F. Roebel Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Zachary W. Hileman, November 22, 2023 Appellant-Defendant, Court of Appeals Case No. 23A-CR-518 v. Appeal from the Madison Circuit Court State of Indiana, The Honorable Angela Warner Appellee-Plaintiff. Sims, Judge Trial Court Cause No. 48C01-2110-MR-2746
Opinion by Judge Riley. Judges Crone and Mathias concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 1 of 16 STATEMENT OF THE CASE [1] Appellant-Defendant, Zachary Wayne Hileman (Hileman), appeals his
conviction for murder, a felony, Ind. Code § 35-42-1-1(1), and carrying a
handgun without a license, a Class A misdemeanor, I.C. § 35-47-2-1.
[2] We affirm.
ISSUES [3] Hileman presents this court with two issues on appeal, which we restate as
follows:
(1) Whether the trial court abused its discretion by denying Hileman’s
proffered jury instructions on lesser-included offenses when the proposed
instructions were not supported by the evidence presented; and
(2) Whether the trial court abused its discretion by admitting certain
evidence indicating that Hileman was selling marijuana on the night of
the murder.
FACTS AND PROCEDURAL HISTORY [4] In the early morning of October 3, 2021, Shane Clark (Shane) was driving his
vehicle in Anderson, Indiana, with his brother, Adrian Clark (Adrian), seated in
the passenger seat and with Adrian’s friend, Hileman, seated in the backseat
behind Shane. After Hileman sold some marijuana at two separate residences
and while he was arranging other potential marijuana sales that night through
Facebook messages, Shane was driving in the vicinity of the intersection
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 2 of 16 between Broadway Street and East Webster Street, when he failed to yield the
right of way and nearly collided with a motorcycle. Shane “stomp[ed]” on his
brakes to avoid the collision and then continued driving. (Transcript Vol. I, p.
178). The motorcycle, ridden by Raymond Waymire (Waymire) with Jacklyn
Jolliff as a passenger, swerved to avoid crashing into Shane’s vehicle. After the
near miss, Waymire circled around for a few blocks and caught up with Shane’s
vehicle at a stop sign. The motorcycle was loud and Waymire was driving
pretty quickly to catch up with Shane’s car.
[5] At the stop sign, Waymire parked his motorcycle on the side of the road and
walked over to Shane’s vehicle. Waymire approached Shane’s window, which
was cracked open slightly, and verbally confronted him about not yielding at
the intersection. Shane, who mistakenly believed that Waymire had
disregarded the stop sign, responded back. Waymire then approached the
backseat window, which was rolled down. Shane and Adrian testified that
Waymire leaned into the window and hit Hileman on the side of the face.
Shane stated that he “heard the sound of something connecting” and Adrian
noted that Waymire punched Hileman “in the middle, in the side of the face.”
(Tr. Vol. I, pp. 186, 237). Waymire then stepped back from the vehicle.
Hileman exclaimed, “What the fuck. He hit me.” (Tr. Vol. I, p. 188).
Hileman took his gun which was lying next to him on the backseat and shot
Waymire in the chest. The bullet pierced Waymire’s heart, right lung, and
pulmonary trunk. Waymire walked back to the motorcycle, fell to the ground,
and was later declared dead at the scene. The entire interaction lasted
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 3 of 16 approximately six seconds. Immediately after the shooting, Shane drove away
from the scene and took Hileman home.
[6] Hileman turned himself in less than twenty-four hours after the incident. Prior
to turning himself in, Hileman sent Adrian messages via Facebook in which he
urged Adrian to “say it was self-defense.” (Tr. Vol. I, pp. 73-74). After being
arrested and while he was incarcerated at the Madison County Jail, Hileman
also had a phone conversation with Adrian in which he told Adrian that if the
police talked to him again “make sure not to mention how [Waymire] stepped
back and shit,” and “if you could, man, mention that, that [Waymire] tried
reaching for something in his pocket.” (Exh. Vol. I, p. 70).
[7] On October 7, 2021, the State filed an Information, charging Hileman with
murder, a felony, and carrying a handgun without a license, a Class A
misdemeanor. From January 10 through January 13, 2023, the trial court
conducted a jury trial. During his opening statement, Hileman’s counsel
advised the jury that Hileman had a difficult childhood, that he was small, and
that he had been bullied. He informed the panel that
twice in five or six months prior to the shooting, [Hileman] had been held at gunpoint. Beat and robbed. So he did what [] we hear[d] a lot of the p[ro]spective jurors have done. He armed himself with a handgun for personal protection.
(Tr. Vol. I, p. 98). Based on Hileman’s counsel’s statements of Hileman’s
claims of victimization and the need for self-protection, the State argued that he
had opened the door for the admissibility of evidence that Hileman was dealing
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 4 of 16 marijuana on the night of the shooting. The trial court denied the State’s
argument, concluding that the “prejudicial value [of the marijuana dealing
evidence] outweighs the probative value at this point,” but cautioned that “if
[Hileman] ends up testifying, I think we have a different issue on our hands
given what was presented to the jury.” (Tr. Vol. I, pp. 150-51).
[8] During the State’s case-in-chief, the State sought to introduce images
downloaded from Hileman’s cell phone showing the firearm used in the
shooting along with a large amount of currency, as well as some Facebook
messages in which Hileman discussed drug dealing and carrying the firearm for
protection while dealing. In one Facebook message dated the day before the
incident, Hileman complained about losing his job but advised that he was now
“trappin” and that he was safe because he “keep[s] a pole on me when . . . in
traffic.” (Exh. Vol. I, p. 93). 1 Another Facebook message dated from two
hours before the shooting, in which Hilleman is “trynna get this bud gone,” that
“it’s not bad gas,” and explained the pricing. (Exh. Vol. I, p. 95). 2 A third
Facebook message was a conversation with Shane a few hours before the
shooting, in which Hileman was asking for a ride and offering to sell him some
marijuana. The State argued that the messages were relevant to show that
Hileman was not armed for a legal purpose and to establish his state of mind at
1 A police officer translated that “trappin” referred to dealing drugs and that “pole” referred to a “gun . . . typically a handgun.” (Tr. Vol. III, p. 65). 2 “[B]ud” refers to marijuana and “gas” indicates the quality of the marijuana. (Tr. Vol. III, p. 66).
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 5 of 16 the time of the shooting. Hileman’s counsel objected and claimed that the
evidence was irrelevant, wildly speculative, and only intended “to try and dirty
my client.” (Tr. Vol. III, pp. 32-33, 37). The trial court admitted the photo of
the handgun and the money, the Facebook message with Shane, and the
Facebook messages explaining Hileman’s reason to carry a handgun. The trial
court denied admission of the remaining Facebook messages about drug
dealing.
[9] After the State rested, Hileman commenced his defense. As part of his defense,
Hileman’s aunt, who was his adopted mother, testified that Hileman had been
beaten up on two recent occasions, including one incident at a fair, after which
Hileman required stitches. She informed the jury that after the second incident,
she and her husband talked to Hileman about acquiring a handgun. Hileman
testified in his own defense. During the State’s cross-examination, Hileman
acknowledged without objection that he was selling marijuana during the night
of the shooting. As part of his questioning, the State offered into evidence
additional Facebook messages in which Hileman was selling marijuana around
the time of the incident, and which included a picture of his product. Hileman
denied that the handgun was related to drug dealing and denied that his beating
at the fair was related to him selling marijuana.
[10] After the presentation of the evidence, the parties addressed Hileman’s request
for jury instructions on the lesser-included offenses of voluntary manslaughter,
reckless homicide, and criminal recklessness with a deadly weapon. While
Hileman contended that there was evidence of sudden heat supporting the
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 6 of 16 proffering of a voluntary manslaughter instruction because he was “punched
and embarrassed,” the State objected and argued that Hileman had time for
reflection after being punched. (Tr. Vol. III, p. 191). The trial court denied the
proposed instruction on voluntary manslaughter:
[T]he court really struggles to find that there’s evidence that supports . . . sudden heat in this case, particularly in light of the defendant’s testimony yesterday would give the court really no evidence that would indicate that that’s what happened, that it was a sudden heat situation. [] [S]o the court’s not giving the voluntary manslaughter in this case. The court doesn’t believe the record supports the sudden heat or the voluntary manslaughter in this case.
(Tr. Vol. III, pp. 192-93). With respect to his proposed jury instructions for
reckless homicide and criminal recklessness, Hileman pointed to his testimony
that “his vision was affected, blurred, blacked out, he felt for the gun, raised it
up and fired,” as support for their proffer. (Tr. Vol. III, p. 197). The trial court
denied these proposed instructions without explanation. After receiving the
case and deliberation, the jury found Hileman guilty as charged.
[11] On February 7, 2023, the trial court sentenced Hileman to concurrent sentences
of fifty years for murder and one year for carrying a handgun without a license.
[12] Hileman now appeals. Additional facts will be provided as necessary.
DISCUSSION AND DECISION I. Proposed Jury Instructions
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 7 of 16 [13] Hileman contends that the trial court abused its discretion when it refused to
tender its proffered jury instructions on voluntary manslaughter, reckless
homicide, and criminal recklessness with a deadly weapon. “The purpose of a
jury instruction 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.” Lawson v. State, 199 N.E.3d 829, 838 (Ind. Ct.
App. 2022). We review a trial court’s jury instructions for an abuse of
discretion. Id. On appeal, we review whether a tendered instruction correctly
states the law, whether there is evidence in the record to support giving the
instruction, and whether the substance of the instruction is covered by other
instructions. Id. Instructional errors are harmless where a conviction is clearly
sustained by the evidence and the instruction would not likely have impacted
the jury’s verdict, and we will reverse a conviction only if the appellant
demonstrates that the error prejudiced his substantial rights. Keister v. State, 203
N.E.3d 548, 552 (Ind. Ct. App. 2023). In other words, an instructional error
will result in reversal only when we “cannot say with complete confidence” that
a reasonable jury would have returned a guilty verdict even if the instruction
had not been given. Id.
[14] In Wright v. State, 658 N.E.2d 563 (Ind. 1995), our supreme court developed a
three-part test that trial courts should perform when called upon by a party to
instruct on a lesser-included offense to the crime charged. See also Webb v. State,
963 N.E.2d 1103, 1106 (Ind. 2012). First, the trial court must compare the
statute defining the crime charged with the statute defining the alleged lesser-
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 8 of 16 included offense to determine if the alleged lesser-included offense is inherently
included in the crime charged. Wright, 658 N.E.2d at 566. Second, if a trial
court determines that an alleged lesser-included offense is not inherently
included in the crime charged under step one, then it must determine if the
alleged lesser-included offense is factually included in the crime charged. Id. at
567. If the alleged lesser-included offense is neither inherently nor factually
included in the crime charged, the trial court should not give an instruction on
the alleged lesser-included offense. Id. Third, if a trial court has determined
that an alleged lesser-included offense is either inherently or factually included
in the crime charged, “it must look at the evidence presented in the case by both
parties” to determine if there is a serious evidentiary dispute about the element
or elements distinguishing the greater from the lesser offense and if, in view of
this dispute, a jury could conclude that the lesser offense was committed but not
the greater. Id. “[I]t is reversible error for a trial court not to give an
instruction, when requested, on the inherently or factually included lesser
offense” if there is such an evidentiary dispute. Id.
A. Voluntary Manslaughter
[15] While both parties agree that voluntary manslaughter is the lesser-included
offense of murder, the parties disagree on whether the evidence supported the
proffering of the voluntary manslaughter instruction. See Watts v. State, 885
N.E.2d 1228, 1232 (Ind. 2008) (voluntary manslaughter is an included offense
of manslaughter). Although voluntary manslaughter is a lesser-included offense
of murder, it is not a typical lesser-included offense, because instead of requiring Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 9 of 16 the State to prove less than all the elements of murder, it requires the State to
prove all of the elements of murder and to disprove the existence of sudden heat
when there is any appreciable evidence of such in the record. Roberson v. State,
982 N.E.2d 452, 457 (Ind. Ct. App. 2013). Additionally, a conviction for
voluntary manslaughter constitutes an acquittal of murder. Id. The absence of
sudden heat is not an element of murder, and a jury ordinarily does not have to
be instructed that the State has the burden of disproving the existence of sudden
heat in order to gain a murder conviction. Massey v. State, 955 N.E.2d 247, 255
n. 4 (Ind. Ct. App. 2011). If, however, the record contains any appreciable
evidence of sudden heat, an instruction on voluntary manslaughter is justified.
Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991). Additionally, such evidence
may arise from either the State’s or the defendant’s evidence; the defendant
does not bear the burden of placing the issue of sudden heat into question.
Dearman v. State, 743 N.E.2d 757, 761 (Ind. 2001).
[16] “‘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.” Suprenant v. State, 925 N.E.2d 1280, 1282 (Ind. Ct. App. 2010),
trans. denied. Words alone do not constitute sufficient provocation to warrant a
jury instruction on voluntary manslaughter, especially when the words were not
intended to provoke the defendant, such as fighting words. Id. Additionally,
any alleged provocation must be such that it would obscure the reason of an
“ordinary man,” which is an objective as opposed to a subjective standard. Id.
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 10 of 16 at 1282-83. Unlike the right to self-defense, which ceases to exist once a danger
has passed, “sudden heat can survive for a while beyond the act of
provocation.” Roark, 573 N.E.2d at 883.
[17] Here, we cannot say that the incident prevented deliberation and rendered
Hileman incapable of cool reflection. See Suprenant, 925 N.E.2d at 1282.
Testimony reveals that Waymire’s motorcycle was loud and revving while
trying to catch up with Shane’s vehicle after the near collision. After catching
up with Shane’s car at a stop sign, Waymire parked his motorcycle and walked
over to the vehicle. The three occupants of the car noticed Waymire
approaching. While Waymire was confronting Shane, and while Hileman felt
“scared the whole time once [he] seen [sic] him get off the bike,” Hileman did
not close the car’s window but instead left it open. (Tr. Vol. III, p. 130). After
confronting Shane verbally, Waymire moved to the open passenger side
window, which was where Hileman was sitting. According to Shane, Adrian,
and Hileman, Waymire reached into the window and struck Hileman on the
side of the face. Waymire then stepped back from the vehicle. Hileman
exclaimed, “What the fuck. He hit me,” and only then took the gun which was
lying next to him on the backseat and shot Waymire in the chest. (Tr. Vol. I, p.
188).
[18] This is not a situation where Hileman was unapprised of the developing
situation. He heard the motorcycle approach, he noticed Waymire walk up to
the vehicle, and he saw Waymire verbally accost Shane. See id. at 1284 (“words
alone [will not] constitute sufficient provocation”). Despite claiming to be in
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 11 of 16 fear, Hileman did not close his window. Yet, it was not until Waymire
punched Hileman, stepped back, and Hileman realized that he had been
punched, that finally Hileman reached for his weapon and fatally shot
Waymire. Although the entire encounter lasted a mere six seconds, the
sequence of events allowed Hileman time to make a deliberate decision to reach
for his weapon and to shoot Waymire. We have previously found that efforts
to retrieve a weapon prior to killing reflects that the defendant was “capable of
deliberation and cool reflection.” Santana v. State, 688 N.E.2d 1275, 1279 (Ind.
Ct. App. 1997) (Santana retrieved weapon from his home before shooting).
While in Santana, the premeditation lasted approximately thirty minutes for
Santana to retrieve his weapon and shoot the victim, our supreme court has
recognized that premeditation—“the deliberate formation of an intent to
perform a future act,”—“may be as instantaneous as successive thoughts,” and
the precise duration between the inception of intent and the killing “need not be
appreciable to constitute premeditation.” Carmack v. State, 200 N.E.3d 452,
459-60 (Ind. 2023). Here, the escalating nature of the situation afforded
Hileman time for “cool reflection.” See Suprenant, 925 N.E.2d at 1282.
Accordingly, we conclude that a voluntary manslaughter instruction was not
supported by the evidence and was properly refused by the trial court.
B. Reckless Homicide and Criminal Recklessness with a Deadly Weapon
[19] Focusing on the mens rea element of reckless homicide and criminal recklessness
with a deadly weapon, Hileman contends that the trial court abused its
discretion in refusing to tender these instructions because “[i]t is reasonably
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 12 of 16 plausible that the jury could have found that Hileman never intended to kill the
victim; that he only intended to use lesser than deadly force, or [to] scare
Waymire away.” (Appellant’s Br. p. 22).
[20] Reckless homicide and criminal recklessness require a reckless mens rea, while
murder requires a knowing or intentional mens rea. Griffing v State, 963 N.E.2d
685, 691 (Ind. Ct. App. 2012). I.C. §§ 35-42-1-1 (murder), -5 (reckless
homicide), -2-2 (criminal recklessness). As the only difference between reckless
homicide and murder is the mens rea element, reckless homicide is an inherently
included offense of murder. Heavrin v. State, 675 N.E.2d 1075, 1079 (Ind.
1996). Likewise, as the “culpability [is] the sole distinguishing element,”
criminal recklessness is an inherently lesser-included offense of murder.
Hamilton v. State, 783 N.E.2d 1266, 1269 (Ind. Ct. App. 2003), trans. denied.
[21] In Webb v. State, 963 N.E.2d 1103, 1108 (Ind. 2012), our supreme court
determined that the trial court abused its discretion by refusing to give the
proposed reckless homicide instructions because there was a serious evidentiary
dispute as to whether the defendant acted knowingly or recklessly as evidence
had been admitted that the gun used to shoot the victim had been unloaded at
different points in the evening, and that individuals had been playing with the
gun before the victim was shot. In Fisher v. State, 810 N.E.2d 674, 680 (Ind.
2004), the court concluded that the jury should have been instructed on reckless
homicide where the victim was shot once and there was evidence that the
defendant was playing around with the gun.
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 13 of 16 [22] Here, the evidence reflects that Hileman shot Waymire through the heart after
Waymire had stepped away from the car. Hileman claims that his vision was
blurry, that he did not have time to aim the gun, and that he just fired in the
direction of Waymire and did not know if he hit him or not. A person
“‘knowingly’” kills when he is ‘aware of a high probability’ that his conduct
might kill.” Jones v. State, 966 N.E.2d 1256, 1258 (Ind. 2012). The “protracted
nature” of shooting someone at close range could not have occurred “without
an awareness that his actions could result in [] death.” Id. See also, McEwen v.
State, 695 N.E.2d 79, 85-86 (Ind. 1998) (reckless homicide instruction properly
denied when victim was stabbed in the chest one time, piercing the heart
because a stabbing near the heart allows an inference of knowing or intentional
killing). Unlike Webster and Fisher, there is no evidence suggesting that
Hileman thought the gun was unloaded or that he somehow lacked the
knowledge that his actions could kill Waymire. Based on the facts before us,
Hileman’s conduct point towards a knowing or intentional killing, and the trial
court properly refused to instruct the jury on the lesser-included offenses of
reckless homicide and criminal recklessness.
II. Admissibility of Evidence
[23] Next, Hileman contends that the trial court abused its discretion by admitting
“evidence regarding [Hileman] selling marijuana.” (Appellant’s Br. p. 22). We
review a trial court’s decision on the admission of evidence for an abuse of the
trial court’s discretion. Eaton v. State, 111 N.E.3d 1039, 1043 (Ind. Ct. App.
2018). We will reverse “only where the decision is clearly against the logic and
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 14 of 16 effect of the facts and circumstances.” Id. We do not reweigh the evidence and
consider conflicting evidence in a light most favorable to the trial court’s ruling.
Id.
[24] Focusing on Evidentiary Rules 403 and 404(b), Hileman contends that the
“repetitious drumbeat of testimony and comments regarding [his] involvement
in the sale of marijuana and its prejudicial effect,” served to impress on the jury
that Hileman’s involvement with the sale of marijuana would “naturally give
rise to the inference that [he] is of bad character.” (Appellant’s Br. pp. 23,24).
Hileman further argues that the “onslaught of [evidentiary] harpoons” during
the State’s closing argument served as the “proverbial ‘nail in the coffin[,]’” as
its probative value was far outweighed by the prejudicial effect it served.
(Appellant’s Br. pp. 24-25).
[25] “An evidentiary harpoon occurs when the State deliberately places inadmissible
evidence before the jury to prejudice the jurors against the defendant.” Turner v.
State, 216 N.E.3d 1179, 1184 (Ind. Ct. App. 2023). However, the State’s
closing argument referred to statements and evidence that had been admitted by
the trial court during the course of the proceedings. As such, the principle of
the evidentiary harpoon is inapplicable because the evidence was presented to
the jury with the approval of the trial court. Besides the generalized statements
of the perceived existence of evidentiary harpoons, Hileman fails to direct this
court to any specific instances of alleged improper admission of the evidence by
the trial court and he fails to develop his argument with specific citations to the
record. “The purpose of our appellate rules, Indiana Appellate Rule 46 in
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 15 of 16 particular, is to aid and expedite review and to relieve the appellate court of the
burden of searching the record and briefing the case.” Miller v. Patel, 212
N.E.3d 639, 657 (Ind. 2023). We will not step in the shoes of the advocate and
fashion arguments on his behalf. Id. “The premise of our adversarial system is
that appellate courts do not sit as self-directed boards of legal inquiry and
research,” but instead are tasked with solving disputes “as arbiters of legal
questions presented and argued by the parties before them.” Id. (citing Carducci
v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)). “We do not exist to answer
every legal question that may exist in the ether; rather, we resolve concrete
issues properly tested through the adversarial process: adequate and cogent
briefing is required for that process to live up to its potential.” Id. Accordingly,
as Hileman fails to present us with a cogent argument pursuant to Indiana
Appellate Rule 46(A)(8), he has waived the issue for our appellate review.
CONCLUSION [26] Based on the foregoing, we hold that the trial court did not abuse its discretion
by denying Hileman’s proffered jury instructions on lesser-includedoffenses.
Additionally, Hileman waived review of the admissibility of certain evidence by
failing to present a cogent argument.
[27] Affirmed.
[28] Crone, J. and Mathias, J. concur
Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 16 of 16