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.
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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,
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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
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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.
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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).
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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
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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.
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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.
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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.
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[17] Affirmed.
Crone, J., and Pyle, J., concur.
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