Attorney for Appellant
Mark A. Bates
Appellate Public Defender
Lake Superior Court
Crown Point, IN
Attorneys for Appellee
Jeffrey A. Modisett
Attorney General of Indiana
Arthur Thaddeus Perry
Deputy Attorney General
Indianapolis, IN
IN THE
INDIANA SUPREME COURT
DAYTON DUANE EVANS,
Appellant (Defendant below),
v.
STATE OF INDIANA,
Appellee (Plaintiff below).
)
) Supreme Court No.
) 45S00-9809-CR-00508
)
)
)
)
)
)
APPEAL FROM THE LAKE SUPERIOR COURT, CRIMINAL DIVISION
The Honorable James E. Letsinger, Judge
Cause No. 45G02-9506-CF-00145
ON DIRECT APPEAL
May 4, 2000
SULLIVAN, Justice.
Defendant Dayton Duane Evans was convicted of attempted murder and
murder after attacking his ex-girlfriend and killing her new boyfriend. He
appeals claiming the State failed to disprove that he killed in “sudden
heat,” and there was insufficient evidence to support his attempted murder
conviction. He also challenges several rulings by the trial court and the
severity of his sentence. Finding the evidence sufficient to support his
convictions, the trial court’s rulings otherwise proper, and the sentence
within the trial court’s discretion, we affirm.
We have jurisdiction over this direct appeal because the longest
single sentence exceeds 50 years. Ind. Const. art. VII, § 4; Ind.
Appellate Rule 4 (A)(7).
Background
The facts most favorable to the verdict reveal that on June 24, 1995,
Marianne Allen and her new boyfriend, James Harris, were lying together in
bed in Marianne’s home. They awoke to find Marianne’s ex-boyfriend,
Defendant Dayton Duane Evans,[1] standing over them with a knife in each
hand, asking, “Is that the reason you won’t take me back?” When Defendant
moved towards Marianne with a stabbing motion, Harris reacted by throwing a
comforter over her. A melee then ensued between Defendant and Harris,
eventually spilling out of the bedroom, into the hallway, and ending
downstairs with Defendant inflicting multiple stab wounds on Harris,
ultimately killing him.
On July 15, 1998, a jury found Defendant guilty of Murder,[2] and
attempted Murder, [3] a Class A felony. The trial court imposed a 60-year
sentence for murder and a 40-year sentence for attempted murder, with each
sentence to run concurrently.
We will recite additional facts as needed.
I
Defendant first contends that the State failed in its burden of
negating beyond a reasonable doubt his claim that he was acting under
sudden heat when he killed Harris, thereby entitling him to a reversal of
his murder conviction.
Voluntary Manslaughter is a lesser included offense of Murder,
distinguishable by the factor of a defendant having killed, while acting
under sudden heat. Ind. Code § 35-42-1-3 (1993). To establish sudden
heat, the defendant must show “sufficient provocation to engender . . .
passion.” Johnson v. State, 518 N.E.2d 1073, 1077 (Ind. 1988). Sufficient
provocation is demonstrated by “such emotions as anger, rage, sudden
resentment, or terror [that are] sufficient to obscure the reason of an
ordinary person, prevent deliberation and premeditation, and render the
defendant incapable of cool reflection.” Id.
To obtain a conviction for Murder, the State is not required to
negate the presence of sudden heat because “[t]here is no implied element
of the absence of sudden heat in the crime of murder.” Earl v. State, 715
N.E.2d 1265, 1267 (Ind. 1999). However, once a defendant places sudden
heat into issue, the State then bears the burden of negating the presence
of sudden heat beyond a reasonable doubt. McBroom v. State, 530 N.E.2d
725, 728 (Ind. 1988). It may meet this burden by rebutting the defendant’s
evidence or affirmatively showing in its case-in-chief that the defendant
was not acting in sudden heat when the killing occurred. See Earl, 715
N.E.2d at 1267-68; Gregory v. State, 540 N.E.2d 585, 593 (Ind. 1989).
Defendant claims that “a sudden rage came over him” in that he
“snapped after witnessing Marianne and Harris having sexual intercourse.”
He alleges that his actions were the result of him “experiencing the whole
relationship, anger, the whole five years, everything.” Given Defendant’s
recent prior live-in relationship with Marianne and the fact that he
fathered one of her children, we agree that this evidence adequately
introduced the element of sudden heat. However, we find that the totality
of the evidence presented in this case is sufficient to support the court’s
conclusion that Defendant did not act in sudden heat.
The State directs us to Defendant’s own testimony where he detailed
the events that took place on the night of the murder: After ascending the
stairs and realizing that Marianne was with someone in the upstairs
bedroom, Defendant went downstairs to arm himself with knives. He then cut
the telephone lines before going back upstairs, standing outside the
bedroom for a “minute, minute and a half.”[4] Next, he entered the bedroom
and engaged Marianne and Harris in a short conversation before the melee
ensued. The two men soon spilled out in the hallway with Defendant
“jump[ing] over the railing of the staircase . . . [and] over the couch” to
pursue Harris as he attempted to “get out” of the house, ultimately
stopping Harris for the fatal fight at the front door.
We find the evidence sufficient to conclude that the State negated
Defendant’s claim of “sudden heat” beyond a reasonable doubt. There is
ample evidence to show that Defendant acted with the premeditation and
deliberation sufficient to support the jury’s verdict of murder, rather
than voluntary manslaughter. See, e.g., Ellis v. State, 508 N.E.2d 790,
791 (Ind. 1987) (affirming a jury verdict rejecting a claim of sudden heat
where the victim “stopped fighting and attempted to flee” the fight scene).
II
Defendant next contends that the evidence adduced at trial was
insufficient to establish that he took a substantial step towards killing
Marianne, thereby entitling him to a reversal of his attempted murder
conviction. Specifically, he claims that since a comforter covered
Marianne’s face, she could not testify as to how close the knife came to
her. Appellant’s Br. at 10.
In reviewing sufficiency claims, we neither reweigh the evidence nor
judge the credibility of the witnesses. We only consider the evidence
favorable to the jury’s verdict, together with all reasonable inferences to
be drawn therefrom. Allen v. State, 575 N.E.2d 615, 616 (Ind. 1991). If
there is substantial evidence of probative value to support the conclusion
of the jury, we will affirm the judgment. Blanche v. State, 690 N.E.2d
709, 712 (Ind. 1998).
To convict a defendant of attempted murder, the State must prove
beyond a reasonable doubt that the defendant possessed the intent to kill
while taking a substantial step toward the crime of murder. Ind. Code §§
35-41-5-1(a) and 35-42-1-1 (1993); Greenlee v. State, 655 N.E.2d 488, 492
(Ind. 1995). “‘Intent may be inferred from the use of a deadly weapon in a
manner likely to cause death or great bodily harm.’” Mitchem v. State, 685
N.E.2d 671, 676 (Ind. 1997) (quoting Johnson v. State, 455 N.E.2d 932, 936
(Ind. 1983)).
At trial, Marianne testified that she woke up and saw Defendant
“standing over [her], maybe two feet away . . . with [a] knife in each
hand.” She then testified that both she and Harris jumped back against the
bedroom wall. At that point, Defendant asked Marianne if the man in bed
with her was “the reason [why she] wouldn’t take him back.” Apparently not
satisfied with her “no” answer, Defendant then announced, “[W]ell, we’re
all going to die tonight.” And according to Marianne, “That’s when
[Defendant] went to stab me,” so that Harris “grabbed [the] comforter that
was on [the] bed and threw it over” her in an effort to frustrate
Defendant’s attack.
We find there was sufficient evidence from which a jury could
reasonably have inferred that Defendant acted with the requisite intent to
kill Marianne with the knife and that his actions in the bedroom
constituted a substantial step towards the crime of killing her.
III
A
Defendant next contends that the trial court committed reversible
error in admitting testimony of a prior bad act by Defendant in violation
of Indiana Evidence Rules 404(b) and 403. Prior to trial, Defendant sought
and was granted a motion in limine barring the State from introducing
evidence that Defendant had choked Marianne two days prior to Harris’s
murder.
During the course of Marianne’s cross-examination, defense counsel
attempted to elicit her testimony that Harris was a “dangerous person,” who
was the initial aggressor in the fatal encounter with Defendant. (R. at
147; “So, it’s just as possible that James Harris struck out at [Defendant]
as vis[a] versa, is it not?”).
Before beginning her redirect of Marianne, the deputy prosecutor
approached the bench with defense counsel and announced at sidebar that the
“choking incident that happened on the 22nd I think is now fair game.” Her
basis for this statement was that “[D]efendant is now alleging self-
defense, although it was not listed as a defense.” The deputy prosecutor
pointed out that the evidence had “entered the specter that somehow James
Harris was the aggressor and . . . a dangerous person.”
Defense counsel objected to this rationale, claiming, “There’s no
evidence to show that [Defendant] had any kind of disagreement with James
Harris prior to this.” Nevertheless, defense counsel did confirm to the
trial court that he was “going to raise self-defense” in presenting the
remainder of his case.
B
The State’s position is that the evidence of uncharged misconduct was
properly admitted under the “intent” exception to Indiana Evidence Rule
404(b) which provides that “[e]vidence of other crimes, wrongs, or acts is
not admissible to prove the character of a person in order to show action
in conformity therewith. It may, however, be admissible for other
purposes, such as proof of motive, intent, preparation, plan, knowledge,
identity, or absence of mistake or accident.” Id. (emphasis added).
When the State attempts to introduce evidence of a defendant’s
uncharged misconduct, the trial court must perform a two-part inquiry:
first, the court must determine whether “the evidence of other crimes,
wrongs, or acts is relevant to a matter at issue other than the defendant’s
propensity to commit the charged act.” Hicks v. State, 690 N.E.2d 215, 221
(Ind. 1997). If the evidence is offered only to produce the “forbidden
inference,” that is, that the defendant had engaged in other, uncharged
misconduct and that the charged conduct was in conformity with the
uncharged misconduct, then the evidence is inadmissible. Id. at 219; see
also Poindexter v. State, 664 N.E.2d 398, 400 (Ind. Ct. App. 1996).
The second part of the two-part inquiry involves the trial court
“balanc[ing] the probative value of the evidence against its prejudicial
effect pursuant to Rule 403.” Hicks, 690 N.E.2d at 221 & n.10.[5] The
trial court has wide latitude, however, in weighing the probative value of
the evidence against the possible prejudice of its admission, and its
ruling will be reviewed only for an abuse of discretion. Poindexter, 664
N.E.2d at 400.
C
In Wickizer v. State, 626 N.E.2d 795 (Ind. 1993), this Court examined
the “intent” exception to Evid. R. 404(b). At issue in Wickizer was the
admissibility of the testimony of two adult witnesses concerning the
defendant’s prior sexual conduct with them as male youths. Id. at 796.
We noted that “intent” – the defendant’s culpability – is a matter to
be proven in virtually every criminal prosecution, so that “applying a
broad construction to the intent exception of Rule 404(b)” might cause it
“to overwhelm the rule’s primary objective of prohibiting [impermissible
character] evidence of other crimes, wrongs, or acts.” Id. at 797.
However, we then noted that the intent exception to Rule 404(b) would
be available when a defendant goes beyond merely denying the charged
culpability and affirmatively presents a claim of particular contrary
intent. When a defendant alleges in trial a particular contrary
intent, whether in opening statement, by cross-examination of the
State’s witnesses, or by presentation of his own case-in-chief, the
State may respond by offering evidence of prior crimes, wrongs, or
acts to the extent genuinely relevant to prove the defendant’s intent
at the time of the charged offense.
Id. at 799. We ultimately reversed the defendant’s child molestation
conviction, finding that his pre-trial assertion to police that he was not
a “devious character” was insufficient to establish the requisite “claim of
particularly contrary intent.” Id. at 800.
In the present case, Defendant went beyond merely denying the charged
culpability and affirmatively presented a claim of particular contrary
intent – self defense[6] – during his cross-examination of Marianne. Here,
the evidence of Defendant’s prior bad act was that he recently fought with
and choked Marianne after she insisted on ending their relationship.
At first blush, this evidence of Defendant’s prior bad act against
Marianne may seem irrelevant in rebutting Defendant’s assertion of self-
defense against Harris. However, this evidence was particularly relevant
and probative in aiding the jury’s decision with regards to Defendant’s
alleged murder of Harris. First, it directly rebutted Defendant’s claim
that Harris was the dangerous aggressor and tended to show that Defendant
initiated their fatal fight after he saw Harris in bed with Marianne and
asked, “Is he the reason why you won’t take me back?” Second, this
evidence of Defendant’s prior misconduct was close enough in time
(approximately 48 hours) to be genuinely relevant in showing Defendant’s
intent at the time of the murder. See Hicks, 690 N.E.2d at 220 (A trial
court’s discretion in admitting evidence of the defendant’s prior bad acts
“includes determining the significance of the similarity or remoteness of
evidence.”) (citing Fisher v. State, 641 N.E.2d 105 (Ind. Ct. App. 1994)).
This evidence was also relevant and probative in that it directly
involved and shed light on Defendant’s relationship with Marianne, whom the
jury considered as Defendant’s second alleged victim in deciding the
State’s attempted murder charge. See Ross v. State, 676 N.E.2d 339, 346
(Ind. 1996) (“[A] defendant’s prior bad acts are . . . usually admissible
to show the relationship between the defendant and the victim.”).
Under these circumstances, we conclude that the probative value of
this evidence substantially outweighed any danger of unfair prejudice.
Therefore, the trial court did not abuse its discretion in permitting the
State to introduce evidence of this recent, uncharged prior altercation
under the intent exception to Evidence Rule 404(b).
IV
A
Defendant also contends that the trial court committed reversible
error in not instructing the jury on the lesser included offenses of
involuntary manslaughter and reckless homicide.[7]
In Wright v. State, 658 N.E.2d 563 (Ind. 1995), this Court set forth a
three-part test for determining when a trial court should instruct on a
lesser included offense. Part one requires the trial court to determine
whether the lesser offense is “inherently” included in the offense charged
by comparing the statute defining the crime charged with the statute
defining the alleged lesser included offense. Id. at 566-67; see also
Wilson v. State, 697 N.E.2d 466, 473 (Ind. 1998). If necessary, part two
of the Wright test alternatively requires the trial court to determine
whether the lesser offense is “factually” included in the offense charged
by comparing the charging instrument with the statute defining the alleged
lesser included offense. Wright, 658 N.E.2d at 567.
Finally, if the court concludes that the lesser offense is either
inherently or factually included in the offense charged, then part three
requires the court to determine whether a serious evidentiary dispute
exists as to which offense was committed by the defendant, given all the
evidence presented by both parties. Id. If a serious evidentiary dispute
does exist, it is reversible error not to give the instruction on the
inherently or factually included lesser offense. Id.
In this case, the trial court held a hearing on Defendant’s tendered
instructions after the close of evidence and before closing arguments
began. During this hearing, Defendant argued that he was entitled to the
lesser included instructions given the evidence adduced at trial. The
record indicates that the trial court then performed the type of factual
analysis contemplated by Wright and Wilson to determine that no serious
evidentiary dispute existed warranting the lesser included offense
instructions on involuntary manslaughter and reckless homicide. (Id.)
Because it is apparent that the trial court refused the instructions on
these grounds, as opposed to “reject[ing] the tendered instructions on the
basis of its view of the law,” we review its ruling only for an abuse of
discretion. Brown v. State, 703 NE.2d 1010, 1019 (Ind. 1998) (establishing
an “abuse of discretion” standard of review if the trial court performed a
factual analysis and a “de novo” standard of review if the trial court
performed a legal analysis).
B-1
Involuntary manslaughter is not an inherently included lesser offense
of murder. Wright, 658 N.E.2d at 569; see also Champlain v. State, 681
N.E.2d 696, 702 (Ind. 1997) (comparing Ind. Code § 35-42-1-1 (1993), with
id. § 35-42-1-4). But it is a “factually included” lesser offense if the
charging instrument alleges that a battery accomplished the killing.
Wright, 658 N.E.2d at 569-70. Battery is a knowing or intentional
touching of another person in a rude, insolent, or angry manner. Ind. Code
§ 35-42-2-1 (1993). Here, the information alleged that “Dayton Duane Evans
did knowingly or intentionally kill James Harris by means of a knife, a
deadly weapon . . . .” (R. at 6.) Killing an individual with a knife is
necessarily accomplished by touching someone in a rude, insolent, or angry
manner. See McEwen v State, 695 N.E.2d 79, 86-87 (Ind. 1998). As such, we
find that the information did assert a battery, and involuntary
manslaughter was a factually included lesser offense of murder. Thus, we
turn to the final step of the Wright analysis.
The critical element distinguishing involuntary manslaughter from
murder in this case is intent – the intent to kill or the intent to batter.
And the record before us reveals no serious evidentiary dispute concerning
whether Defendant intended to kill or batter Harris. To begin with, there
is no evidence — or claim by Defendant — that Defendant intended only to
batter Harris. Cf. Lynch v. State, 571 N.E.2d 537, 539 (Ind. 1991)
(ordering a new trial where the evidence included the defendant’s
“testimony that his intent was only to injure his father,” thus entitling
him to an instruction on involuntary manslaughter).
In regard to Defendant’s intent to kill, after the close of evidence,
the trial judge questioned whether “involuntary manslaughter [was] still
appropriate” given Defendant’s “professed intent to kill” while
proclaiming, “We’re all going to die here today.” In ultimately rejecting
the instruction on involuntary manslaughter, the trial court stated that
this professed intent to kill “excludes any arguable grounds to suggest
that he didn’t have an intent to kill.” (R. at 445.) We agree with the
trial court and would also point to Defendant’s violent pursuit of Harris
throughout the house with Defendant ultimately inflicting multiple stab
wounds on Harris, including slitting his throat. The trial court did not
abuse its discretion in refusing to give the instruction.
B-2
Defendant also tendered an instruction on reckless homicide, Ind. Code
§ 35-42-1-5 (1993), which the trial court refused. The only distinguishing
feature in the elements of murder and reckless homicide is the mens rea
required of each offense. Wright, 658 N.E.2d at 567. Reckless homicide is
an inherently included offense of murder, id., thus, we proceed directly to
step three of the Wright analysis.
Following a similar analysis as presented above, we again note that
the record reveals no serious evidentiary dispute concerning the mens rea
element. Therefore, we agree with the trial court when it ruled that
Defendant’s professed intent to kill “excludes any arguable grounds to
suggest that he didn’t have an intent to kill,” and thus “[r]eckless [was]
out too.” The trial court did not abuse its discretion in refusing to give
the instruction.
V
Finally, Defendant contends that his enhanced sentence of 60 years for
murder, to be served concurrently with his 40-year sentence for attempted
murder, was manifestly unreasonable in that the trial court failed to
consider Defendant’s remorse as a mitigating factor in its sentencing
order.
In general, the legislature has prescribed standard sentences for each
crime, allowing the sentencing court limited discretion to enhance each
sentence to reflect aggravating circumstances or reduce the sentence to
reflect mitigating circumstances. When the trial court imposes a sentence
other than the presumptive sentence, or imposes consecutive sentences where
not required to do so by statute, this Court will examine the record to
insure that the court explained its reasons for selecting the sentence it
imposed. Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997) (citing Hammons
v. State, 493 N.E.2d 1250, 1254 (Ind. 1986)). The trial court’s statement
of reasons must include the following components: (1) identification of all
significant aggravating and mitigating circumstances; (2) the specific
facts and reasons that lead the court to find the existence of each such
circumstance; and (3) an articulation demonstrating that the mitigating and
aggravating circumstances have been evaluated and balanced in determining
the sentence. Mitchem v. State, 685 N.E.2d 671, 678 (Ind.1997) (citing
Jones v. State, 675 N.E.2d 1084, 1086 (Ind.1996)).
At the time Defendant committed these crimes, murder carried a
presumptive 50-year sentence, with not more than ten years added for
aggravating circumstances and not more than ten years subtracted for
mitigating circumstances. See Ind. Code § 35-50-2-3 (Supp. 1995). The
trial court sentenced Defendant to an enhanced term of 60 years and listed
no significant mitigating factors in its sentencing order.[8] The trial
court did identify several significant aggravating circumstances to
include: (1) Defendant stabbing his ex-girlfriend’s new boyfriend to death;
(2) Defendant trying to stab his ex-girlfriend; (3) Defendant’s prior
criminal history, including a misdemeanor battery conviction, and
convictions for and pending charges concerning his status as a habitual
traffic offender; (4) the risk that Defendant would commit future crimes;
and (5) the fact that Defendant’s “prior lenient treatment has had no
deterrent effect.”
It is within the sentencing court’s discretion to determine whether
remorse should be considered as a “significant” mitigating factor. Battles
v. State, 688 N.E.2d 1230, 1237 (Ind. 1997); see also Jones v. State, 698
N.E.2d 289, 291 (Ind. 1998) (“What constitutes a ‘significant’ mitigating
factor is generally within the discretion of the trial court.”); Ross v.
State, 676 N.E.2d 339, 347 (Ind.1997) (stating that ‘the ‘proper’ weight to
be afforded by the trial court to the mitigating factors may be to give
them no weight at all”).
In light of the extremely brutal nature of Harris’s death, we find no
abuse of the trial court’s sentencing discretion in choosing not to assign
any significant weight to Defendant’s claim of remorse. Furthermore, we
find that any weight that might have been assigned to this proffered
mitigating circumstance is more than offset by Defendant’s prior criminal
history and the trial court’s decision to impose concurrent – in lieu of
consecutive – sentences for Defendant’s murder and attempted murder
convictions. As such, we conclude that the sentence was not manifestly
unreasonable.
Conclusion
The trial court is affirmed in all respects.
SHEPARD, C.J., and DICKSON, BOEHM and RUCKER, JJ., concur.
-----------------------
[1] Marianne had just ended her longstanding relationship with Defendant,
who fathered one of her three children.
[2] Ind. Code § 35-42-1-1 (1993).
[3] Id. §§ 35-42-1-1 and 35-41-5-1.
[4] Under cross-examination, Defendant admitted cutting the phone lines
after hearing “music” and “groaning” from the bedroom. He then stated that
since “[Marianne] had called the police in the past” during their
arguments, he just wanted “time to get away without her and her lover
calling the police” in the event that “anything happened.”
[5] While “prejudice” is the primary countervailing factor under Rule 403,
other factors are listed therein: confusion of the issues, misleading the
jury, undue delay, and the needless presentation of cumulative evidence.
Defendant’s claim in this case is solely based on the unfair prejudice that
resulted when the jury was exposed to the evidence of his prior altercation
with Marianne.
[6] He vigorously maintained this defense throughout the trial, including
during his own testimony and closing argument.
[7] The trial court did instruct the jury on the lesser included offense of
voluntary manslaughter.
[8] The crime in this case was committed at a time when the presumptive
sentence for murder was 50 years and the maximum was 60 years. Ind. Code §
35-50-2-3 (Supp. 1995) (as amended by P.L. 2-1995, sec. 128). As such, the
sentence imposed was authorized by the statute in effect at the time.