Dunlap v. State, 49S00-0002-CR-104.

CourtSupreme Court of Indiana
Citation761 N.E.2d 837
Docket NumberNo. 49S00-0002-CR-104.,49S00-0002-CR-104.
PartiesStephanie DUNLAP, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.
Decision Date29 January 2002

Terrance W. Richmond, Milan, Indiana, Attorney for Appellant.

Karen Freeman-Wilson, Attorney General of Indiana, Priscilla J. Fossum, Deputy Attorney General, Indianapolis, Indiana, Attorneys for Appellee. DICKSON, Justice.

The defendant was convicted of murder1 for the January 23, 1998, killing of Tamika Ballard in Indianapolis. The defendant appeals claiming insufficiency of the evidence, erroneous admission of an autopsy photograph, erroneous admission of evidence related to a gun that was not the murder weapon, and erroneous exclusion of a transcript of a witness's prior inconsistent statement. We affirm the trial court.

Sufficiency of the Evidence

The defendant claims there was insufficient evidence to show that she knowingly killed. In reviewing a claim of insufficient evidence, we will affirm the conviction unless, considering only the evidence and reasonable inferences favorable to the judgment and neither reweighing the evidence nor judging the credibility of the witnesses, we conclude that no reasonable fact-finder could find the elements of the crime proven beyond a reasonable doubt. Jenkins v. State, 726 N.E.2d 268, 270 (Ind.2000); Webster v. State, 699 N.E.2d 266, 268 (Ind.1998); Hodge v. State, 688 N.E.2d 1246, 1247-48 (Ind.1997). "A person engages in conduct `knowingly' if, when [s]he engages in the conduct, [s]he is aware of a high probability that [s]he is doing so." Ind.Code § 35-41-2-2(b). A knowing killing may be inferred from the use of a deadly weapon in a manner likely to cause death. Hawkins v. State, 748 N.E.2d 362, 363 (Ind.2001)("Evidence that [the defendant] pointed and fired a shotgun at [the victim] striking him in the neck and chest is sufficient to sustain the murder conviction."); Cook v. State, 675 N.E.2d 687, 692 (Ind.1996)("Firing three shots in the direction of the victim undoubtedly constitutes using a deadly weapon in a manner likely to cause death.").

The facts favorable to the judgment show that, at the time of the incident, the defendant, Stephanie Dunlap, was living with Terrell Cole, and that Tamika Ballard, pregnant by Cole, was living with Cole's mother, Tina Westbrook. On the day of the incident, the defendant came to the Westbrook home and engaged in an argument with Ballard. The defendant left and returned, armed with an assault rifle. She then fired the rifle once into the air outside the home. Westbrook and Ballard rushed to the front door to find the defendant in the front yard pointing the rifle toward them. Ballard stayed on the porch, and Westbrook jumped off the porch and went around behind the defendant and attempted to persuade her to leave. At some point after Westbrook reached the defendant, the defendant fired two or three shots toward the screen door where Ballard was standing. One of these bullets struck Ballard, eventually killing her.

The defendant contends that Westbrook grabbed her and spun her around "at which point the gun discharged two to three times, one of the bullets somehow, probably by ricochet, striking Ballard." Br. of Defendant-Appellant at 18. She argues that the discharge of the weapon was accidental, and that the evidence fails to establish that she "knowingly" killed Ballard.

On direct examination Westbrook's testimony included the following description of the incident:

Q. ... When you get out to where [the defendant] is, tell the jury what happens.
A. I get in the back of her and I ask her would she get in the van, don't shoot at my house and she had started shooting.
Q. How close are you to [the defendant] when this is happening?
A. I'm right behind her, up right in the back of her.
Q. And what direction is the gun pointed?
A. Towards the porch.
Q. Towards the porch?
A. Yes, toward the screen door where Tamika [Ballard] was standing at.
Q. Does she fire the gun?
A. Yes.
Q. About how many times do you think she fires the gun?
A. Approximately three times.
Q. What are you doing while she's firing the gun, Miss Westbrook?
A. I'm just standing back there. There wasn't nothing I could do.
Q. After she fires the gun, what happens?
A. She—After she fired the gun, Tamika ran in the house and she gets in the van and takes off. And I goes back in the house and Tamika said she had been—she had been shot.
Q. Did you actually have your hands on [the defendant] as she's firing the gun?
A. Before she started firing I was asking her, you know, trying to turn her around to go to her van, asking her, "Don't shoot," you know. "Don't shoot at my house. Don't shoot up there at the porch," you know. And when she started shooting, I kind-of backed away.
Q. You kind-of backed away?
A. Yes.
Q. Do you think your hands were on her when she actually fired the gun in the direction of the house?
A. I'm not sure.

Record at 245-47. On cross examination, her testimony included:

Q. Now, I think you told Mr. Pitzer, Miss Westbrook, that you're not sure if you were grabbing [the defendant] while she was shooting. Is that what you're telling us today?

A. Yes, I am. I don't—I don't—I don't know if I was holding her. All I know when I—when I said I was trying to turn her around to go to her van, then she got to shooting.

Record at 252-53.

From the evidence that, after an earlier argument with Ballard, the defendant returned to the Westbrook home armed with an assault rifle, and thereafter fired it two or three times at the screen door where Ballard was standing, a reasonable jury could have found beyond a reasonable doubt that the defendant knowingly killed Ballard.

Photograph of Victim

The defendant contends that the trial court erred in admitting State's Exhibit 15, an autopsy photograph of the victim, because the photograph's prejudicial effect outweighed its probative value. The defendant argues that she stipulated to the victim's identity and cause of death, and that the photograph shows the victim in an altered condition. The challenged photograph portrays the face of the victim with tubes extending from the victim's mouth and nose.

The admission and exclusion of evidence falls within the sound discretion of the trial court, and is reviewed only for abuse of discretion. Byers v. State, 709 N.E.2d 1024, 1028 (Ind.1999); Amburgey v. State, 696 N.E.2d 44, 45 (Ind.1998). Relevant evidence, including photographs, may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Ind.Evidence Rule 403; Byers, 709 N.E.2d at 1028.

The defendant first argues that the photograph was not relevant to any issue at trial because there was no dispute about the identity of the victim or that a living person was killed. The autopsy report regarding Ballard and two autopsy photographs were admitted by stipulation of the parties. This occurred at the end of the State's case. Record at 438-40. But, at the point in the trial when Exhibit 15 was admitted, the State still had the burden of proving the identity of the alleged victim. Photographs of a victim's corpse in a homicide case are relevant to prove the identity of the victim.2 Butler v. State, 647 N.E.2d 631, 633-34 (Ind.1995); Hughes v. State, 546 N.E.2d 1203, 1211 (Ind.1989); Brown v. State, 503 N.E.2d 405, 409 (Ind.1987). The photograph was relevant to show the identity of the victim. The relevance of the exhibit is only part of the inquiry, however. Rule 403 permits the exclusion of relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice.

The defendant refers us to cases in which we have found the danger of prejudicial effect to be high in photographs where the body depicted has been altered in some way. See, e.g., Turben v. State, 726 N.E.2d 1245, 1247 (Ind.2000)

(finding photograph showing gloved hands manipulating a bloody mass with a probe inadmissible); Allen v. State, 686 N.E.2d 760, 776 (Ind.1997)("[A]utopsy photographs are generally inadmissible if they show the body in an altered condition."); Loy v. State, 436 N.E.2d 1125, 1128 (Ind.1982); Warrenburg v. State, 260 Ind. 572, 574, 298 N.E.2d 434, 435 (1973)(finding it error to admit autopsy photograph which showed a partially resewn corpse, nude from the waist up, with the right arm of the corpse severed completely and the left arm re-attached with gaping sutures); Kiefer v. State, 239 Ind. 103, 111-12, 153 N.E.2d 899, 904-05 (1958)(finding it reversible error to admit autopsy photographs showing hands and instruments of surgeon inside chest of victim).

Evaluation of whether the exhibit's probative value is substantially outweighed by the danger of unfair prejudice is a discretionary task best performed by the trial court. We are not persuaded that the court abused its discretion in admitting the exhibit.

Similar Gun Evidence

The defendant contends that the trial court erred in allowing the State to show and demonstrate a 7.62 assault rifle3 despite the fact that no weapon was found related to the victim's fatal gunshot wound. The State offered the rifle as a demonstrative exhibit during expert testimony from a tool marks and firearm examiner.

"Demonstrative evidence is evidence offered for purposes of illustration and clarification." Wise v. State, 719 N.E.2d 1192, 1196 (Ind.1999). Demonstrative evidence may be admissible if it sufficiently explains or illustrates relevant testimony as to be a potential help to the trier of fact. Id. The admissibility of demonstrative evidence must also meet the requirements of Rule 403, which balances probative value against prejudicial effect. Id. Trial courts are given wide latitude in weighing probative value against the danger of unfair prejudice, and we review that determination for abuse of discretion. Houston v. State, 730 N.E.2d 1247, 1251 (Ind.2000).

Emphasizing that the murder weapon was not found and that the defendant claimed that the shooting...

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