Court of Appeals of Indiana | Opinion 23A-CR-518 | November 22, 2023 Page 1 of 16

ATTORNEY FOR APPELLANT

Paul J. Podlejski

Anderson, Indiana

ATTORNEYS FOR APPELLEE

Theodore E. Rokita

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Zachary W. Hileman,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 22, 2023

Court of Appeals Case No.

23A-CR-518

Appeal from the Madison Circuit 

Court

The Honorable Angela Warner 

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 2 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 
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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 
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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 
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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). 
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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 
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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
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[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-
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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 
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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.
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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 
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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 
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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. 
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[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 
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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 
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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