Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 1 of 27

ATTORNEYS FOR APPELLANT

Scott L. King

Lakeisha C. Murdaugh

Merrillville, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Caroline G. Templeton

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

Lavoyd D. Shepherd,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

September 30, 2020

Court of Appeals Case No.

20A-CR-179

Appeal from the Lake Superior 

Court

The Honorable Clarence D. 

Murray, Judge

Trial Court Cause No.

45G02-1702-MR-3

Riley, Judge.
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 2 of 27

STATEMENT OF THE CASE

[1] Appellant-Defendant, Lavoyd Shepherd (Shepherd), appeals his conviction and 

sentence following the jury’s guilty verdicts for voluntary manslaughter, a Level 

2 felony, Ind. Code § 35-42-1-3; aggravated battery, a Level 1 felony, I.C. § 35-

42-2-1.5; battery resulting in death to a person less than fourteen years old, a 

Level 2 felony, I.C. §§ 35-42-2-1(c)(1), -(k)(1); and battery resulting in bodily 

injury to a person less than fourteen years old, a Level 5 felony, I.C. §§ 35-42-2-

1(c)(1), -(g)(5)(B). 

[2] We affirm.

ISSUES

[3] Shepherd presents the court with six issues, which we restate as the following:

(1) Whether the State proved beyond a reasonable doubt that it 

was he who injured A.F.;

(2) Whether the trial court abused its discretion when it excluded 

the video-recorded police interview of a witness who testified 

at trial;

(3) Whether the trial court committed reversible error by 

instructing the jury on voluntary manslaughter;

(4) Whether the trial court abused its discretion by admitting 

photographic images seized from Shepherd’s cell phone 
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pursuant to a search warrant after the return of the warrant 

was delayed;

(5) Whether his sentence for aggravated battery violates 

Indiana’s Proportionality Clause; and

(6) Whether his sentence is inappropriate given the nature of the 

aggravated battery offense and his character.

FACTS AND PROCEDURAL HISTORY

[4] Andre Ferguson (Ferguson) and Lena Harper (Harper) were formerly in a 

romantic relationship, and their daughter, A.F., was born on May 20, 2015. 

Harper subsequently began a relationship with Shepherd, and Ferguson 

exercised regular parenting-time with A.F. On February 20, 2017, Shepherd 

drove with Harper and Shepherd’s ten-year-old son, J.S., to a gas station in 

South Holland, Illinois, to retrieve physical custody of A.F., who had spent the

three-day holiday weekend with Ferguson and his family. Ferguson had given 

A.F. her favorite snack, pretzel sticks, prior to the drop-off at 9:30 p.m. and 

allowed her to take the bag of pretzels with her. A.F. continued to eat pretzels 

in Shepherd’s SUV on the way back to his apartment in Merrillville, Indiana, 

where Shepherd lived with Harper, A.F., and J.S. They arrived at Shepherd’s 

apartment at approximately 10:00 p.m. Shepherd consumed his favorite 

alcoholic beverage, tequila, while the rest of the household’s occupants went to 

bed. 
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[5] A.F. and J.S. shared a bedroom in Shepherd’s apartment. In the early morning 

hours of February 21, 2017, A.F. cried. Between 4:00 a.m. and 5:00 a.m., J.S.

went to tell Shepherd, who was sleeping on the couch in the living room, that 

A.F. was crying. J.S. then went back to bed. Shepherd later awakened J.S. and

told him that A.F. was not breathing. Shepherd attempted to perform CPR on 

A.F. in the living room, which awakened Harper. Shepherd and Harper drove 

A.F. to the hospital, and J.S. took the bus to school as he normally would. 

A.F. had no heartbeat and was essentially dead upon her arrival at the hospital. 

Despite the extensive efforts made to revive her, A.F. was pronounced dead at 

the hospital at 6:03 a.m. Shepherd subsequently left Harper at the hospital and 

was intercepted by police at J.S.’s school. While at school that morning, J.S. 

had written a short essay about the holiday weekend in which he stated that it 

had been good until that morning because that was when his little sister had 

died. 

[6] An autopsy performed by Dr. Zhuo Wang (Dr. Wang) on February 22, 2017, 

revealed that A.F. had died of multiple blunt force traumas to her head and 

abdomen. The force of the trauma to A.F.’s head had caused the fibrous bands 

holding her skull together to separate and had injured her brain. The wounds to 

A.F.’s abdomen had caused massive internal bleeding. Either the injuries to 

A.F.’s head or to her abdomen would have been fatal. 

[7] On February 21, 2017, investigators procured a search warrant for Shepherd’s 

apartment. Photographs of A.F.’s and J.S.’s bedroom revealed a large tear in 

the netting of A.F.’s pack-and-play which served as her bed. Shepherd’s cell 
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phone was collected from the living room couch. Shepherd provided 

statements to an investigator with the coroner’s office, a Child Protective 

Services (CPS) assessor, and to the police. Although some of the details of his 

accounts varied among these statements, Shepherd consistently reported that he 

was the only one awake in the apartment. Although he had initially reported to 

Harper that he had stayed awake all night, according to Shepherd’s later 

statements, he had stayed awake until around 4:00 a.m., and J.S. woke him 

around 5:00 a.m. to tell him that A.F. was making strange noises. Shepherd 

reported that he had found A.F. unresponsive and had shaken her in an attempt 

to revive her before performing CPR. Shepherd related in one of his police 

interviews that he felt that Harper told Ferguson too much about her 

relationship with Shepherd and that Harper had been on the phone with 

Ferguson for an hour on February 20, 2017. Because of the nature of A.F.’s 

injuries, investigators sought Harper’s and Shepherd’s consent to measure and 

photograph their hands. Harper immediately consented, but Shepherd refused. 

Shepherd’s hands were later photographed and measured pursuant to a court 

order. 

[8] On February 21, 2017, and again on February 23, 2017, J.S. was interviewed by 

police and provided statements which were video recorded.1

 J.S. appeared to 

be calm and relaxed as the interviewer built rapport with him by asking him 

questions unrelated to the investigation. When the subject of the interview 

1

 The video recording of J.S.’s second interview is not part of the record on appeal. 
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turned to the events surrounding A.F.’s death, J.S. became more physically 

animated, shaking his leg and changing positions in his seat. At various times 

during the interview, J.S. reported that he had awakened Shepherd at 10:22

p.m., 5:00 a.m., and 5:22 a.m. J.S. claimed to have performed CPR on A.F.

but later in the interview admitted that he had not. Contrary to what he had 

written in his school essay, during the interview J.S. stated that he did not know 

what had happened to A.F. but that he wanted to assume that she was alright. 

[9] Based on Shepherd’s statements that everyone else in the apartment had been 

asleep, the amount of force required to inflict A.F.’s injuries, and the fact that 

J.S. was five feet tall and weighed seventy pounds at the time, investigators 

ruled out Harper and J.S. as suspects in A.F.’s death. On February 24, 2017, 

the State filed an Information, charging Shepherd with murder, aggravated 

battery, battery resulting in death to a person less than fourteen years old, and 

battery resulting in bodily injury to a person less than fourteen years old. 

Investigators sought and received a search warrant to procure the contents of 

Shepherd’s cell phone. The lead investigator, Detective James Bogner 

(Detective Bogner) of the Merrillville Police Department, transported 

Shepherd’s cell phone to the Indiana State Police post on April 4, 2017, where 

the search warrant was executed by Detective Alva Whited (Detective Whited). 

Detective Whited extracted seven images from Shepherd’s cell phone showing 

what appeared to be an adult male’s hand positioning A.F.’s mouth so that a 

severe tongue injury was visible from different angles. Metadata extracted with 

the images indicated that they were taken from 3:42:02 a.m. to 3:43:54 a.m. on 
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February 21, 2017, and that they were taken with Shepherd’s cell phone 

camera, as opposed to being taken and sent to him by someone else. In his 

various statements to investigators, Shepherd had never mentioned discovering 

A.F.’s tongue injury or photographing it. On April 4, 2017, after Detective 

Whited finished his forensic examination, Detective Bogner retrieved 

Shepherd’s cell phone and completed the return on the search warrant. 

However, the search warrant return was not immediately filed. 

[10] On May 9, 2018, Shepherd filed a motion to suppress arguing that the seven 

images extracted from his cell phone should be excluded from the evidence 

because the State had failed to file the return on the search warrant. On August 

16, 2018, and September 13, 2018, the trial court held hearings on Shepherd’s 

motion to suppress. The State filed the search warrant return the day of the first 

hearing. In the return, Detective Bogner swore under penalties of perjury that 

he had taken Shepherd’s cell phone to Detective Whited for examination on 

April 4, 2017; the cell phone was searched, and data was gathered; and that an 

inventory of the property taken under the search warrant was “[a]ll data 

collected from the phone via forensic means[.]” (Suppression Exh. Vol. p. 7). 

On November 16, 2018, the trial court denied Shepherd’s motion to suppress. 

[11] On August 12, 2019, the trial court convened Shepherd’s five-day jury trial. 

Shepherd’s theory of the case was that A.F. had sustained her fatal injuries 

either while she had been in the care of Ferguson and his family or at the hands 

of J.S. Ferguson and others who had cared for A.F. that weekend all testified 

that she had not had any falls or injuries and that she appeared to be normal 
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and healthy. J.S. testified and denied ever having hit or kicked A.F. J.S. 

confirmed that the netting on A.F.’s pack-and-play had not been torn before 

that night. J.S. was cross-examined by Shepherd regarding inconsistencies in 

his police statements and his trial testimony. After J.S. testified as part of the 

State’s case-in-chief and had also been called by Shepherd as part of his own 

case, Shepherd sought to have the video recordings of J.S.’s police interviews

admitted to “complete impeachment,” to allow the jury to observe J.S.’s height 

and weight at the time, and to allow the jury to observe J.S.’s change in 

demeanor during his police interviews. (Transcript Vol. III, p. 144). The trial 

court ultimately excluded the video of J.S.’s interview, ruling that, due to J.S.’s 

acknowledgement of the inconsistencies in his statements and other testimony, 

the video recordings were cumulative. Detective Bogner testified and related to 

the jury that Harper had reported to him that Shepherd had asked her, “What 

are we going to say?” and that investigators were interested in knowing why he 

had asked her that. (Tr. Vol. III, p. 159). 

[12] Dr. Wang testified that a great amount of force had been required to inflict 

A.F.’s injuries and that she had sustained her head and abdominal injuries close 

in time because either set of injuries would have been fatal. Dr. Wang had 

collected tissues from A.F.’s head and abdominal injuries which contained fresh 

red blood cells but no white blood cells. The presence of only red blood cells in 

the tissue samples indicated to Dr. Wang that A.F. had died within 

approximately two hours of sustaining her injuries. Dr. Wang had also noted a 

lack of blood in A.F.’s diaper, from which he concluded that she had died 
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quickly from her injuries, as there had not been adequate time for the blood in 

her abdominal cavity to pass out of her body. It was Dr. Wang’s opinion that 

it was highly unlikely that someone with A.F.’s injuries would have been able 

to consume food. 

[13] During the final instruction conference, the trial court indicated that it would 

give the jury instructions on voluntary manslaughter and sudden heat. The 

State objected to the giving of these instructions, arguing that there was no 

evidence to support them. Shepherd’s counsel argued in support of giving the 

instructions that “[y]ou could have an inference from the lateness of the hour, 

the crying baby, disturbance of the sleep, that would be the evidence . . . .” (Tr. 

Vol. IV, p. 33). The trial court noted that there had been evidence presented 

that Shepherd was upset about Harper and Ferguson talking earlier that day. 

The trial court ruled that it would give the voluntary manslaughter instructions, 

and Shepherd did not object. The jury found Shepherd guilty of voluntary 

manslaughter and all the battery charges. At the State’s request, the trial court 

immediately entered judgment of conviction for voluntary manslaughter. 

[14] On August 19, 2019, the trial court entered judgment of conviction for Level 1

felony aggravated battery and took entry of judgment on the other verdicts

under advisement. On September 11, 2019, Shepherd’s presentence 

investigation report was filed and revealed the following. Shepherd had no 

juvenile record or adult criminal convictions, but he had a pending Level 6 

felony domestic battery charge at the time of A.F.’s death. Shepherd began 
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consuming alcohol and marijuana at the age of thirteen and has consumed 

marijuana daily since he was eighteen years old. 

[15] On December 4, 2019, the trial court held Shepherd’s sentencing hearing. 

Based on double jeopardy concerns, the trial court vacated the voluntary 

manslaughter conviction and “merge[d]” the other batteries into Shepherd’s

Level 1 felony aggravated battery, leaving only that conviction for sentencing. 

(Tr. Vol. V, p. 17). The trial court found as aggravating circumstances that the 

injuries Shepherd inflicted on A.F. were greater than necessary to accomplish 

the offense; Shepherd was on pretrial release in his domestic violence case when 

he committed the instant offense; the nature and circumstances of the offense 

were heinous, as Shepherd brutally beat A.F. as she slept; and that Shepherd 

was in a position of trust with A.F. As mitigating circumstances, the trial court 

found that Shepherd had no history of true-findings or criminal convictions and 

that his imprisonment would result in undue hardship to his other dependents. 

The trial court found that the aggravating circumstances outweighed the 

mitigating ones and sentenced Shepherd to thirty-five years, with five years 

suspended to probation. 

[16] Shepherd now appeals. Additional facts will be provided as necessary. 
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DISCUSSION AND DECISION

I. Sufficiency of the Evidence

A. Standard of Review

[17] Shepherd challenges the evidence supporting his conviction. More specifically, 

he contends that the State failed to prove beyond a reasonable doubt that it was 

he who inflicted A.F.’s injuries. The standard of review of such claims is wellsettled: When we review the sufficiency of the evidence to support a 

conviction, we consider only the probative evidence and reasonable inferences 

supporting the verdict. Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). It is not 

our role as an appellate court to assess witness credibility or to weigh the 

evidence. Id. We will affirm the conviction unless no reasonable fact-finder 

could find the elements of the crime proven beyond a reasonable doubt. Id. 

B. Identity

[18] In order to prove that a particular defendant committed an offense, it has long 

been held that “the proof of a mere opportunity to commit the crime, without 

more, is not sufficient to sustain a conviction.” Durham v. State, 238 N.E.2d 9, 

13 (Ind. 1968) (reversing defendant’s assault and battery with intent to kill 

conviction where, apart from evidence she had the opportunity to strike her 

husband, there was “no other evidence in the entire record which even tends to 

establish that appellant struck such a blow[.]”). However, the identity of the 

perpetrator of an offense may be established solely by circumstantial evidence. 

Bustamante v. State, 557 N.E.2d 1313, 1317 (Ind. 1990). “The key question . . . 

is whether from all the evidence the jury could have drawn a reasonable 
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inference that appellant was the perpetrator of the crime.” Hovis v. State, 455 

N.E.2d 577, 579 (Ind. 1983). 

[19] Shepherd argues that “[w]hen the evidence in this case is considered as a whole, 

the only reasonable inference that a trier of fact could draw is that while it was 

possible that [Shepherd] committed the crimes,” the State only established that 

he had the opportunity to commit the offenses. (Appellant’s Br. p. 24)

(emphasis in original). We disagree. A.F. had been in the care of Ferguson 

and his family over the three-day weekend, but no one observed any severe 

injuries to her when custody was exchanged back to Harper at around 9:30 p.m. 

on February 20, 2017. A.F. ate pretzels on the way back to Shepherd’s 

apartment. Dr. Wang testified that it was highly unlikely that anyone with 

A.F.’s injuries would have been able to eat and that A.F. had died within 

approximately two hours of sustaining her injuries. A.F. awakened J.S. with 

crying between 4:00 a.m. and 5:00 a.m., establishing that she was still alive

during that timeframe. Given that A.F. was able to eat after leaving Ferguson’s 

custody and continued to live approximately six hours thereafter, the jury could 

reasonably infer that A.F. did not sustain her injuries while with Ferguson and 

his family over the long weekend. 

[20] Other evidence allowed the jury to infer that it was Shepherd, as opposed to J.S. 

or Harper, who inflicted A.F.’s fatal injuries. According to Shepherd’s own 

statements, Harper was asleep until she was awakened by the commotion of 

Shepherd attempting to revive A.F. J.S. denied ever having hit or kicked A.F. 

J.S. testified that he woke Shepherd because A.F. was making noise, indicating 
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A.F. was still alive at that point. Shepherd later woke J.S. to tell him that A.F. 

was no longer breathing, all of which supports an inference that A.F. became 

unresponsive while Shepherd was the only one awake and out of bed. In 

addition, Shepherd used his cell phone just before 4:00 a.m. to capture images 

of a serious injury to A.F.’s tongue, but he did not mention that he had 

discovered the injury or photographed it when speaking to the deputy coroner, 

the CPS assessor, or in his interviews with police, which supported an inference 

that Shepherd attempted to conceal his guilt. Shepherd also asked Harper what 

they were going to say about A.F., from which the jury could reasonably infer 

that Shepherd was also attempting to conceal his guilt by fabricating a version 

of events which did not include him inflicting serious injury on A.F. The 

totality of this evidence showed much more than Shepherd having a mere 

opportunity to injure A.F.; rather, it supported the jury’s reasonable conclusion 

that it was, indeed, Shepherd who inflicted A.F.’s fatal injuries. 

[21] Despite the evidence supporting the jury’s verdict, Shepherd directs our 

attention to portions of Dr. Wang’s testimony which he argues showed that 

A.F.’s injuries could have been inflicted up to forty-eight hours before her 

death, casting a reasonable doubt on his identity as the perpetrator. Shepherd 

also points to Dr. Wang’s testimony that the contents of A.F.’s stomach 

showed that she had died within two hours of having last eaten. However, 

Shepherd’s argument ignores Dr. Wang’s testimony that A.F. incurred all her 

injuries close in time and that she died within approximately two hours of 

having sustained those injuries, a conclusion he based in part on the lack of 
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white blood cells in her tissue samples. Shepherd’s argument based on Dr. 

Wang’s other testimony is unpersuasive in that it requires us to consider 

evidence that does not support the jury’s verdict, in contravention of our 

standard of review. Drane, 867 N.E.2d at 146.

[22] Shepherd also directs our attention to evidence that A.F. vomited during the car 

ride home which he contends could have could been a symptom of injury, his 

report that A.F. was fine when he claimed to have checked on her around 12:30 

a.m., what he implies were suspicious inconsistencies in J.S.’s reports of the 

events, the fact that A.F. appeared to still be alive in the images of her that were 

taken just before 4:00 a.m., and other evidence he contends supported a 

reasonable inference that it was not he who injured A.F. However, all these 

facts and arguments were presented to the jury, but the jury chose to believe the 

other evidence supporting Shepherd’s guilt. As a court of review, we are 

obligated to leave the jury’s verdict intact because there was sufficient evidence 

of probative value to support it. See id. 

II. Exclusion of J.S.’s Video-Recorded Police Interviews

A. Standard of Review

[23] Shepherd sought to have J.S.’s video-recorded police interviews admitted 

during the State’s case-in-chief and during the presentation of his own case. 

Shepherd contends that the trial court violated his rights to confrontation and 

cross-examination by excluding this evidence. A trial court has inherent 

discretionary power regarding the admission of evidence, and we review its 

decisions only for an abuse of that discretion. Vasquez v. State, 868 N.E.2d 473, 
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476 (Ind. 2007). To reverse a trial court’s decision to exclude evidence, there 

must be error by the court that affects the defendant’s substantial rights. Id. 

B. Right to Cross-Examine

[24] Shepherd argues that the trial court impermissibly limited his right to crossexamine and impeach J.S. by excluding his police interviews. Although he 

offered multiple arguments for admissibility below, to us he only argues that he 

had the right to present “relevant evidence of J.S.’s demeanor in his videotaped 

interviews to assist [the jury] in assessing J.S.’s credibility in his denial of 

physical contact with A.F., contact that may have resulted in the fatal injuries 

that led to her death.” (Appellant’s Br. p. 29). In addressing this claim, we 

begin by observing that a criminal defendant’s right to confront and crossexamine witnesses is guaranteed by the Sixth Amendment and Indiana’s 

Constitution, and it is “‘one of the fundamental rights of our criminal justice 

system.’” Hubbell v. State, 754 N.E.2d 884, 891 (Ind. 2001) (quoting Pigg v. 

State, 603 N.E.2d 154, 155 (Ind. 1992)). However, it is also well-established 

that the right of a criminal defendant to cross-examine witnesses against him is 

not absolute and is subject to reasonable limitations at the discretion of the trial 

court. Logan v. State, 729 N.E.2d 125, 134 (Ind. 2000). 

[25] Indiana Evidence Rule 613(a) provides that a witness may be examined about a 

prior statement. However, a prior inconsistent statement is not admissible 

under Rule 613 if the witness has already acknowledged the prior inconsistent 

statement on cross-examination because impeachment is complete after such an 

acknowledgment. Dixon v. State, 967 N.E.2d 1090, 1092 (Ind. Ct. App. 2012); 
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see also D’Paffo v. State, 749 N.E.2d 1235, 1240 (Ind. Ct. App. 2001) (holding 

that exclusion of evidence of molestation victims’ prior inconsistent statements 

was within the trial court’s discretion where victims had already acknowledged 

the inconsistencies on cross-examination), vacated in part on other grounds; Roberts 

v. State, 712 N.E.2d 23, 32 (Ind. Ct. App. 1999) (finding no abuse of the trial 

court’s discretion in excluding rape victim’s videotaped interview denying she 

had had intercourse with Roberts where she admitted making those statements 

on cross-examination), trans. denied. 

[26] Here, Shepherd confronted J.S. on cross and direct examination with J.S.’s

prior statements about the differing times J.S. gave for waking Shepherd, what 

J.S. knew about A.F.’s condition when he wrote the short school essay, and his 

initial false claim that he had performed CPR on A.F. J.S. acknowledged 

having made inconsistent statements on these and other topics and offered 

explanations for why he had done so. Therefore, impeachment was complete, 

and the trial court did not abuse its discretion in excluding J.S.’s videotaped 

interview for impeachment purposes under the Trial Rules. See id. 

[27] Our supreme court has observed that, at times, the evidentiary rules must yield 

to a defendant’s right to cross-examine the witnesses against him. State v. 

Walton, 715 N.E.2d 824, 827 (Ind. 1999). However, it is equally true that the 

Confrontation Clause only guarantees an opportunity for effective crossexamination; it does not guarantee cross-examination in whatever manner or 

extent desired by a defendant. Fowler v. State, 829 N.E.2d 459, 469 (Ind. 2005). 

We cannot say that Shepherd was denied his right to cross-examine J.S. when 
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the trial court prevented him from showing the jury J.S.’s demeanor through

publication of the video recordings of the interviews. First and foremost, J.S. 

testified at trial and was subject to extensive cross-examination and direct 

questioning by Shepherd about his prior statements and other matters, so the 

jury had a first-hand opportunity to assess J.S.’s credibility as a witness in open 

court. Shepherd explicitly questioned J.S. about why his demeanor had 

changed between the rapport-building and substantive portions of the 

interviews. J.S. explained that he moves his body when he is nervous and that 

he was nervous when he spoke to the police. In addition, when Shepherd 

called J.S. as a witness during his own case, the trial court allowed Shepherd to 

play a small portion of J.S.’s first interview with police in an effort to refresh his 

memory on a matter, so the jury did, in fact, have a short opportunity to view 

his demeanor during that interview. We would also note that, because this

short portion of J.S.’s first interview was played before the jury, it also had an 

opportunity to assess J.S.’s physical size at the time of the events, another basis 

for admission Shepherd argued to the trial court. 

[28] Shepherd also alludes to “due process” in this section of his argument, but he 

does not develop any independent argument on that claim. (Appellant’s Br. pp. 

27, 29). Indiana Appellate Rule (A)(8)(a) provides that appellate arguments 

must be supported by citation to legal authority and cogent reasoning. Failure 

to do so results in waiver of an issue for our consideration. Griffith v. State, 59 

N.E.3d 947, 958 n.5 (Ind. 2016). We conclude that Shepherd has waived his 

due process argument and do not address it. Because the video recordings of 
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J.S.’s police interviews were inadmissible under the Trial Rules and Shepherd 

had an opportunity to effectively cross-examine J.S., we conclude that his right 

to confrontation and cross-examination was not infringed and the trial court did 

not abuse its discretion in excluding the proffered evidence. 

III. Voluntary Manslaughter Instruction

[29] Shepherd next claims that the trial court “committed fundamental error when it 

gave the voluntary manslaughter instruction in the absence of sudden heat.” 

(Appellant’s Br. p. 30). However, although the jury found Shepherd guilty of 

voluntary manslaughter, prior to rendering sentence, the trial court vacated that 

conviction. “Mootness arises when the primary issue within the case has been 

ended or settled or in some manner disposed of, so as to render it unnecessary 

to decide the question involved.” C.J. v. State, 74 N.E.3d 572, 575 (Ind. Ct. 

App. 2017) (quotation omitted), trans. denied. Put another way, when a court is 

not able to render effective relief to a party, the case is deemed moot and subject 

to dismissal. Id. Here, because the trial court vacated Shepherd’s voluntary 

manslaughter conviction, there is nothing upon which we may render relief. 

We conclude that Shepherd’s claim based upon the trial court’s giving of the 

voluntary manslaughter instruction is moot, and we decline to address it.

IV. Admission of Images from Shepherd’s Cell Phone

[30] Shepherd contends that the trial court abused its discretion in admitting the 

seven photographs of A.F.’s tongue injury procured from the execution of the

search warrant for his cell phone because the return of the search warrant was 

defective. We review a trial court’s decision to admit photographic evidence for 
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an abuse of discretion. Ward v. State, 903 N.E.2d 946, 958 (Ind. 2009). An 

abuse of discretion occurs when the trial court’s evidentiary ruling is clearly 

against the logic and effect of the facts and circumstances before it. Glasgow v. 

State, 99 N.E.3d 251, 256 (Ind. Ct. App. 2018). 

[31] Indiana Code section 35-33-5-4(1) requires the officer who executes a search 

warrant to make a return of the warrant indicating the date and time the 

warrant was served and listing the items seized. The statute does not require 

that the return be filed within any specific period of time. Id.; Webster v. State, 

579 N.E.2d 667, 670 (Ind. Ct. App. 1991). We will not find reversible error in 

the admission of evidence where the manner of the return was defective unless 

the defendant has demonstrated that he was prejudiced. See Owens v. State, 659 

N.E.2d 466, 478 (Ind. 1995) (upholding the admission of evidence where no 

return was ever filed because Owens had not shown that he was prejudiced 

from the failure to file). 

[32] Here, Detective Bogner filled out the return of the search warrant on Shepherd’s 

cell phone on April 4, 2017, the same day that the warrant was executed on the 

cell phone by Detective Whited. The return on the search warrant was not filed 

with the trial court until August 16, 2018, the day of the first hearing on 

Shepherd’s motion to suppress. The return indicates that the search warrant 

was “received” on April 4, 2017, at 2:40 p.m., although Detective Bogner 

indicated at the hearings on the motion to suppress that was the date and time 

that the search warrant was executed. (Supp. Exh. Vol. p. 7). The return 

provides that data was seized pursuant to the search warrant. 
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[33] Shepherd argues that the return was defective because it was not returned to the 

judicial officer who issued the search warrant, it was not filed until the day of 

the first suppression hearing, the return does not specify when the warrant was 

executed, and Detective Bogner signed the return electronically. Apart from 

the failure to accurately word the date and time of the execution of the warrant, 

these allegations do not present true defects in the return, as the statute provides 

that the return may be filed with the “court or judge” who issued the warrant, 

the statute does not specify a time limit for the return of the warrant, and 

nothing in the statute precludes the use of an electronic signature. See I.C. § 35-

33-5-4.

[34] More importantly, Shepherd has failed to demonstrate that he was prejudiced 

by any defects in the warrant itself or by the State’s failure to file it until the 

suppression hearing. Shepherd claims that he was prejudiced because the 

return failed to articulate how the data was extracted, copied, or stored upon 

execution of the warrant. This is not a valid claim of prejudice because the 

search warrant return statute does not require that information to be included in 

the return. See id. Shepherd also claims that the failure to file the return 

constituted a “failure to provide sufficient information in [a] timely fashion so 

as to permit the defense to adequately examine and challenge the evidence 

obtained via such a faulty process.” (Appellant’s Br. p. 37). However, on 

August 16, 2018, the day of the first suppression hearing and the filing of the 

return, the State filed a supplemental discovery response and served Shepherd 

with a copy of Detective Whited’s report detailing the methods used to extract 
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 21 of 27

the data and what was extracted. Shepherd’s trial did not commence until 

August 12, 2019. Shepherd did not object at trial that the substance or manner 

of the search warrant’s return prevented him from adequately researching and 

challenging the cell phone evidence between the suppression hearing and his 

trial. Thus, Shepherd has failed to persuade us that he was prejudiced by the

filing of the return, and we find no abuse of the trial court’s discretion in 

admitting the images procured pursuant to the search warrant issued for the 

contents of Shepherd’s cell phone. See Owens, 659 N.E.2d at 478. 

IV. Proportionality of Sentence

[35] Shepherd next argues that the trial court’s decision to vacate his voluntary 

manslaughter conviction and sentence him only for Level 1 felony aggravated 

battery violated the Proportionality Clause of the Indiana Constitution which 

provides that “[a]ll penalties shall be proportioned to the nature of the offense.” 

Ind. Const. art. I, § 16. The Legislature has the exclusive authority to define 

crimes and establish penalties. Brantley v. State, 91 N.E.3d 566, 571 (Ind. 2018). 

In light of this exclusive authority, when addressing challenges based on the 

Proportionality Clause, separation-of-powers principles mandates that we 

afford substantial deference to the sanction chosen by the Legislature. Mann v. 

State, 895 N.E.2d 119, 122 (Ind. Ct. App. 2008). Therefore, “[w]e will not 

disturb the legislative determination of the appropriate penalty for criminal 

behavior except upon a showing of clear constitutional infirmity.” State v. MossDwyer, 686 N.E.2d 109, 111-12 (Ind. 1997). The penalty for an offense set by 

the Legislature is not unconstitutional under the Proportionality Clause unless 
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“it is so severe and entirely out of proportion to the gravity of the offense 

committed as to shock public sentiment and violate the judgment of reasonable 

people.” Murrell v. State, 960 N.E.2d 854, 858 (Ind. Ct. App. 2012). 

[36] Shepherd’s argument is based upon a comparison of the voluntary 

manslaughter and aggravated battery statutes, so it is necessary to set out the 

elements of those offenses and their penalties. A person commits Level 2 felony 

voluntary manslaughter when he intentionally or knowingly kills another 

human being while acting under sudden heat. I.C. § 35-42-1-3(a). Sudden heat 

is a mitigating factor that reduces an offense that otherwise would be murder. 

I.C. § 35-42-1-3(b). ‘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.” Dearman v. State, 743 N.E.2d 757, 760 (Ind. 

2001). The essence of the offense of voluntary manslaughter is that an impetus 

to kill suddenly overwhelms a defendant. Stevens v. State, 691 N.E.2d 412, 427 

(Ind. 1997). As for Level 1 felony aggravated battery, it is committed when a 

person intentionally or knowingly inflicts injury on a person that creates a 

substantial risk of death and results in the death of a child less than fourteen 

years of age. I.C. § 35-42-2-1.5. The maximum sentence for a Level 2 felony is 

thirty years, while the maximum sentence for a Level 1 felony is forty years. 

Compare I.C. § 35-50-2-4.5 with I.C. § 35-50-2-4(b). 

[37] Shepherd argues that his thirty-five-year sentence for aggravated battery results 

in an anomaly in that “the same acts supporting a conviction for a knowing or 
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 23 of 27

intentional killing are more substantially punished as a knowing or intentional 

act of inflicting injury, [i.e.] without the intent to kill.” (Appellant’s Br. p. 39). 

However, the presence of sudden heat mitigates the offense of murder precisely 

because it interferes with knowing or intentional action. See Dearman, 743 

N.E.2d at 760. Our Legislature could have rationally chosen to impose a more 

severe punishment where knowing and intentional action results in death (Level 

1 felony aggravated battery) than where death has resulted when action was not 

fully knowing and intentional because of sudden heat (voluntary manslaughter). 

Accordingly, we find no violation of Indiana’s Proportionality Clause. 

[38] In this section of his argument, Shepherd also argues that his sentencing for 

aggravated battery violated his due process rights because he was deprived of 

the benefit of the jury’s finding that he had acted in sudden heat. Shepherd 

cites no legal authority for his proposition, and we are aware of none. The trial 

court vacated Shepherd’s voluntary manslaughter conviction due to double 

jeopardy concerns. Shepherd acknowledges that his dual convictions for 

voluntary manslaughter and aggravated battery could not stand. When faced 

with dual convictions that offend double jeopardy principles, our supreme court 

has remedied that violation by vacating the offense that carried the lesser 

criminal penalty. See Jenkins v. State, 726 N.E.2d 268, 271 (Ind. 2000) (vacating 

Jenkins’ robbery conviction instead of his felony murder conviction); see also

Wadle v. State, — N.E.3d —, 2020 WL 4782698, *18 (Ind. Aug. 18, 2020)

(vacating Wadle’s Level 5 felony OWI-SBI conviction while leaving in place his 

Level 3 felony conviction for leaving the scene). Therefore, we find no error on 
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 24 of 27

the part of the trial court in vacating Shepherd’s Level 2 felony voluntary 

manslaughter conviction. 

V. Inappropriateness of Sentence

[39] Shepherd also requests that we review the appropriateness of his thirty-five-year 

sentence. “Even when a trial court imposes a sentence within its discretion, the 

Indiana Constitution authorizes independent appellate review and revision of 

this sentencing decision.” Hoak v. State, 113 N.E.3d 1209, 1209 (Ind. 2019). 

Thus, we may revise a sentence if, after due consideration of the trial court’s 

decision, we find that the sentence is inappropriate in light of the nature of the 

offenses and the character of the offender. Id. The principal role of such review 

is to attempt to leaven the outliers. Cardwell v. State, 895 N.E.2d 1219, 1225 

(Ind. 2008). The defendant bears the burden to persuade the reviewing court 

that the sentence imposed is inappropriate. Robinson v. State, 91 N.E.3d 574, 

577 (Ind. 2018). 

A. Nature of the Offense

[40] When assessing the nature of an offense, the advisory sentence is the starting

point that the legislature selected as an appropriate sentence for the particular 

crime committed. Perry v. State, 78 N.E.3d 1, 13 (Ind. Ct. App. 2017). The trial 

court entered judgment of conviction and sentenced Shepherd only for his Level 

1 felony aggravated battery conviction. A Level 1 felony has a minimum 

sentence of twenty years and a maximum sentence of forty years, with an 

advisory sentence of thirty years. I.C. § 35-50-2-4(b). The trial court imposed a 
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 25 of 27

moderately-enhanced sentence of thirty-five years and suspended five years to 

probation. 

[41] When reviewing the nature of the offense, we look to the “the details and 

circumstances of the commission of the offense and the defendant’s 

participation.” Perry, 78 N.E.3d at 13. Shepherd maintains his innocence and, 

therefore, does not offer any argument that his sentence was inappropriate in 

light of the nature of his offense. However, Shepherd was found guilty by the 

jury of the offense of aggravated battery, and we have concluded that the State 

proved the offense beyond a reasonable doubt. Aggravated battery is a Level 1 

felony if it results in the death of a person less than fourteen years old. I.C. § 

35-42-2-1.5. A.F. was less than two years old when she died, so the age of the 

victim in this case was much younger than that necessary to prove the offense, 

rendering Shepherd’s offense more egregious. As Harper’s partner and A.F.’s 

caretaker, Shepherd was in a position of trust with A.F. Instead of protecting 

A.F. during the early hours of February 21, 2017, Shepherd drank tequila and 

beat A.F. to death. There is evidence in the record suggesting that Shepherd 

was upset that day that Harper had a continuing relationship with A.F.’s father

and that A.F. had been crying. The injuries Shepherd inflicted to A.F.’s head 

were so forceful that they caused the sections of her skull to separate and 

penetrated to her brain. The injuries Shepherd inflicted to A.F.’s abdomen 

caused massive internal bleeding that shut down her organs. Either of these sets 

of injuries would have been enough to cause A.F.’s death, so the harm that 

Shepherd caused to A.F. was far greater than that necessary to prove the 
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 26 of 27

offense, which also makes his offense more egregious. All of this occurred 

within ten-year-old J.S.’s hearing. In short, we find nothing about the nature of 

Shepherd’s offense which renders the moderately-enhanced sentence imposed 

here inappropriate. 

B. Character of the Offender

[42] Shepherd urges us to revise his sentence in light of his character. Upon 

reviewing a sentence for inappropriateness, we look to a defendant’s life and 

conduct as illustrative of his character. Morris v. State, 114 N.E.3d 531, 539 

(Ind. Ct. App. 2018), trans. denied. Shepherd directs our attention to his lack of 

criminal record prior to the instant offenses, his positive relationships with his 

own six children and others, and his employment record. However, we find the 

fact that Shepherd was on pre-trial release on a charge of Level 6 felony 

domestic battery against the mother of one of his children at the time he 

committed the instant offense, evidence in the record that Shepherd attempted 

to procure Harper’s cooperation in fashioning a version of events favorable to 

him, and his daily marijuana use prevent us from adjusting his sentence based 

on his lack of a criminal record. In addition, after severely beating A.F., 

Shepherd knew at the very least that he had inflicted serious injuries to A.F.’s 

tongue, yet instead of seeking assistance for her, he took photographs of her 

injuries and went to sleep. We find this to be more illustrative of Shepherd’s 

character than the sentencing testimony and materials offered to the trial court 

by his friends and family or the two jobs he listed in his presentence 
Court of Appeals of Indiana | Opinion 20A-CR-179 | September 30, 2020 Page 27 of 27

investigation report. Accordingly, we decline to revise Shepherd’s sentence in 

light of his character. 

CONCLUSION

[43] Based on the foregoing, we conclude that the State proved beyond a reasonable 

doubt that Shepherd inflicted A.F.’s injuries; the trial court did not abuse its 

discretion in excluding J.S.’s video-recorded interviews; Shepherd’s 

instructional claim is moot; the trial court acted within its discretion in 

admitting the images seized from Shepherd’s cell phone; Shepherd’s sentence 

does not violate Indiana’s Proportionality Clause; and Shepherd’s sentence is 

not inappropriate.

[44] Affirmed. 

[45] May, J. and Altice, J. concur