Massa, J.
This case presents the unusual and rare circumstance where a defendant is charged with voluntary manslaughter without also being charged with murder. At trial, the State conceded the existence of sudden heat to support the standalone charge and a jury found Billy Brantley guilty. …
Billy Brantley lived in Indianapolis with his sister, Martha Gunn; brother-in-law, Bruce Gunn; and their son, Sean. Brantley had known Bruce for eighteen years and previously lived with Martha and Bruce when Brantley was in high school and after spending some time in the military.
Bruce was retired and suffered from physical and mental health problems. … Bruce’s poor health often translated into anger, making him a volatile figure in the home. He and Martha fought often and more than once Martha feared for her life at his hands. …
On July 14, 2014, Brantley woke up around 9:00 AM, showered, and got ready for a job interview scheduled for 10:00 AM. …
An hour or so later, Brantley arrived home and warmed himself some leftover pizza in the kitchen. He could hear Bruce and Martha arguing, but assumed their screaming was just the usual type of fighting that occurred between them. Although he could sense the tension, Brantley joined them in the living room so he could eat in front of the television. …
Bruce would not calm down and became increasingly irate. He turned his attention to Brantley and told him he was “‘getting ready to get rid of all [his] problems right now.’” Then Bruce “lunged” from his chair, and Brantley and Martha each noticed his fist was clenched around something shiny. Brantley thought it was a knife because Bruce was known for keeping sharp objects, including knives, in his chair. Fearing Bruce was going to “kill” or “destroy” him, Brantley drew his gun and told Bruce to stop. But Bruce continued toward him and Brantley fired. Bruce fell to the ground.
… Martha then called 911. … When police arrived, they found Bruce’s body crumpled on the floor next to his glasses—the shiny object Brantley and Martha had seen.
Brantley was charged with one count of voluntary manslaughter. At trial, Brantley claimed self-defense, and both he and Martha testified to that effect. The State, however, pointed to inconsistencies between Brantley’s version of events and the physical evidence to undermine the defense. The trial court’s proposed final instructions included instructions on self-defense, voluntary manslaughter, and the definition of sudden heat. Regarding voluntary manslaughter, the instruction provided that “sudden heat is a mitigating factor” and “[t]he State has conceded the existence of sudden heat by charging Voluntary Manslaughter instead of Murder.” Prior to the end of trial, Brantley and the State were given the opportunity to review the instructions. Each indicated the instructions were correct. The jury found Brantley guilty, and he was subsequently sentenced to ten years with five years suspended.
The Court of Appeals reversed Brantley’s conviction. In doing so, it declined to address issues of instructional error and whether such error was invited, instead holding that the State failed to present sufficient evidence that Brantley acted with sudden heat and, therefore, the State was barred from retrial. Brantley v. State, 71 N.E.3d 397, 401, 403-04 (Ind. Ct. App. 2017). …
We now grant the State’s petition to transfer and vacate the Court of Appeals opinion. Ind. Appellate Rule 58(A).
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As a preliminary matter, we address whether voluntary manslaughter may be brought as a standalone charge. We find that it can.
While it is true that in most cases voluntary manslaughter is charged as a lesser-included offense to a murder charge, “[t]he authority to define crimes and establish penalties” is vested exclusively in the legislature as a matter of public policy and discretion. State v. Downey, 476 N.E.2d 121, 122-23 (Ind. 1985). …
Turning to the merits, we must determine, first, whether sudden heat is an element or a mitigating factor to a freestanding charge of voluntary manslaughter; and, second, who bears the burden of proving sudden heat. … We find that sudden heat is a mitigating factor. However, there must be some evidence of sudden heat, not merely a concession, to enable the factfinder to evaluate a defendant’s culpability.
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Turning to the record in this case, we find there was evidence of sudden heat, although scant. … Evidence of sudden heat may be found in either the State’s case or the defendant’s. Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999). It is up to “the jury to decide whether the evidence presented constitute[s] sudden heat sufficient to warrant a conviction for voluntary manslaughter.” Bane, 587 N.E.2d at 100.
… So, when Bruce angrily rose from his chair, after telling Brantley he was “‘getting ready to get rid of all [his] problems right now’” and Brantley’s eye caught something shiny in Bruce’s hand, it was well within the jury’s province to consider whether Brantley experienced terror and had the sudden impetus to kill. See Fisher v. State, 671 N.E.2d 119, 121 (Ind. 1996) …
This terror brings us to the next issue: whether the State’s concession of sudden heat nullified Brantley’s claim of self-defense. Brantley argues that it did because the self-defense defense completely excuses conduct based on the rational decision that force is necessary to protect oneself, whereas a person acting in sudden heat is incapable of rational thought. …
…. Included in the court’s instructions was the State’s concession. Although Brantley did not object at trial, he now seeks to avoid waiver by claiming fundamental error. See Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014) … However, we find that, if any error occurred, it was invited. Wright v. State, 828 N.E.2d 904, 907 …
Invited error notwithstanding, claims of self-defense and killing in sudden heat are not inherently inconsistent and, in appropriate circumstances, juries may be instructed on both. Pinegar v. State, 553 N.E.2d 525, 528 (Ind. Ct. App. 1990) …
A defendant acts in self-defense when confronted with “real danger of death or great bodily harm, or in such apparent danger as caused him, in good faith, to fear death or great bodily harm. The danger need not be actual, but the belief must be in good faith and the reaction must be reasonable.” Franklin v. State, 266 Ind. 540, 544, 364 N.E.2d 1019, 1021 (1977) … In other words, the same evidence can either mitigate murder or excuse it altogether. See Palmer v. State, 425 N.E.2d 640, 644 (Ind. 1981). It’s the jury’s call. Here, faced with competing evidence, the jury rejected Brantley’s self-defense defense, a decision we affirm.
Because we find the record contained evidence of sudden heat and the jury properly rejected Brantley’s self-defense defense, we grant transfer and affirm his conviction for voluntary manslaughter.
Rush, C.J., and David, Slaughter, and Goff, JJ., concur.