BIRGE v. STATE (2025)

MEMORANDUM DECISION

Statement of the Case

[1] James Birge (“Birge”) appeals his conviction, following a jury trial, of Level 1 felony attempted murder.¹ He argues that the trial court abused its discretion when it admitted certain evidence. Concluding that any error in the admission of this evidence was harmless because Birge's conviction was supported by substantial independent evidence of Birge's guilt, we affirm the trial court's judgment.

[2] We affirm.

Facts

[3] In February 2021, thirty-year-old Birge was involved in a relationship with Jaztin Smith (“Smith”). Smith had previously been involved in a thirteen-year on and off relationship with Zachary Simmons (“Simmons”), who goes by the nickname “Six[.]” (Tr. Vol. 3 at 26). Smith and Simmons have four young children. On February 13, Smith picked Simmons up at his house at 9:00 p.m. and took him to her house so that he could visit their children.

[4] Shortly thereafter, Birge, who had learned that Simmons was at Smith's home, began sending Smith social media messages. At 10:01 p.m., Birge sent Smith the following message: “Wats up I was told [you] were staying with 6 tonight[.]” (Ex. Vol. 1 at 22) (grammatical errors misspelling in the original). Forty minutes later, Smith responded to Birge as follows: “Not and I'll call in a bit[.]” (Ex. Vol. 1 at 33).

[5] From 11:00 p.m. until 1:00 a.m., Birge sent Smith the following social media messages:

So r u starting to try to work up the nerve to break up with me or do I get to hold and cuddle my woman tonight

I'm juat askin cause that's how it feels

?????

I just worry babe I know how it is and what ur going through but I'm here for u and we will get through this with eachother

God I suck at this I know ur loyal I know I can trust u and I know u really do love me it shows

(Ex. Vol. 1 at 24-26, 28, 31) (grammatical errors in the originals). Smith did not respond to any of these messages. Birge also attempted to telephone Smith several times, but Smith did not answer the calls. Birge's last attempted call to Smith was at 3:00 a.m. on February 14.

[6] At 3:38 a.m. on February 14, Birge sent the following social media message to Simmons: “My ol lady there with u??? If so send a pic as proof cause everyone saying she went to be with u tonight ․ I gave her back ur shoes too ․ Hit me up we grew up together[.]” (Ex. Vol. 1 at 4) (grammatical errors and misspellings in the original). Simmons, who had fallen asleep with his daughter on the floor while they were watching mermaid videos on his cell phone, did not respond to Birge's message.

[7] At approximately 5:00 a.m., Simmons was awakened by Birge knocking at the front door of Smith's house. Simmons, who had known Birge for several years, knew that it was Birge at the door because Simmons could hear Birge asking Smith to come to the door. Simmons, who also knew that Birge and Smith were dating, opened the door and told Birge that he would be leaving Smith's house soon and that Birge could return later.

[8] Simmons noticed that Birge's hands, which were in his pockets, were shaking. Birge, with his hands still in his pockets, then began shooting a gun at Simmons. When Simmons realized that he had been shot in the chest, he slammed the door and told Smith to call 911. However, the batteries in both Smith's and Simmons’ cell phones were dead. Smith, Simmons, and their children got into Smith's car and headed to the hospital.

[9] On the way to the hospital, Smith noticed a police car at a stop sign. She stopped her car and called out to the police officer that someone had been shot. The police officer approached Smith's car and saw Simmons lying in the back seat with the children. The officer asked Simmons several times who had shot him, and Simmons responded each time that James Birge had shot him. An ambulance arrived and transported Simmons to the Vincennes hospital. Hospital staff immediately arranged for Simmons to be lifelined by helicopter to a hospital in Evansville.

[10] Following the shooting, Birge went to a friend's mother's house, which was located five to six blocks from Smith's house. Birge knocked at the door and asked the friend for a ride. Birge's friend refused to give Birge a ride but told him that he could borrow her bicycle. Birge left the area on the bicycle.

[11] The State charged Birge with Level 1 felony attempted murder. Three days later, law enforcement officers located Birge in Kentucky and arrested him.

[12] At Birge's October 2023 trial, the jury heard the facts as set forth above. In addition, during Simmons’ testimony, when the State asked Simmons how sure he was that it was Birge who had shot him, Simmons responded, “100 percent.” (Tr. Vol. 3 at 45). Further, during the trial, the following colloquy ensued between the State and Vincennes Police Department Officer Doug Lowe (“Officer Lowe”):

[THE STATE]: All right. During your investigation was it determined that James Birge was, let's say a suspect?

[OFFICER LOWE]: Yes.

[THE STATE]: Okay. He's likely the person who did it, correct?

[OFFICER LOWE]: Yes

(Tr. Vol. 3 at 169). Birge did not object to Officer Lowe's testimony.

[13] After the State had rested, Birge called a friend, Sammy Donaldson (“Donaldson”), to the witness stand. Donaldson testified that she had known Birge for three to five years and that he had been at her house from the evening of February 13, 2021 until 7:00 or 8:00 a.m. on February 14, 2021. According to Donaldson, she had been awake the entire time that Birge had been at her house and she had not seen him send any social media messages to Smith. During the State's cross-examination of Donaldson, she acknowledged that she had a 2021 false informing conviction for lying to law enforcement officers. Donaldson also acknowledged that Birge had texted her the previous evening and reminded her that she had to testify that day. She further acknowledged that she had responded to Birge's text message with the following text message: “[W]ell, gee, thanks. No pressure there at all LOL․ [N]ow tell me who loves you more[.]” (Tr. Vol. 3 at 185).

[14] The following morning, during the State's rebuttal, the State called Birge's brother, Walter Manning (“Manning”) to the witness stand. Manning testified that he had not known that he was going to be called as a witness until that morning when law enforcement officers had arrived at his house and told him that they were going to take him to court to testify at Birge's trial. Manning, who was not aware of Donaldson's testimony, testified that Birge had been at his house on the evening of February 13, 2021, and that Birge had not left his house until daylight on the morning of February 14, 2021. Manning further testified that although Donaldson had been in and out of his house that night, Birge had not gone to Donaldson's house.

[15] The jury convicted Birge of Level 1 felony attempted murder, and Birge admitted that he had used a firearm during the commission of the offense. The trial court sentenced him to thirty (30) years for the attempted murder conviction and enhanced the thirty-year sentence by fifteen (15) years because Birge had used the firearm during the commission of the offense. Further, the trial court ordered Birge to serve thirty-five (35) years in the Department of Correction, five (5) years in a community corrections program, and five (5) years on probation.

[16] Birge now appeals.

Decision

[17] Birge's sole contention is that the trial court abused its discretion when it allowed Officer Lowe to testify that Birge was likely the person who had shot Simmons. We review evidentiary rulings for an abuse of discretion. Snow v. State, 77 N.E.3d 173, 176 (Ind. 2017). An abuse of discretion occurs when the trial court's ruling is clearly against the logic and effect of the facts and circumstances. Id.

[18] Here, however, Birge acknowledges that he did not object to Officer Lowe's testimony. To preserve a claim for appellate review, a party must object to the trial court's ruling and state the reasons for the objection. Durden v. State, 99 N.E.3d 645, 651 (Ind. 2018). A party's failure to object to an alleged error at trial results in waiver of the issue on appeal. Id.

[19] In an attempt to avoid waiver, Birge argues that “[a]llowing such testimony constitutes fundamental error.” (Birge's Br. 11). “An error is fundamental, and thus reviewable on appeal, if it made a fair trial impossible or constituted a clearly blatant violation of basic and elementary principles of due process presenting an undeniable and substantial potential for harm.” Durden, 99 N.E.3d at 652 (cleaned up). However, this exception is “extremely narrow and encompasses only errors so blatant that the trial judge should have acted independently to correct the situation.” Id. (cleaned up).

[20] Birge has waived appellate review of his fundamental error argument because his cursory argument is supported neither by citation to authority nor cogent argument. See Smith v. State, 822 N.E.2d 193, 202-03 (Ind. Ct. App. 2005) (“Generally, a party waives any issue raised on appeal where the party fails to develop a cogent argument or provide adequate citation to authority and portions of the record.”), trans. denied.

[21] Waiver notwithstanding, we find the admission of Officer Lowe's statement to be harmless error rather than fundamental error. The basic premise of the harmless error rule is “that a conviction may stand when the error had no bearing on the outcome of the case. Durden, 99 N.E.3d at 652. Under Indiana Appellate Rule 66(A), an error is harmless “where its probable impact, in light of all the evidence in the case, is sufficiently minor so as not to affect the substantial rights of the parties.” The party seeking relief bears the burden of demonstrating how “the error's probable impact undermines confidence in the outcome of the proceeding below.” Hayko v. State, 211 N.E.3d 483, 492 (Ind. 2023), reh'g denied, cert. denied. We consider the likely impact of improperly admitted evidence on a reasonable, average jury considering all evidence in the case. Id. If substantial independent evidence of guilt exists and our confidence in the outcome is not undermined, the error is harmless. Id.

[22] Here, we need not determine whether the trial court abused its discretion in allowing Officer Lowe's testimony because there was substantial independent evidence of Birge's guilt. Specifically, our review of the evidence reveals that, on the night of February 13, 2021 and in the early morning hours of February 14, 2021, Birge sent Smith multiple social media messages expressing concern that Simmons was at her house and wondering if she was going to break up with him. Birge also attempted to telephone Smith several times. Smith responded to only one of Birge's social media messages, and she did not respond to any of his calls.

[23] At 3:30 a.m. on February 14, Birge sent Simmons a social media message asking him if Smith was with him, but Simmons did not respond. Ninety minutes later, at 5:00 a.m., Birge showed up at Smith's house and asked Smith to let him in. Simmons, who had known Birge for many years, recognized Birge's voice. Simmons, who also knew that Birge and Smith were dating, opened the door and told Birge that he would be leaving Smith's home soon and that Birge could return later. Birge then shot Simmons in the chest. Simmons subsequently told a police officer several times that Birge had shot him. He also identified Birge with 100 percent certainty at trial. In addition, following the shooting, Birge went to a friend's mother's house, which was located in the vicinity of Smith's house, and asked for a ride. Lastly, law enforcement officers subsequently arrested Birge in Kentucky a few days after the shooting. Because Birge's conviction is supported by substantial independent evidence of his guilt and our confidence in the outcome is not undermined, we conclude that any error in the admission of this evidence was harmless.

[24] Affirmed.

FOOTNOTES

1.   Ind. Code § 35-42-1-1 and I.C. § 35-41-5-1.

Pyle, Judge.

May, J., and Brown, J., concur.