ATTORNEYS FOR APPELLANT

David D. Kiely

Evansville, Indiana

John D. Clouse

John P. Brinson

Evansville, Indiana    

ATTORNEYS FOR APPELLEE

Jeffrey A. Modisett

Attorney General of Indiana

James A. Garrard     

Deputy Attorney General

Indianapolis, Indiana  

	IN THE

	SUPREME COURT OF INDIANA

RICKY RICARDO FENTRESS,		)

   						)

	Appellant (Defendant Below), 	)	 

						)	

	v.					)	Supreme Court

 						)	Cause No. 82S00-9712-CR-693

STATE OF INDIANA,	    		)	

						)

	Appellee (Plaintiff Below).	)

	APPEAL FROM THE VANDERBURGH CIRCUIT COURT

	The Honorable Richard Young, Judge 

	Cause No. 82C01-9704-CF-382    

	ON DIRECT APPEAL

December 10, 1998

BOEHM, Justice.

A jury convicted Ricky Ricardo Fentress of murder and Fentress also pleaded guilty

to an habitual offender charge.  The trial court sentenced Fentress to seventy years in prison. 

In this direct appeal Fentress raises only one issue:  did the trial court err by admitting into

evidence two photographs taken by a pathologist during the autopsy of the victim?1 

Factual and Procedural Background

On April 10, 1997, Fentress and Bobby Stuart, the victim, were drinking alcohol with several others in a vacant lot in Vandenrburgh County.  At some point a fist fight broke out

between Fentress and Stuart.  After Fentress sustained a cut lip he left the site while the

others, including Stuart, continued drinking.

According to eyewitness testimony, Fentress returned after approximately ten to

twenty minutes carrying a stick.  Stuart tried to flee when he perceived Fentress approaching,

but fell to the ground.  Fentress then hit the fallen Stuart with the stick two or more times,

and stopped only when one of the witnesses told him to stop hitting the victim.  Stuart’s skull

was shattered and he died from excessive trauma to his head.

The jury was instructed on both voluntary manslaughter and murder and found

Fentress guilty of murder.  This court has jurisdiction of Fentress’s appeal under Indiana

Appellate Rule 4(A)(7).

Photographic Evidence

Fentress argues that the trial court erred when, over his objection, it admitted into

evidence two photographs taken by a pathologist during the autopsy of the victim.  The

photographs depict the victim’s shattered skull with the hair and skin pulled away from it. 

In one photograph, the pathologist’s gloved thumb is visible.  Fentress argues that the

photographs are highly inflammatory and prejudicial because they depict the victim’s body

in a state altered from that at the crime scene.  Fentress contends that any relevance of the

two photographs is outweighed by the danger that they prejudiced the jury to return a murder

verdict rather than manslaughter.   

We review the trial court’s admission of photographic evidence for an abuse of

discretion.  Humphrey v. State, 680 N.E.2d 836, 842 (Ind. 1997).  Relevant evidence is evidence that has “any tendency to make the existence of any fact that is of consequence to

the determination of the action more probable or less probable than it would be without the

evidence.”  Ind. Evidence Rule 401.   However, relevant evidence “may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice[.]”  Evid. R.

403.  

Here the two photographs were admitted into evidence after the pathologist had

explained the nature of the victim’s injury and other photographs of the victim’s injuries

taken during the autopsy were already in evidence.  The pathologist had told the jury in great

detail that, in order to determine the extent of the damage to the victim’s skull, he needed to look under the skin.  The pathologist also described to the jury the nature of the victim’s

injuries that he uncovered and the likely cause of those injuries.

The State contends that the photographs were probative of Fentress’s intent to kill

because they show the extent of the damage caused by the blows to the victim’s head, and

the other autopsy pictures did not.  The State also contends that the two photographs

illustrated the pathologist’s testimony.  Fentress responds that the pathologist’s testimony

itself was enough evidence of the extent of the victim’s injuries.  In Allen v. State, 686 N.E.2d 760, 776 (Ind. 1997), petition for cert. filed (U.S. Aug. 28, 1998) (No. 98-5855), where a substantially similar photograph was offered as evidence because the victim’s hair

obscured the wound, we observed that “autopsy photographs are generally inadmissible if

they show the body in an altered condition” because they may impute to the defendant the

work of the pathologist.  In this case, however, the pathologist described the procedure and

its outcome to the jury and the jury also had pictorial evidence of the victim prior to the

procedure.  The potential for confusion is minimal.  Moreover, because the injury was the

result of a blow with a blunt instrument and the damage to the shattered skull was visible

only if the victim’s skin was pulled back, the trial court was within its discretion in

determining that the probative value of this evidence -- to show the force of the blow which

in turn bore on the intent to kill -- outweighed its prejudicial effect.

Conclusion

The conviction is affirmed.

SHEPARD, C.J., and DICKSON, SULLIVAN and SELBY, JJ., concur.