Pursuant to Ind.Appellate Rule 65(D), this

Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT : ATTORNEYS FOR APPELLEE : RYAN D. BOWER GREGORY F. ZOELLER Salem, Indiana Attorney General of Indiana KARL M. SCHARNBERG Deputy Attorney General Indianapolis, Indiana



## IN THE COURT OF APPEALS OF INDIANA

ROBERT F. PETTY , ) ) Appellant

- Defendant , ) ) vs. ) No. 72A05

- 1305

- CR

- 237 ) STATE OF INDIANA, ) ) Appellee

- Plaintiff

. )

APPEAL FROM THE SCOTT CIRCUIT COURT The Honorable Frank Newkirk, Special Judge Cause No. 72C01

- 1009

- MR

- 1
May 7, 2014 MEMORANDUM DECISION

– NOT FOR PUBLICATION RILEY, Judge2 STATEMENT OF THE CASE Appellant

- Defendant, Robert Petty (Petty), appeals his conviction for Count I, voluntary manslaughter , Ind. Code § 35

- 42

- 1

- 3 ; Count II, removal of body from sce ne, a Class D felony, I.C. § 36

- 2

- 14

- 17; and Count III, obstruction of justi ce, a Class D felony, I.C. § 35

- 44

- 3

- 4. We affirm.
ISSUES Petty raises four issues on appeal which we re state as follows: (1) Whether trial court abused its discretion in admitting several autopsy photographs; (2) Wh ether the trial court failed to tender the proper jury instructions ; (3) Whether there was sufficient evidence to prove beyond a reasonable doubt Petty ’s conviction of voluntary manslaughter ; and (4) Whether Petty’s sentence is inappropriate

.

FACTS AND PROCEDURAL HISTORY On April 7, 2007, Petty married Nina Keown (Keown) , and welcomed their daughter , B.P. , a month later

. On October 9, 2009, Petty and Keown divorced , but got back together in July 2010. Keown was also in the process of moving back into Petty’s
house located on 7168 East Plymouth Road, Lexington, Indiana.
On August 7, 2010, Petty, Keown , and B.P drove to Clarksville, Indiana for a day of shopping. Petty bought a video game at a game store, two pints of Jim Beam at a liquor3

store, and a ring for Keown at a pawn shop. They drove back to Lexington arriving around
4.30 p . m . , dropped off B.P at Petty’s fathers ’ house , and d rove to Scottsburg, Indiana to attend the HopStock Music Festival (concert)

. Petty and Keown were together at the beginning of the concert but later separated

. At some point, Petty wanted to go home . H e walked back to his Camo 4

- Wheeler (4

- Wheeler) only to find Keown standing next to it , talking to somebody on her cell phone. Keown quickly hu ng up , and when Petty asked who she was talking to, Keown replied , “ none of your fucking business.” (Transcript p. 1488). This made Petty angry and they started to argue

. T hey were both intoxicated from the alcohol they had consum ed at the concert. The pair set off i n the 4

- W heeler but stopped at the intersection of Plymouth Road and Highway 3, where they got out and continued arguing for about two to three minu tes before climb ing back into the 4

- Wheeler and driving the rest of the way home . Once they arrived at Petty’s residence , Petty snatched Keown’s cell phone . U sing her call history, Petty called the last number Keown had dialed . It turned out that Keown had called a wrong number, and had spoken to a man by the name of Joe Barger (Barger). Barger told Petty that Keown had called him three times asking for “Mitch.” (Tr. p. 1456). Petty called Barger approximately ten times but Barger refused to talk to him or disclose his identity. I n on e of the se ten phone cal ls , Petty threatened Barger and told him that he would go over to his house to “whip” and “kill” him. (Tr. p. 1462). In the meantime, K e o wn had gone to the master bedroom and had passed out on the bed , with her feet hang ing over the foot of the bed. Since Petty did not get any information from Barger, he went into the master bedroom to ask Keown the same question

. Keown4

was unconscious and could therefore not a nswer him back

. At this point, Petty was “mad
at her , ” he got on top of Keown , put his hands on her throat and choked her

. (Tr. p. 1575). When Petty saw that Keown was not responding, Petty left the house and drove back to Scottsbur g , Indiana, stopping at Wal

- M art and Burger King. Approximately one hour later, Petty drove back to his house and found Keown still unconscious and she had turn ed blue. Petty tried to resuscitate Keown but she did not wake up. According to Petty , he knew Keown had died because she ha d urinated on herself. Petty decided that he did not want to go to jail , so he tried “ to [] make it all disappear.” (Tr. p. 1527)

. Petty placed Keown’s body and her boots into the back of his 4

- Wheeler , and drove ou t into the countryside stopping near Saluda, Indiana

. He then placed tw o phone calls from Keown’s cell phone in an attempt to divert suspicion from himself

. After that, Petty removed Keown’s cell phone battery , and threw it into the field

. Petty decided not to dump Keown’s body there , so he drove further down , stopping at Bethlehem Road in New Washington, Indiana. The road was on hill and was overlooking a heavily wooded area

. Petty picked
up Keown ’s body, stepped over the guardrail , and began carry ing her body down the hill and into the woods

. The h ill was quite steep and Petty quickly fell , dropping Keown ’s body. Petty left Keown ’s body where it ca me to rest. He then d rove for a while only to realize that Keown ’s boots were still on the floorboard of his 4

- Wheeler ; he stopped and pitched the boots over the guardrail

. At some point, he also realized that he still had
Ke o wn’s ring in his pocket, so he also pitched it somewhere along that route. The next morning, he returned to the site where he had dumped Keown ’s body to retrieve her clothes, because Petty feared, if found, it might assist the police in identifying5

him as Keown’s killer . He then drove back home , and burn ed Keown ’s clothes alongside his bed clothes in his backyard

. On the same day , Petty called Keown ’s mother and grandmother and asked whether they had seen or heard from Keown . Petty told them that he and Keown had argued at the concert the night before, and the last time he had seen her was when she wa l ked away at the intersection of Plymouth Road and Highway 3. Petty would continue t o tell the same story to the police for about three weeks. On August 26, 2010 , while Petty was in custody for an un related case in Clark County Jail , Petty asked to speak to the sheriff but he was not available. Petty spoke to Deputy Sherriff , Racheal Lee (Deputy Lee) , and he confessed to killing Keown and he offered to aid the officers in Scott County wit h Keown’s investigation

. Thereafter, Deputy Lee called Scott County Sherriff Department , and arranged to meet officers near the site where Petty had dum ped Keown ’s body. Keown ’s skeletal body was found the next day. On September 29, 2010, the State filed an Information charging Petty with Count I, murder, I .C. § 35

- 42

- 1

- 1; Count II, removal of body from scene, a Class D felony, I.C. §
36

- 2

- 14

- 17; and Count III, obstruction of justice, a Class D felony, I.C. § 35

- 44

- 3

- 4. That same day, t he State amended the Information adding a fourth charge, C ount IV , habitual offender, I.C. § 35

- 50

- 2

- 8

. Petty’s jury trial was conducted on January 29, 2013 through F ebruary 13, 2013. Toward the end of the trial, Petty tendered jury instructions on involuntary manslaughter. The trial court denied his request and only instructed the j ury on voluntary manslaughter as the lesser

- included offense of murder

. At the close of the hearing, the jury returned a guilty verdict of voluntary manslaughter , removal of body from scene , and obstruction of6

justice. Following the return of a guilty verdict on all Counts, Petty admitted to the habitual offender charge.
On April 17, 2013, the trial court held Petty’s sentencing hearing . In the end, the
tr ial court sentenced Petty to consecutive sentences of: twenty years on v oluntary manslaughter , enhanced by thirty years due to his habitual offender status ; three years for removal of body from scene ; and th ree years for obstruction of justice

. Thus, Petty’s aggregate sentence was fifty

- six years. Petty now appeal s . Additional facts will be provided as necessary.

DISCUSSION AND DECISION
I . Admission of Photographs

“ Because the admission and exclusion of evidence falls within the sound discr etion of the trial court, this c ourt reviews the admission of photographic evidence only for abuse of discretion. ” Schiro v. State , 888 N.E.2d 828, 841 (Ind. Ct. App. 2008) (quoti ng Corbett
v. State , 764 N.E.2d 622, 626 (Ind. 2002)), trans. denied

. Relevant evidence, including photographs, may be excluded only if its probative value is substantially outweighed by the danger of unfair prejudice. Ind. Evid ence Rule 403. Even gory a nd revolting photographs may be admissible as long as they are relevant to some material issue or show scenes that a witness could describe orally. Schiro , 888 N.E.2d at 841. Photographs that depict a victim ’ s injuries are generally relevant and admissible. Custis v. State , 793 N.E.2d 1220, 1224 (Ind. Ct. App. 2003), trans. denied

. Petty argues that the trial court e rred in admitting E xhib it “ 19 [ A

- C ] , and 20A

- L and others

. ” (Appellant’s Br. p. 3). He argues that the a dmission of the se exhibits w as not7

relevant to the issue s at trial , because there was no dispute about the identity of Keown or that she had been killed . Petty therefore contends that the admission of the photographs

was substantially prejudicial and constituted a fundamental error. In this case, Petty recognizes that he did not object to the admission of these photographs at trial. “Failure to object to the admission of evidence at trial normally results in wavier and precludes appellate review unless its admission constitutes fundamental error.” We will find fundamental error only when there has been a “ ‘blatant violation of basic principles ’ that denies a defendant ‘fundamental due process.’ ” Goodwin v. State , 783 N .E.2d 6 86, 687 (Ind. 2003) (quoting Wilson v. State , 514 N.E.2d 282, 284 (Ind. 1987)). The “error must be so prejudicial to the rights of the defendant as to make a fair trial impossible.” Wiley v. State , 712 N.E.2d 434, 444

– 45 (Ind. 1999). Looking at the record, we find that the trial court ’s admission of the said ex hibits did not constitute a fundamental error

. Exhibit 19A

- C, and 20A, were photographs of Keown’s skeletal remains

. Since the remains were in a body bag, t he pathologist explained that the p hotographs were taken when he and his team were assembl ing the skeleton , and positioning the bones in order

. Exhibit 20B, depicted two clavicles, one of which was longer than the other . The pathologist explained that fractures associated with the skeletal remains were useful in identifying a person , if they are at all listed in a person’s medical history . The pathologist explained that one of the clavicle s retrieved at the site wa s thicker in the middle because it healed from a fracture. Later at trial, Keown ’s mother testified that Keown br oke her collarbone in “ 4

- wheeler accident ” about “a year or two ” ago. (Tr. p. 1445)8

Exhibit 20C and D , displayed photograph of Keown’s upper and lower jaw with several teeth missing

. The pathologist further explained that the dental records of a person were also useful to identify a person. Later at trial, the forensic dentist, testified that t hese two exhibits were used to positively identify Keown

. He concluded that when he compared the post

- mortem x - ray dental records , and the ante

- mortem x - ray dental records , there was a match. Keown had previously extracted some teeth , she had fillings on some of her teeth, and she had a lso had a root canal conducted on one of her teeth. See , C a trabone v State , 490 N.E. 2d 272, 273 (1986) (where identification of the skeletal remains was made through dental records). Exhibit 20E

- L , depict ing Keown’s fractured ribs and skull were also introduced

. The pathologist explained that the objective was to look for eviden ce of trauma

. He stated that the fractures identified on the ribs had occured prior to her death , and were not associated with her death

. He also explained that there was no trauma on her skull. Even though the admission of Exhibit 20 E

- L had no probative value of establishing Keown’s cause of death, we find the admission of the exhibits was a harmless error. We note that

“ [e] rrors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the subs tantial rights of a party.” Fleener v. State , 656 N.E.2d 1140, 1141 (Ind. 1995) (citations omitted). Overall , Petty has not demonstrate d how the admission of the photographs affected his substantial rights. I t is undisputed that Petty killed Keown , threw her body into the woods , and waited t hree weeks before telling anyone . By the time the police recovered Keown’s body, it had decomposed and they could only retrieve her skeleton

. Moreover ,9

we find that the photographs at issue here were admitted i n conjunction with expert testimon ies to explain Keown’s identity and possibly identify her cause of death. W e are not persuaded that the photographs at issue were prejudicial as to influence the jury improperly. We therefore conclude the court did not abuse its discretion in admitting the photographs

. II . Jury Instructions Petty argues that the trial court abused its discretion when it denied his proposed jury instruction offering involuntary manslaughter as a lesser included offense to the murder charge. He contends that his request should have been granted because involuntary manslaughter is a factually included lesser offense of murder and there was a serious evidentiary dispute as to whether Petty intended to kill or mere ly batter Keown

. The manner of instructing a jury lies largely within the sound discretion of the trial court, and we review only for an abuse of that discretion. Emerson v. State, 724 N.E.2d 605, 608 (Ind. 2000); Stringer v. State , 853 N.E.2d 543, 548 (Ind. Ct. App. 2006). An abuse of the trial court’s discretion occurs “when ‘the instructions as a whole mislead the jury as to the law in the case.’ ” Ham v. State , 826 N.E.2d 640, 641 (Ind. 2005) (quoting Carter v. State, 766 N.E. 2d 377, 382 (Ind. 2002)). A defendant is only entitled to a reversal if he affirmatively demonstrates that the instructional error prejudiced his substantial rights. Hero v. State, 765 N.E.2d 599, 602 (Ind. Ct. App. 2002), trans. denied. A trial court must engage in a three

- step analysis when determining whether to instruct a jury on a lesser included offense of the crime charged . Wright v. State , 658 N.E.2d 563, 566

- 67 (Ind. 1995). First, the trial court must consider whether the alleged10

lesser inclu ded offense is an inherently included offense to the principal charge. Id . If it is not, the trial court must then decide whether the alleged lesser included offense is a factually included offense to the principal charge. Id . at 567. Finally, if the alleged lesser included offense is either an inherently or factually included offense to the principal charge, then the trial court must determine if there is a serious evidentiary dispute regarding the element that distinguishes the lesser offense from th e principal charge. Id . If such a dispute is present and a jury could conclude that the lesser offense was committed but not the principal charge, then it is a reversible error for the trial court to refuse to give the jury instructions on the lesser inc luded offense. Id

. Murder is defined as “knowingly or intentionally” killing anot her human being. Ind. Code § 35

- 42

- 1

- 1(1). Involuntary manslaughter is the killing of a human being while “committing or attempting to commit . . . battery.” I.C. § 35

- 42

- 1

- 4(c)(3). The trial court’s refusal to instruct the jury on the lesser included offense would have been an abuse of discretion only if there was a serious evidentiary dispute as to whether Petty’s intent was to kill or merely batter Keown

. See Ketcham v. State, 780 N.E.2d 1171, 1178 (Ind. Ct. App. 2003), trans. denied

. It is undisputed that i nvoluntary manslaughter is not an inherently included lesser offense to murder, but it may be a factually included lesser offense if the charging instrument alleges that the killing was accomplished by a battery. Evans v. State , 727 N.E.2d 1072, 1081 (Ind . 2000). A factually included lesser offense exists when the charging instrument alleges that the means used to commit the charged crime include all of the elements of the alleged lesser included offense. Wright , 658 N.E.2d at 567.11

Here, the charging I nformation stated that Petty “knowingly or intentionally” killed
Keown . (Appellant’s App. p. 35). Because the information did not assert a battery , involuntary manslaughter in this case was not a factually included lesser offense of murder. The trial co urt therefore did not err in refusing to give the instruction involuntary manslaughter

. See Wright , 658 N.E.2d at 567.
III. Sufficiency of the Evidence Petty contends that the State failed to present sufficient evidence to sustain his conviction for voluntary manslaughter. Specifically, he contends the State failed to prove beyond a reasonable doubt that he intended to kill Keown when he strangled her. Our standard of review with regard to sufficiency claims is well set tled. In reviewing a sufficiency of the evidence claim, this court does not reweigh the evidence or judge the credibility of the witnesses. Agilera v. State , 862 N.E.2d 298, 306 (Ind. Ct. App. 2007). We will consider only the evidence most favorable to t he verdict and the reasonable inferences drawn therefrom and will affirm if the evidence and those inferences constitute substantial evidence of probative value to support the judgment. Id . A conviction may be based upon circumstantial evidence alone. Id . Reversal is appropriate only when reasonable persons would not be able to form inferences as to each material element of the offense. Abney v. State , 822 N.E.2d 260, 264 (Ind. Ct. App. 2005). A conviction of voluntary manslaughter requires proof that P etty intentionally or knowingly killed Keown while acting under sudden heat. I

. C

. § 35

- 42

- 1

- 3. “Sudden heat” is characterized as anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary person, preventing deliberation and premed itation, excluding malice, and12

rendering a person incapable of cool reflection. Dearman v. State, 743 N.E.2d 757, 760 (Ind. 2001). Here, the evidence in favor of the judgment indicates that Petty knowingly or intentionally killed Keown while acting under sudden heat

. Petty testified that he and
Keown fought about the identity of the person that Keown had talked to on th e night she died . Petty testified that after Keown refused to tell him who she was talking to, he became angry. When asked to rate his anger on a ten

- point scale, Petty testified that he was a nine. Petty said that he was so angry that night that he was planning to kill whoever Keown had been talking to on the phone. Also, the record shows that Petty called Barger, wh o refused to identify himself. In his anger, Petty went back to the bedroom, got on top of a passed
out Keown , and choked her

. See Erlewein v. State , 775 N.E.2d 712, 715 (Ind. Ct. App. 2002) (where this court stated that choking someone for a minimum of forty

- five seconds clearly evinces an intent to kill or, at the very least, an awareness of a high probability that death would result). Petty also admitted that he had a harder time controlling his thoughts and actions when angry. Moreover, Barger testified that when Petty called him on the night
Keown was killed , Petty was really angry. Based on the foregoing, we find that the evidence presented by the State permitted the jury to come to a reasonable conclusion that in a fit of a nger brought first by Keown ’s defiance and then Barger’s, Petty went to his bedroom and strangled Keown to death

. IV

. Inappropriate Sentence13

Lastly, Petty contends that the sentence imposed is inappropriate based on the nature of the offense and his character. 1 Indiana Appellate Rule 7(B) provides that we “may revise a sentence authorized by statute if, after due consideration of the trial co urt’ s decision, [we find] that the sentence is inappropriate in light of the nature of the offense and the ch aracter of the offender.” The burden is on the defendant to persuade the appellate court that his or her sentence is inappropriate. Childress v. State , 848 N.E.2d 1073, 1080 (Ind. 2006). “Ultimately the length of the aggregate sentence and how it is to b e served are the issues that matter.” Cardwell v. State , 895 N.E.2d 1219, 1224 (Ind. 2008). Whether we regard a sentence as appropriate at the end of the day turns on our sense of the culpability of the defendant, the severity of the crime, the damage do ne to others, and a myriad of other considerations that come to light in a given case. Id

. The advisory sentence is the starting point the legislature has selected as an appropriate sentence for the crime committed. Abbott v. State , 961 N.E.2d 1016, 1019 (Ind. 2012). A sentence for Class B felony ranges from a fixed term of between six and twenty years, with the advisory sentence being ten years. See I.C. § 35

- 50

- 2

- 5. Whereas a sentence for a Class D felony ranges from six months to three years, with an advisory sentence of one and a half years. See I.C. § 35

- 50

- 2

- 7(a). Here, the trial court sentenced Petty to an aggregate consecutive sentence of twenty years for voluntary man slaughter, enhanced by thirty years due to his habitual offender status; three years for removal of body from scene; and three years for obstruction of justice

.

1 Petty presents his sentencing argument as two issues. However issue IV is comprised o f a single paragraph reciting the standard of review. In that paragraph, Petty alleges that the trial court abused its discretion by “maxing out” his sent ence. (Appella nt’s Br. p. 7). W e shall address his contention under this discussion.14

In reviewing the nature of the crim e, we note that Petty choked Keown and she died as a result. After he realized that Keown had died, Petty decided tha t he “didn’t want to go to jail” a nd decided he would “try to just make it all disappear.” (Tr. p. 1527). In the dead of the night, Petty loaded Keown ’s body on his 4

- wheeler , drove to the country side, and d umped her body in the woods , hoping it would never be found. As, for Petty’s character, he points out that he is a “moderate” offender. (Appellant’s Br. p. 8). We disagree. Petty’s extensive criminal history includes armed robbery , burglary , theft, battery, and domestic battery on Keown . In addition, Petty committed the instant offenses while on probation. Although Petty was enraged by Keown not telling him who she was talking to on her cell phone, that was no reason for him to take her life. Also, Petty’s criminal history does not suggest that he has led a law abiding life
and this fact negatively affects his character

. Therefore, we find Petty’s sentence is not inappropriate in light of the nature of the crimes and his ch aracter. CONCLUSION Based on the foregoing, we find that: (1) the trial court did not abuse its discretion in admitting the photographs; (2) the trial court properly declined to instruct the jury on involuntary manslaughter; (3) there was sufficient evide nce to support Petty’s conviction for voluntary manslaughter ; and (4) Petty’s sentence is appropriate.
We affirm. ROBB, J. and BRADFORD, J. concur