ATTORNEY FOR APPELLANT			ATTORNEYS FOR APPELLEE

David M. Henn					Jeffrey A. Modisett

Cohen & Morelock					Attorney General of Indiana

Indianapolis, Indiana				

							Carol A. Nemeth

							Deputy Attorney General 

							Indianapolis, Indiana

In The

INDIANA SUPREME COURT

											                 TELLY GANT,					)	

		Defendant-Appellant,		)			

							)

		v.					)	49S00-9703-CR-185

							)					 STATE OF INDIANA,				)

		Plaintiff-Appellee.			)

                          ________________________________________________  

APPEAL FROM THE MARION SUPERIOR COURT

The Honorable Patricia J. Gifford, Judge

Cause No. 49G04-9410-CF-142400

                        _________________________________________________

On Direct Appeal

April

AprilApril 30, 1998

DICKSON, J.

	In this appeal from his convictions for the murder1 of Anthony Alexander and the attempted murder2 of Gordon Murrell, the defendant, Telly Gant, presents four claims of error:  (1) sufficiency of the evidence; (2) denial of tendered instructions on voluntary

intoxication and voluntary manslaughter; (3) cumulative autopsy evidence; and (4)

manifestly unreasonable sentence.  We affirm.

	A brief summary of the evidence is necessary for our discussion of the issues.  On

the evening of June 16, 1994, Gordon Murrell and Anthony Alexander joined defendant

and three other men at an Indianapolis apartment building parking lot, where they

discussed homosexuality.  After the defendant engaged in homosexual activity with

Murrell and one of the other men in the basement of the apartment building, the six men

went to Murrell’s apartment where they talked, consumed alcohol, and watched

homosexual pornographic videos.  Some of the men again engaged in homosexual

activity.  At one point, the defendant went into the bathroom with Alexander for about ten

minutes.  The defendant came out of the bathroom with an “angry expression” on his

face.  Record at 446.  After all of the men except Alexander and Murrell left the apartment

after about two hours, Murrell went into the bathroom.  Immediately outside  the apartment door, the defendant stated to

the two men who left with him that he wanted to “jump” Alexander.  Record at 394.  The

defendant then knocked on the apartment door and, when Alexander opened the door, the

defendant and one companion entered the apartment.  The defendant attacked Alexander. 

Murrell emerged from the bathroom, and a melee ensued among the four men.  At some point Alexander yelled that he had been stabbed.  Murrell testified that he saw “the

motions of arms” and that he saw the defendant stabbing Alexander.  Record at 254-55.  Murrell ran to assist Alexander, forcing himself between Alexander and the defendant.  After Alexander yelled, the defendant’s two companions left the apartment building and

got into the car they had driven to the apartment complex.  The were followed shortly

thereafter by the defendant, who was carrying a bloody knife and wearing bloody clothes. 

The defendant’s two companions each testified that neither of them had carried a weapon

that night.  When the defendant joined them in the car, he told them to drive away and

warned them not to mention what happened that night.  Murrell sustained numerous stab

wounds, but survived.  He testified that he did not realize until later that he had been

stabbed.   Alexander died of his stab wounds.  

	Sufficiency of Evidence

	The defendant contends that there was insufficient evidence to prove that he was

the person who stabbed the two victims.  He argues that his possession of a knife as he

exited the apartment is insufficient to prove that he used it to stab the victims.   An

appellate claim of insufficient evidence will be denied if, considering the evidence and

inferences supporting the judgment, we conclude that a reasonable jury could find the

defendant guilty beyond a reasonable doubt.  Case v. State, 458 N.E.2d 223, 226 (Ind. 1984); Loyd v. State, 272 Ind. 404, 407, 398 N.E.2d 1260, 1264 (1980), cert. denied, 449 U.S. 881, 101 S.Ct. 231, 66 L.Ed.2d 105.

	Not only was the defendant’s possession of the bloody knife probative evidence

from which the jury could have reasonably inferred that he was the assailant, Murrell

testified that he saw the defendant stabbing Alexander.  The evidence was sufficient to

find that the defendant used a knife to stab both Alexander and Murrell.  

	Jury Instructions

	The defendant contends that the trial court erroneously refused his tendered

instructions as to the defense of voluntary intoxication and as to the lesser-included

offense of voluntary manslaughter. 

	The manner of instructing the jury lies within the sound discretion of the trial

court.  Wrinkles v. State, 690 N.E.2d 1156, 1161 (Ind. 1997)1998 WL 789, at *5 (Ind. Dec. 31, 1997).  In reviewing a claim that the trial court erred in refusing to give an instruction, an appellate tribunal considers

whether: (1) the tendered instruction correctly states the law; (2) there is evidence to

support giving the instruction; and (3) the substance of the tendered instruction is covered

by other instructions already given.  Griffin v. State, 644 N.E.2d 561, 562 (Ind. 1994). 

	Our resolution of this claim is determined by whether the evidence supports the

tendered instruction.  An intoxication instruction should be given only where “the

evidence relevant to the defense, if believed, was such that it could have created a

reasonable doubt in the jury’s mind that the accused had acted with the requisite mental

state or specific intent.”  State v. Van Cleave, 674 N.E.2d 1293, 1303 (Ind. 1996), reh’g granted on other grounds, 681 N.E.2d 181 (Ind. 1997), cert. denied, ___ U.S. ___, 118 S.Ct. 1060, ___ L.Ed.2d ___ (1998) (quoting Morrison v. State, 462 N.E.2d 72, 74 (Ind. 1984)). “[A] defendant should not be relieved of responsibility when he was able to

devise a plan, operate equipment, instruct the behavior of others or carry out acts

requiring physical skill.”  Miller v. State, 541 N.E.2d 260, 263 (Ind. 1989).  

	The trial testimony indicated that the defendant had consumed alcohol during the

events immediately preceding the incident.  However, there was ample evidence of the

defendant’s ability to carry out acts requiring physical skill, to instruct others, and to

devise a plan.  His actions evidenced the physical ability to successfully attack and kill

one of the victims and the presence of mind immediately after the murder to tell his

companions to drive away and not to say anything about the incident.  The trial court did

not err in refusing the tendered intoxication instruction.  

	The defendant also contends that the trial court erred in refusing his tendered

instruction on the lesser-included offense of voluntary manslaughter.  Voluntary

manslaughter is a necessarily-included offense of murder and, therefore, we must

determine whether there is sufficient evidence to warrant giving the instruction.  Griffin, 644 N.E.2d at 562.  Sudden heat exists where there is sufficient provocation to engender

passion and is shown by “anger, rage, sudden resentment, or terror that is sufficient to

obscure the reason of an ordinary person, prevent deliberation and premeditation, and

render the defendant incapable of cool reflection.”  Id.   The instruction should be given if there is “any appreciable evidence of sudden heat.”  Id. (quoting Roark v. State, 573 N.E.2d 881, 882 (Ind. 1991)).  

	The defendant  contends that he is heterosexual and that his participation in

homosexual activity was unusual conduct for him.  He contends that the “sudden heat”

prerequisite for such instruction was established by evidence that he acted out of anger

toward the “source of his humiliation and anger” which resulted from engaging in

consensual homosexual activity.  Brief of Appellant at 14.  We decline to permit the

defendant’s own consensual actions to constitute sufficient provocation.  Furthermore, we

find the evidence of suddenness to be lacking.  The defendant had engaged in homosexual

activity over the course of several hours. While the defendant, upon leaving the

apartment, may have regretted his conduct, there is an absence of appreciable evidence of

sudden heat.  We decline to find error in the trial court’s refusal of the defendant’s

tendered instruction on the lesser-included offense of voluntary manslaughter.  

	Cumulative Evidence

	The defendant alleges trial court error in the admission of graphic autopsy

photographs depicting the wounds inflicted upon Alexander’s body.  He argues that these

photographs were cumulative of others admitted without objection and had no additional

probative value but served only to inflame and incite the passions of the jury.  

	Relevant evidence may be excluded if its probative value is substantially

outweighed by the danger of unfair prejudice or needless presentation of cumulative

evidence.  Ind.Evidence Rule 403.  A claim of error in the admission or exclusion of

evidence will not prevail on appeal “unless a substantial right of the party is affected.”  Ind.Evidence Rule 103(a).  The standard of review for such claims is for abuse of

discretion.  Yamobi v. State, 672 N.E.2d 1344, 1346 (Ind. 1996).  

	Dr. John E. Pless, a forensic pathologist, testified for the State regarding the

Anthony Alexander autopsy report and described nine stab wounds.  He identified

autopsy photographs in which each of the stab wounds were identified by number.  The

defendant did not object to State’s Exhibits 17, 18, 19, and 22, which show, respectively,

the victim’s forehead and eyes (wounds numbered 1 and 2), scalp (wound 9), ear

(wounds 6 and 7), and left torso (wounds 3, 4, 5, and 8).  The trial court admitted over

the defendant’s objection State’s Exhibits 9, 20, 21, and 23, showing the victim’s full

face (showing wounds 1, 2, and 6), a close up of the ear (wound 6), a close up of wound

8, and the torso (wounds 3, 4, 5, and 8).  

	We are not persuaded that the danger of unfair prejudice substantially outweighs

the probative value of the questioned photographs.  Because of the similarity of the

photographs, the contested exhibits presented only a marginal increase in prejudicial

effect.  We are not convinced that the resulting prejudice was unfair.  The admission of

the challenged exhibits did not affect a substantial right of the defendant, nor does it

constitute an abuse of discretion by the trial court.  We reject the defendant’s claim on

this issue.

	Sentence

	The defendant contends that his 110 year sentence3 is manifestly unreasonable4 because of his troubled youth, his age, and his ability to be rehabilitated.  In the exercise

of our authority to review and review sentences,5 this Court will revise a sentence only where it is “manifestly unreasonable in light of the nature of the offense and the character

of the offender.”  Ind.Appellate Rule 17(B).

	The trial court found that the defendant had a violent juvenile and adult criminal

history, including two juvenile offenses that would have been felonies if committed as an

adult, and five adult convictions, two of which were felonies.  We find that the sentence

was not manifestly unreasonable.  

	The judgment of the trial court is affirmed.

	SHEPARD, C.J., and SELBY and BOEHM, JJ., concur.  SULLIVAN, J., concurs

except as to sentence.