Attorneys for Appellant

Eugene C. Hollander

Special Assistant to the Office of the State Public De

fender

Indianapolis, IN		

Attorneys for Appellee

Jeffrey A. Modisett

Attorney General of Indiana

Carol A. Nemeth

Deputy Attorney General

Indianapolis, IN

	IN THE

	INDIANA SUPREME COURT

MICHAEL W. CHARLTON,

	Appellant (Defendant below),

	v.

STATE OF INDIANA,

	Appellee (Plaintiff below).

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)	Supreme Court No.

)	84S00-9608-CR-00570

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	APPEAL FROM THE VIGO SUPERIOR COURT

	The Honorable Dexter L. Bolin, Judge

	Cause No. 84D03-9508-CF-318

	ON DIRECT APPEAL

	December 7, 1998

SULLIVAN,  Justice.

	On August 28, 1995, defendant Michael Charlton was charged with killing his girlfriend, Deborah Carpenter.  Defendant appeals his conviction of Murder1 and sentence of sixty years.  We affirm both.

	This Court has jurisdiction over this direct appeal because the longest single sentence

exceeds fifty years.  Ind. Const. art. 7, § 4; Ind.Appellate Rule 4(A)(7).

	Background

	Defendant and the victim lived together for approximately two and one-half years.  On August 21, 1995, the victim called defendant at work and told him that because they

were having problems she had placed all of his belongings on the front porch for him to pick

up later.  She also advised him that she was planning to secure a protective order against him

that day.  Defendant did pick up his possessions and later that evening, he and the victim

met at a neutral location to talk about their separation.

	On August 22, 1995, the victim had her family over for dinner and spoke to defen

dant over the phone on at least one occasion.  The victim’s son left around 9 pm and she

took her daughter and grandson home around 11:30 pm.

	During trial, the defendant testified that the victim called him at his parents’ home

around 4 am on August 23, 1995, and invited him to come over.  Defendant allegedly

walked to the victim’s house, talked with her, and the two subsequently had sexual inter

course on the couch.  Then, according to defendant, after the two got dressed, the victim

came towards him as if to give him a hug but instead reached behind and grabbed his gun. 

Defendant testified that during the struggle to get the loaded gun away from the victim, the

gun accidentally discharged and hit the victim in the head.  Defendant alleges that he left the

victim’s home and went straight to his parents’ home to discuss the morning’s events. 

Several hours later, the defendant turned himself in to the police.

	Additional facts will be provided as necessary. 

	Discussion

	Defendant raises four issues on appeal:  (1) whether the trial court erred in not

instructing the jury on a lesser included offense; (2) whether the trial court erred by allowing

testimony regarding the victim’s application for a protective order; (3) whether the prosecu

tor’s comments during closing argument constituted prosecutorial misconduct; and (4)

whether the defendant’s sixty-year sentence is manifestly unreasonable.

	I

	Defendant contends that the trial court committed reversible error by denying his

proposed jury instruction on the lesser included offense of reckless homicide.2  We set forth in Wright v. State, 658 N.E.2d 563 (Ind. 1995), the proper analysis to determine when a trial court should, upon request, instruct the jury on a lesser included offense of the crime

charged.  Three steps are involved:  (1) a determination of whether the lesser included

offense is inherently included in the crime charged; if not, (2) a determination of whether

the lesser included offense is factually included in the crime charged; and, if either, (3) a

determination of whether a serious evidentiary dispute existed whereby the jury could

conclude the lesser offense was committed but not the greater.  Id. at 566-67.  If the third step is reached and answered in the affirmative, the requested instruction should be given.

	When the trial court has made a finding on the existence or lack of a “serious eviden

tiary dispute,” our standard of review is abuse of discretion.  See Champlain v. State, 681 N.E.2d 696, 700 (Ind. 1997).  However, if the trial court makes no ruling with respect to

whether a “serious evidentiary dispute” exists, “Wright implicitly requires the reviewing court to make this determination de novo based on its own review of the evidence.”  Cham plain, 681 N.E.2d at 700.  In this case, the trial court simply refused the defendant’s ten dered Reckless Homicide instruction and made no finding regarding whether a serious

evidentiary dispute existed.3  Additionally, defendant’s tendered instruction contained no explanation as to why a serious evidentiary dispute existed, nor does defendant direct us to

the record where he explained to the trial court the existence of such a dispute.  “[W]hen the

court rejects tendered instructions on lesser included offenses on their merits, but the record

provides neither a finding that there is no serious evidentiary dispute nor a specific claim

from the defendant as to the nature of that dispute, the standard of review is an abuse of

discretion.”  Thomas Brown v. State, No. 82S00-9609-CR-603, slip op. at 16 (Ind. Dec. 3, 1998).  We review this case accordingly.

	The defendant was charged with Murder.  Indiana’s Murder statute provides in relevant part that “[a] person who . . . knowingly or intentionally kills another human being

. . . commits Murder, a felony.”  Ind. Code § 35-42-1-1 (1993).  Indiana’s Reckless Homi

cide statute provides that “[a] person who recklessly kills another human being commits

reckless homicide, a Class C felony.”  Ind. Code § 35-42-1-1 (1993).  A comparison of these

two statutes indicates that Reckless Homicide is an inherently lesser included offense of

Murder; the only distinguishing factor between Reckless Homicide and Murder is the lesser

culpability.  Wright, 658 N.E.2d at 567.  See Horan v. State, 682 N.E.2d 502, 507 (Ind. 1997).          

	The final step of the Wright analysis requires the court to determine whether a serious evidentiary dispute existed warranting a Reckless Homicide instruction.  Ind. Code

§ 35-41-2-2(c) (1993) provides that “[a] person engages in conduct ‘recklessly’ if he

engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might

result and the disregard involves a substantial deviation from acceptable standards of con

duct.”  In support of his position, defendant makes the following argument:

The Defendant argues that the evidence presented at trial raised a serious evidentiary dispute regarding the element of intent, and the trial Court com

mitted reversible error by not instructing the jury regarding Reckless Homi

cide.  The Defendant committed the shooting.  He reported the shooting.  He

admitted to the shooting.  The Defendant testified during the trial regarding

the fact that the gun accidentally fired while the parties were struggling.

Br. of Def.-Appellant at 15-16.  While these facts do call into question defendant’s intent, they present absolutely no evidence of reckless conduct — they present evidence of an accident or, at most, negligence.  Defendant has not presented or referred us to any evidence

showing that his conduct was reckless, much less showing that there was a serious eviden

tiary dispute over whether his conduct was reckless. 

	On the other hand, the evidence presented by the State all supported its contention that defendant “knowingly” or “intentionally” killed the victim:

		1.  On the morning of August 22, 1995, the defendant told a co-worker

that he was going to kill the victim and himself. 

		2.  The defendant testified that the victim telephoned him at his par

ents’ house around 4 am on August 23, 1995, and invited him to come over. 

The defendant claimed that he walked to the victim’s house.  However, the

victim’s son testified that while he was at work, the defendant drove by

around 4:30 am to inquire whether his sister was still at the victim’s house.  

Additionally, one of the victim’s neighbors testified that on August 23, 1995,

he noticed defendant’s truck parked on the street at 4:30 am and that the truck

was still there when he left for work around 5:45 am.

		3.  The defendant never called for emergency help and did not turn

himself in to authorities until several hours after the shooting.  

		4.  The coroner testified that the victim died of a contact wound which

means that the gun was held against the skin when it was fired and not from

a distance.

		5.  A few hours after the police had discovered the victim’s body and

left the house, the daughter noticed that the telephone lines had been cut and

that the back door had been damaged and that there were paint fragments and

wood shavings on the floor. The police had not made these observations

earlier during their investigation of the house.

	Given this evidence, there was no serious evidentiary dispute that defendant reck

lessly killed the victim.  The trial court did not abuse its discretion when it refused the

Reckless Homicide instruction.

	II

	Defendant contends that the trial court erred in admitting evidence that the victim

had attempted to obtain a protective order against the defendant.  We disagree.   

	Indiana Evidence Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or

acts is not admissible to prove the character of a person in order to show action in confor mity therewith.  It may, however, be admissible for other purposes, such as proof of motive,

intent, preparation, plan, knowledge, identity, or absence of mistake or accident . . . ”  When

a defendant objects to the admission of evidence on the grounds that it would violate Rule

404(b), the following test is applied:  (1) the court must determine that the evidence of other

crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity

to commit the charged act; and (2) the court must balance the probative value of the evi

dence against its prejudicial effect pursuant to Rule 403.4  Thompson v. State, 690 N.E.2d 224, 233 (Ind. 1997).  See Hicks v. State, 690 N.E.2d 215, 221 (Ind. 1997); Heavrin v. State, 675 N.E.2d 1075, 1083 (Ind. 1996), reh’g denied; Taylor v. State, 659 N.E.2d 535, 543 (Ind. 1995); Hardin v. State, 611 N.E.2d 123, 128-29 (Ind. 1993).  “The well established rationale behind Evidence Rule 404(b) is that the jury is precluded from making the ‘forbidden

inference’ that the defendant had a criminal propensity and therefore engaged in the charged

conduct.”  Thompson, 690 N.E.2d at 233 (citing Hardin, 611 N.E.2d at 129). 

	Two witnesses — the victim’s daughter and Lee Ann Riesenbeck, a resource advo

cate for the local counsel on domestic abuse — testified that two days before the murder, the

victim requested that a protective order be issued against the defendant.  Defendant objected to the testimony of both of these witnesses.5  The victim’s daughter testified that the “[victim] wanted to get a Protective Order against [the defendant] — because he had been

harassing her— and threatening to — threaten her.”  Riesenbeck testified that when the

victim came to her office to file an application for a protective order, she was crying,

shaking, scared and was so upset that she could not fill the forms out.6

	We agree with the State that testimony regarding the protective order was admitted

to show defendant’s motive for committing the murder and not to create an inference that

defendant acted in conformity with his prior bad acts.  See Bacher v. State, 686 N.E.2d 791, 799 (Ind. 1997) (motive is relevant to proof of a crime and evidence of jealousy and

overprotectiveness can be a motive for murder); Haggenjos v. State, 441 N.E.2d 430, 431 (Ind. 1982) (defendant’s jealous behavior after wife filed for divorce was admissible as

evidence of motive for killing).  Prior actions to show motive, intent, or other proper

purposes are admissible.  Hicks, 690 N.E.2d at 219; Bacher, 686 N.E.2d at 799.  There have been numerous cases in which we have held proper the admission of evidence showing the

relationship that existed between the defendant and the victim.  See, e.g., Hicks, 690 N.E.2d at 222 (citing Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996); Elliott v. State, 630 N.E.2d 202, 204 (Ind. 1994); Price v. State, 619 N.E.2d 582, 584 (Ind. 1993)).  See also Campbell v. State, 622 N.E.2d 495, 500 (Ind. 1993).  The evidence relating to the protective order was for the purpose of proving defendant’s motive.

	We next proceed to determine whether, under the second prong of the 404(b) test, the

probative value of the evidence is substantially outweighed by the danger of unfair preju

dice.  In undertaking such a review, we use an abuse of discretion standard.  Hicks, 690 N.E.2d at 223 (citing Mayberry v. State, 670 N.E.2d 1262, 1268 (Ind. 1996), reh’g denied).  See  Johnson v. State, 655 N.E.2d 502, 505 (Ind. 1995).  We do not find that any prejudicial impact from the evidence relating to the Protective Order substantially outweighed its

probative value.  We provide two reasons for our determination.  

	First, as we stated supra, the testimony was relevant to show the hostile relationship that existed between defendant and the victim in order to prove motive for the murder.  This

evidence was even more significant in light of the fact that the protective order was sought

just two days prior to the murder.  Second, this evidence was admitted only after the State

presented the testimony of two of defendant’s co-workers whose testimony was far more

damaging than the protective order evidence.  Pam Stuthers, testified that she overheard

defendant’s conversation with another co-worker.  Stuthers heard defendant say, “[t]hat if

he’d been there he’d have killed her.”  Stuthers also commented that the defendant was

talking about committing suicide. The other co-worker, William Gregory, testified that after defendant received a phone call at work from the victim informing him that his belongings

were outside on the front porch, the defendant “got mad and came back in the kitchen and

started throwing stuff around, cussing and swearing.” The co-worker also testified that while

working the next day (the morning prior to the murder), the defendant told him “[t]hat he

was going to kill her and kill hisself” [sic] and that “[h]e was going to take her down.”  In

light of this other damaging evidence, we find no error in the admission of protective order

evidence.7

	III

	Defendant complains that the prosecutor engaged in misconduct in closing argument

in several respects:  (i) that the prosecutor implied that he had superior knowledge to the

jury concerning the facts in the case; (ii) that the prosecutor suggested that the defendant

controlled, manipulated or dominated the victim even though such evidence was never

presented at trial; (iii) that the prosecutor insinuated that the State somehow controlled the

jury selection process; and (iv) that the prosecutor referred to defendant’s confession to the

police even though such statements were never disclosed to the jury.  Finally, defendant

briefly identifies some additional arguments made by the prosecutor which he characterizes as being “filled with hyperbole and innuendo.”  Defendant neither objected at trial nor

sought an admonishment.  Ordinarily, a failure to object would cause the issue to be waived. 

See Isaacs v. State, 673 N.E.2d 757, 763 (Ind. 1996).  Consequently, defendant argues that the errors were fundamental or, in the alternative, that counsel’s failure to object constituted

ineffective assistance of counsel.

	Fundamental error is a substantial blatant violation of basic principles rendering the

trial unfair to the defendant and, thereby, depriving the defendant of fundamental due

process.  Borders v. State, 688 N.E.2d 874, 882 (Ind. 1997). (citations omitted).  See Wrinkles v. State, 690 N.E.2d 1156, 1171 (Ind. 1997) (“claim of fundamental error is not viable absent a showing of grave peril and the possible effect on the jury’s decision”).  The

error must be so prejudicial to the rights of a defendant as to make a fair trial impossible.  Id. (citations omitted).  “For prosecutorial misconduct to be fundamental error, it must be demonstrated that the prosecutor’s conduct ‘subjected the defendant to grave peril and had

a probable persuasive effect on the jury’s decision.’”  Carter v. State, 686 N.E.2d 1254, 1262 (Ind. 1997) (quoting Isaacs, 673 N.E.2d at 763).  See Borders, 688 N.E.2d at 879.  The gravity of peril turns on the probable persuasive effect of the misconduct on the jury’s

decision, not on the degree of impropriety of the conduct.  Borders, 688 N.E.2d at 879 (citing Kent, v. State, 675 N.E.2d 332,at 335 (INdnd. 1996)) (citations omitted)).

	While we agree with defendant that some of  the prosecutor’s statements complained of may have pushed the bounds of zealous advocacy, we find nothing about the statements

to be so egregious as to rise to fundamental error.  Additionally, the failure to object could

well have been a strategic decision by counsel.  See Bannowsky v. State, 677 N.E.2d 1032, 1035 (Ind. 1997) (counsel’s failure to object to prosecutor’s improper voir dire questions

was “consistent with a reasonable choice of defense tactics and strategy” which was “the

desire to avoid focussing the juror’s attention upon the prosecutor’s questions”).  “Judicial

scrutiny of counsel’s performance is highly deferential; we eschew second-guessing the

propriety of trial counsel’s tactics.”  Canaan v. State, 683 N.E.2d 227, 231 (Ind. 1997).  See Potter v. State, 684 N.E.2d 1127, 1133 (Ind. 1997) (“A reviewing court must grant the trial attorney significant deference in choosing a strategy which, at the time and under the

circumstances, he or she deems best.”).  Strategic decisions do not amount to ineffective

assistance of counsel.  See Potter, 684 N.E.2d at 1133 (failure to object is not ineffective assistance of counsel “if counsel’s failure to object was the result of trial strategy”);  Smith v. State, 689 N.E.2d 1238, 1244 (Ind. 1997) (quoting Garrett v. State, 602 N.E.2d 139, 142 (Ind. 1992)) (“Tactical choices by trial counsel do not establish ineffective assistance of

counsel even though such choices may be subject to criticism or the choice ultimately

proves detrimental to the defendant.”).  We hold that the prosecutor’s comments during

closing argument did not constitute fundamental error and that trial counsel was not ineffec

tive for failing to object thereto.

			IV

	Defendant contends that his sixty year sentence is manifestly unreasonable.  Sentenc

ing lies withing the discretion of the trial court.  See Battles v. State, 688 N.E.2d 1230, 1235 (Ind. 1997) (citing Mayberry, 670 N.E.2d at 1270); Blanche v. State, 690 N.E.2d 709, 714 (Ind. 1997); Archer v. State, 689 N.E.2d 678, 683 (Ind. 1997), reh’g denied; Morgan v. State, 675 N.E.2d 1067, 1072 (Ind. 1996).  This Court will not revise a sentence unless the sentence is manifestly unreasonable in light of the nature of the offense and the character of

the offender.  Ind. Const. art. VII, § 4; Ind. Appellate Rule 17(B)(2).  See Blanche, 690 N.E.2d at 714; Page v. State, 689 N.E.2d 707, 712 (Ind. 1997); Birdsong v. State, 685 N.E.2d 42, 48 (Ind. 1997); Poulton v. State, 666 N.E.2d 390, 393 (Ind. 1996).  

	The trial court enhanced defendant’s sentence from the presumptive sentence of fifty-

five (55) years, Ind. Code § 35-50-2-3 (Supp. 1995), to sixty (60) years.  The trial court has

authority to enhance a presumptive sentence up 10 years due to aggravating circumstances

or reduce the presumptive sentence by as many as 10 years for mitigating circumstances. 

Ind. Code § 35-50-2-3 (Supp. 1995).  When enhancing a sentence, a trial court must:  (1)

identify significant aggravating and mitigating circumstances; (2) state the specific reasons

why each circumstance is aggravating or mitigating; and (3) evaluate and balance the

mitigating against the aggravating circumstances to determine if the mitigating offset the

aggravating circumstances.  Mitchem v. State, 685 N.E.2d 671, 678 (Ind. 1997) (citing Jones v. State, 675 N.E.2d 1084, 1086 (Ind. 1996)).  

	The trial court found three aggravating circumstances.8  The court also commented on proffered mitigating circumstances.  Although the trial court did not articulate specifi

cally that the aggravating circumstances outweighed the mitigating circumstances, it is clear

that the trial court did engage in a balancing process (see footnote 8).  See e.g., Mitchem, 685 N.E.2d at 679.  We find the sentencing statement to be satisfactory and the sentence

itself not manifestly unreasonable.  

	Conclusion

	We affirm the judgment of the trial court. 

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