                                                                Aug 21 2013, 5:27 am


FOR PUBLICATION


ATTORNEYS FOR APPELLANT:                   ATTORNEYS FOR APPELLEE:

ALICE L. BARTANEN BLEVINS                  GREGORY F. ZOELLER
ETHAN G. BARTANEN                          Attorney General of Indiana
Bartanen Law Office, LLC
Salem, Indiana                             MICHAEL GENE WORDEN
                                           Deputy Attorney General
                                           Indianapolis, Indiana


                            IN THE
                  COURT OF APPEALS OF INDIANA

JOHN AARON SHOULTZ III,                    )
                                           )
     Appellant-Defendant,                  )
                                           )
            vs.                            )      No. 36A01-1208-CR-359
                                           )
STATE OF INDIANA,                          )
                                           )
     Appellee-Plaintiff.                   )


                  APPEAL FROM THE JACKSON CIRCUIT COURT
                      The Honorable William E. Vance, Judge
                          Cause No. 36C01-0905-MR-2



                                August 21, 2013

                  MEMORANDUM DECISION–FOR PUBLICATION

BAKER, Judge
          In this case, appellant-defendant John Aaron Shoultz III’s cruelty toward animals

to control and manipulate those around him took a more sinister turn on the evening of

May 2, 2009. That evening, Shoultz decided to kill his mom’s new puppy, which she had

received as a gift from Shoultz’s dad after Shoultz had slit the throat of his mom’s beagle

a few weeks before. Shoultz’s girlfriend convinced him to duct-tape the dog’s legs

instead. When Shoultz’s father went to confront him, Shoultz shot him several times,

killing him.

          Shoultz now appeals his convictions for Murder,1 a felony, and Unlawful

Possession of a Firearm by a Serious Violent Felon,2 a class B felony, raising numerous

arguments. More particularly, Shoultz contends that the trial court erred by allowing

testimony regarding prior acts of animal cruelty and an earlier conviction for battery with

a deadly weapon against his father. Additionally, Shoultz maintains that the trial court

erred by refusing to grant his oral request for a continuance to locate a witness. Further,

Shoultz alleges that the prosecutor committed misconduct and that the trial court erred by

refusing to give his proffered jury instructions. Finally, Shoultz argues that there is

insufficient evidence to sustain his conviction for murder in light of inconsistent witness

statements and his self-defense claim. Finding no error and sufficient evidence, we

affirm the judgment of the trial court.




1
    Ind. Code § 35-42-1-1(1).
2
    Ind. Code § 35-47-4-5(c).
                                              2
                                               FACTS

       Andrea Howard and Shoultz3 began dating around October 2008, and shortly after,

they moved in with Shoultz’s mother and father, John and Rhonda Shoultz, in Tampico.

During the time that Andrea lived with Shoultz, she had a dog named Nightmare, and

Shoultz had a dog named Ring. When Andrea first moved in with the Shoultzes, Rhonda

had a beagle named Kane. Shoultz had an unusual hatred for small dogs, such as Kane.

Indeed, several weeks before the incident that is the subject of this appeal, Shoultz slit

Kane’s throat inside his parents’ home when Rhonda tried to break up an argument

between Shoultz and Andrea after Andrea told Shoultz that she wanted to move out.

Andrea did not leave Shoultz at that time because she feared him.

       Although Shoultz had a vehement hatred for small dogs, this did not stop him

from killing larger breeds as well. Before slitting Kane’s throat, Shoultz took Andrea out

to the barn, gave her a gun, and told her to shoot one of his pit bull dogs that was tied up

in the barn and wagging its tail. When Andrea refused to do it, Shoultz took the gun, shot

and killed the dog and told Andrea that she had better do what he told her. This incident

also caused Andrea to fear Shoultz.

       After Shoultz had killed Kane, John moved out for a few weeks, but returned with

a puppy for Rhonda which she named Tiny Tot. On the evening of May 2, 2009, Andrea

woke up after sleeping all day. After showering, she returned to the bedroom where



3
  In the trial transcript, the defendant’s family name is spelled “Schultz,” but the rest of the record
indicates that the correct spelling is “Shoultz.” Consequently, we will use the latter spelling.
                                                  3
Shoultz began ranting about his mother having another dog and how he hated that dog.

Shoultz stated that he wanted to kill Tiny Tot, but Andrea dissuaded him from killing the

dog and suggested that instead, they tape the dog’s legs together. Shoultz agreed to this.

       Andrea and Shoultz snuck into Rhonda’s bedroom where she was sleeping with

Tiny Tot, took the dog back to their bedroom, duct-taped the dog’s legs together, and

returned the dog to Rhonda, who was still sleeping. When Rhonda woke up and saw

what had happened to Tiny Tot, she began yelling angrily and woke John, who stated that

Shoultz and Andrea should not have done that to Tiny Tot.

       Rhonda and John attempted to remove the duct tape from Tiny Tot, but their

efforts only caused the puppy pain. Andrea overheard John remark that he should do the

same thing to her and Shoultz’s dogs, so she gathered their dogs and brought them into

their bedroom. Andrea did not hear John make any threat against her or Shoultz. When

Andrea returned to the bedroom with the dogs, Shoultz was sitting on the bed facing the

door, holding a gun in both hands and pointing it towards the door. Andrea closed the

door when she returned with the dogs, and Shoultz locked the bedroom door. Shoultz

then returned to the bed and pointed the gun at the door.

       John turned the door knob, and Shoultz told him to not enter the room, but John

opened the door and took several steps into the room, cradling Tiny Tot in his arms. John

did not have a weapon and did not say anything.             Shoultz then fired four shots

approximately one to two seconds apart. John fell to the floor, and Shoultz knelt by his

father for a few seconds and told him to not die. Shoultz and Andrea then left their

                                             4
bedroom to look for Rhonda but were unable to find her because she had fled and hid

when she heard the gunshots.

       Shoultz suggested that they blame the shooting on Rhonda.            Shoultz took

Rhonda’s car keys and cell phone from her purse and left the house with Andrea. Shoultz

used Rhonda’s cell phone to call his paternal grandmother, Mary Jane Johnson, and told

his grandmother that he had just shot his father. Following this cell phone call, Shoultz

walked back into his bedroom, stepped over his dying father who was gasping for air, and

retrieved his shoes so that he and Andrea could leave the house.

       Shoultz hid the gun in the barn, and then he and Andrea drove away in Rhonda’s

van. Andrea called her mother and told her what had happened, but she did not believe

her daughter. Shoultz received a phone call from his grandmother or aunt. Shoultz told

the caller that Andrea had shot and killed John. Shoultz also called his aunt, Mona Lisa

Black, and told her that Andrea had killed John, shooting him ten times. Black asked

Shoultz if he had called 911, to which he responded that he had not because he feared that

he would be blamed. A short time later, police officers pulled over the van and took

Andrea and Shoultz into custody.

       When North Vernon Police Officer Todd Beam conducted a pat-down search of

Shoultz, he recovered several knives and a latex glove containing several bullets.

Jackson County Deputy Sheriff Jeff Walters advised Shoultz of his rights and then

Shoultz blurted out that his mother and father had been arguing and that his mother shot

his father.

                                            5
       Shoultz and Andrea were separated, and at first, Andrea told the police that she

threw the gun under a pile of wood and that she had shot John. However, Andrea later

conveyed to the officers that Shoultz had shot his father.

       Amy Burrows-Beckham, M.D., an assistant medical examiner in Kentucky,

performed an autopsy on John. Her examination revealed that John had sustained three

bullet wounds, one that entered his abdomen and two that entered the right side of his

chest. John had also sustained a bullet wound to his right hand that likely went through

his hand and into his abdomen. John further suffered a serious wound to his left foot that

was ulcerated, infected, and down to the bone. This wound would have caused John

serious pain, forcing him to walk with a significant limp. Tiny Tot did not escape the

attack unscathed; he was struck with a bullet in the leg while John was holding him.

       The gunshot wound to John’s abdomen would not have caused death had he

received medical treatment; however, the gunshot wounds to the chest would have been

fatal in any event. Thus, John’s cause of death was from two gunshot wounds to his

chest, and the manner of death was homicide.

       On May 6, 2009, the State charged Shoultz with Count I, murder, a felony; and

Count II, unlawful possession of a firearm by a serious violent felon, a class B felony.

On May 29, 2012, Shoultz filed a self-defense claim.

       While in jail, Shoultz had a recorded telephone conversation with his mother,

Rhonda. During the conversation, Shoultz blamed Rhonda for having Tiny Tot in the

house. He told his mother that he had planned to kill Tiny Tot that night but that Andrea

                                             6
had talked him into duct-taping the puppy instead. Shoultz also told his mother that he

needed Andrea to cooperate and that when he was out of jail, he would kill the new little

dog that she had, even if it meant going back to jail, because “I don’t give a f***. I don’t

like little dogs.” Tr. p. 229.

        Shoultz’s jury trial commenced on June 4, 2012. Andrea testified for the State,

describing in detail the events surrounding Shoultz slitting Kane’s throat, shooting his

own pit bull, and shooting his father. Following the presentation of the State’s case-in-

chief, Shoultz verbally requested a continuance because he wanted to call Andrea as a

defense witness but was unable to find her at that time. The trial court denied Shoultz’s

request, concluding that the issues that Shoultz wished to question Andrea about had

already been covered by her earlier testimony. The trial court also determined that it was

not convinced that Andrea has been properly served with a subpoena because the defense

had served Andrea’s attorney in another case, and Andrea was not a party to the present

case.

        Likewise, the trial court refused to give Shoultz’s self-defense instructions, but

instead, gave its own. On June 8, 2012, the jury found Shoultz guilty on both counts. On

July 16, 2012, the trial court sentenced Shoultz to fifty-eight years on the murder

conviction and to a concurrent term of fifteen years on the SVF conviction, for a total

aggregate sentence of fifty-eight years imprisonment. Shoultz now appeals.




                                             7
                               DISCUSSION AND DECISION

                 I. Evidence Rule 404(b): Other Crimes, Wrongs, and Acts

        Shoultz argues that the trial court erred by permitting testimony regarding his acts

of animal cruelty. Additionally, Shoultz contends that the trial court erred by allowing

testimony concerning prior violent acts that Shoultz had committed against his father in

2006.

        Whether to admit or exclude evidence is within the sound discretion of the trial

court. Hardiman v. State, 726 N.E.2d 1201, 1203 (Ind. 2000). We will reverse the trial

court’s decisions regarding the admission or exclusion of evidence when it has been

demonstrated that the trial court abused its discretion, which occurs when the trial court’s

evidentiary ruling is clearly against the logic and effect of the facts and circumstances

before it. Id.

                                         A. Waiver

        As an initial matter, the State argues that Shoultz has waived any claim that the

trial court erred in admitting evidence of Shoultz’s prior bad acts of animal cruelty

because he failed to raise objections to this evidence when it was introduced at trial. The

failure to make a contemporaneous objection to evidence when it is offered waives any

claim of error in its admission on appeal. Bean v. State, 913 N.E.2d 243, 253 (Ind. Ct.

App. 2009). The reasoning behind this rule, in part, is to immediately and fully alert the

trial court of the legal issue. Id.



                                             8
       Shoultz challenges the admission of evidence pertaining to acts of cruelty inflicted

upon Kane and his own pit bull. Regarding Kane, Andrea testified that when Kane

followed Rhonda to break up an argument between Shoultz and Andrea, Shoultz told his

mother to “get that f***ing dog out of his room.” Tr. p. 49. Shoultz then stabbed Kane

“around its stomach,” after which Kane ran away “bleeding and yelping.” Id. at 49-50.

Shoultz then followed the dog, grabbed him “by the scruff of his neck and slit his throat.”

Id. at 50-51.

       Not once during this emotionally-charged testimony did Shoultz lodge an

objection. Instead, Shoultz relies on a motion in limine filed before trial. However, “[a]s

a general rule, motions in limine do not preserve errors for appeal; the defendant must

reassert his objection at trial contemporaneously with the introduction of the evidence.”

White v. State, 687 N.E.2d 178, 179 (Ind. 1997). Consequently, Shoultz has waived this

claim as it pertains to Kane, his mother’s beagle.

       Waiver notwithstanding, Andrea’s testimony reveals the intense conflict in the

home and is further evidence of Shoultz’s admitted hatred of small dogs. This was

followed a few weeks later by the torturing of Rhonda’s new Chihuahua puppy, another

small breed dog, and the murder of his father. This certainly is relevant to motive and

intent, particularly in light of the fact that Shoultz had asserted self-defense.      See

Goldsberry v. State, 821 N.E.2d 447, 456 (Ind. Ct. App. 2005) (concluding that evidence

of prior altercations were admissible when the defendant had alleged self-defense,



                                             9
placing his intent into issue, and frequent conflicts between the parties was relevant to

show motive).

       Moving forward to Shoultz’s pit bull, during direct examination Andrea was asked

why she was so afraid of Shoultz such that she had initially taken the blame for John’s

murder. Andrea responded that Shoultz had taken her out to the barn where he had one

of his pit bulls chained and told her to shoot the dog. Andrea testified that the dog was

“[w]agging her tail” and that she “couldn’t do it.” Tr. p. 134. Shoultz took the gun and

shot the dog. Shoultz instructed Andrea that she needed to stand by him, and she stated

that she was afraid of him after that. Id.

       While no objection was made during Andrea’s testimony, just prior to this

testimony, there was a brief recess during which the prosecutor brought to the attention of

the trial court an earlier “affirmative motion in limine” requesting that the State be

permitted to introduce testimony regarding the pit bull incident.        Tr. p. 125.    The

prosecutor requested that the trial court reconsider its previous denial of that motion in

light of questions that Andrea had been asked on cross-examination regarding her fear of

Shoultz. Both the prosecutor and defense counsel intensely expressed their positions

regarding the request. In light of the fact that the trial court was fully alerted as to the

precise legal issue, the purpose behind the contemporaneous objection rule has been

satisfied. Accordingly, these circumstances present a rare exception to that rule, and

Shoultz has not waived this issue on appeal.



                                             10
                                           B. The Pit Bull

        Shoultz maintains that the trial court erred by allowing testimony concerning

cruelty that he displayed towards his pit bull. 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 conformity 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 . . . .

“The list of other purposes is illustrative not exhaustive.” Hicks v. State, 690 N.E.2d

215, 219 (Ind. 1997).

        In Hicks, our Supreme Court established the standard for assessing the

admissibility of 404(b) evidence:4 (1) the court must determine whether the evidence 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 evidence against its

prejudicial effect under Evidence Rule 403. Id. at 221.

        Here, as stated above, the prosecutor argued that Andrea should be permitted to

testify regarding the pit bull incident because the defense had put Andrea’s fear of

Shoultz into issue. More particularly, the prosecutor stated:

        I think that is relevant because the defense asked the following questions,
        um, said once they were separated into different squad cars did she still
        continue to tell the same story, did she still continue to, uh, to back the
        story that John Aaron Schultz had brought up to the police and she said that

4
 Although Shoultz suggests that the proper standard for assessing 404(b) claims is the one applied by the
United States Court of Appeals for the Seventh Circuit, appellant’s br. p. 16, our Supreme Court has
explicitly stated “We see no persuasive reason to adopt the Seventh Circuit test.” Hicks, 690 N.E.2d at
219. Accordingly, we will analyze Shoultz’s claims pursuant to the standard established by our Supreme
Court.
                                                   11
       she did Um, that she did even after they were separated and then asked her
       did my client ever threaten you to which, you know, on that day, to which
       she said no, but at that point I believe that it becomes relevant when she’s
       been threatened in the past . . . .

Tr. p. 126. And when the trial court granted the prosecutor’s request, it stated,

       I do believe that once this witness is questioned concerning whether or not
       she was threatened by the defendant that, uh, uh, that has to speak to
       whether or not the witness has a reasonable fear and other evidence then to,
       that’s she’s been impeached, if you will, on that and I believe that’s, that
       evidence is relevant to, uh, deal with that.

Id. at 130 (emphasis added).

       It is evident from the prosecutor’s argument and the trial court’s rationale for

permitting the testimony that the evidence was relevant to a matter other than Shoultz’s

propensity to commit murder, namely, to rehabilitate Andrea after her fear of Shoultz had

been placed into question by the defense on cross-examination.            Accordingly, the

testimony survives the first prong of the Hicks test.

       As for the second prong, under Rule 403, relevant evidence may be excluded “if

its probative value is substantially outweighed by the danger of unfair prejudice . . . .”

(Emphasis added). Here, Andrea had already testified that Shoultz had slit Kane’s throat

and that she had convinced him to duct-tape Tiny Tot’s legs instead of killing him, which

is what Shoultz had wanted to do. Tr. p. 51, 58. In light of fact that the jury had already

heard testimony regarding those two instances of animal cruelty and that Andrea’s fear of

Shoultz had been brought into issue by the defense, we cannot say that the probative

value of Andrea’s testimony regarding the pit bull incident was substantially outweighed


                                             12
by the danger of unfair prejudice. Thus, her testimony survives the second prong of the

Hicks test, and the trial court did not err by permitting it.

                             C. Prior Violent Acts Against John

       Shoultz argues that the trial court erred by allowing testimony regarding prior

violent acts that Shoultz had committed against his father. Although Shoultz concedes

that his conviction for battery with a deadly weapon is relevant for purposes of the jury to

determine whether he was a serious violent felon as charged in Count II, he argues that a

record of his conviction would have sufficed to prove this rather than a long line of

questioning by the prosecution that elicited details of the event.

       Here, Rhonda testified that Shoultz “did cut his dad at one point, yes” and that she

had to take her husband to the hospital as a result of the injuries he sustained in that

attack. Tr. p. 221-22. Rhonda stated that Shoultz pleaded guilty and was convicted of

battery with a deadly weapon. Id. at 222. Shoultz did not object to any of this testimony.

       After Rhonda gave this testimony, the prosecutor and the defense counsel had a

conference with the trial judge regarding the same incident. The prosecutor wanted to

tell the entire story including that Shoultz had shot his dad’s dog for urinating on the

floor, which is what had precipitated the fight. Tr. p. 357. Defense counsel objected to

any further details, arguing that they were too remote, occurring almost three years before

John was murdered. Ultimately, the trial court decided to not allow these additional

details, noting that there had been sufficient acts of animal cruelty brought to the

attention of the jury during the course of the trial.

                                               13
       Although the trial court ruled in Shoultz’s favor on this evidentiary issue, he

complains that Deputy Sheriff Adam Nicholson testified that Shoultz had told him that

“he took an action that he reasonably knew would anger his father[.]” Tr. p. 416.

Shoultz further argues that this question was used during closing argument to assert that

his prior act resulted in John being stabbed in the face with a knife. Appellant’s Br. p. 17.

       Errors in the admission of evidence are generally to be disregarded unless they

affect the defendant’s substantial rights. Hoglund v. State, 962 N.E.2d 1230, 1238 (Ind.

2012), reh’g denied. Here, the evidence presented through Deputy Sheriff Nicholson’s

testimony was merely cumulative of the testimony given by Shoultz’s mother, Rhonda.

       Moreover, as discussed above, the altercation between John and Shoultz was

probative to the level of hostility between them. And it is difficult to maintain that the

probative value is substantially outweighed by the danger of unfair prejudice in that it is

tenuous indeed to assume that the jury made a connection between the “action that

[Shoultz] reasonably knew would anger his father,” appellant’s br. p. 17, and another

instance of animal abuse. Therefore, the evidence did not run afoul of Rule 404(b).

                            II. In-Trial Request for a Continuance

       Shoultz next contends that the trial court erred by failing to grant his motion to

continue so that Shoultz could obtain the presence of a witness. More particularly,

Shoultz wanted the court to adjourn for the day so that he could locate Andrea and

present her as a witness.



                                             14
       Because Shoultz’s oral motion for a continuance made during the middle of his

jury trial did not comply with the statutory requirements of Indiana Code section 35-36-

7-1, which specifies the requirements necessary to postpone a trial because of the absence

of evidence, his continuance motion is non-statutory. As a result, a trial court’s rulings

on such motions are within its sound discretion. Hamilton v. State, 864 N.E.2d 1104,

1108-09 (Ind. Ct. App. 2007).

       On appeal, we will review a trial court’s denial of a non-statutory continuance

motion only for an abuse of discretion and resultant prejudice. Barber v. State, 911

N.E.2d 641, 645-46 (Ind. Ct. App. 2009). An abuse of discretion occurs only where the

trial court’s decision is clearly against the logic and effect of the fact and circumstances

before the court. Washington v. State, 902 N.E.2d 280, 286 (Ind. Ct. App. 2009).

Additionally, the appellant must demonstrate that he was prejudiced by the denial.

Hamilton, 864 N.E.2d at 1109. `

       Here, Shoultz asserts that he “believes that there was additional information that

was crucial to his defense that would have been covered during this examination and that

he should have been provided an opportunity to present said information.” Appellant’s

Br. p. 20. Shoultz does not elaborate on the nature of the information that would have

been elicited during his direct examination of Andrea or how it was crucial to his defense.

Thus, Shoultz has failed to establish prejudice.

       Moreover, Shoultz did not try to personally serve Andrea with the subpoena, but

rather, faxed it to an attorney who was representing her in another case. Indiana Trial

                                             15
Rule 4.1 provides that “[s]ervice may be made upon an individual, or an individual acting

in a representative capacity” by registered or certified mail, personally delivering a copy

of the subpoena, leaving a copy at her house, or serving his agent. See also Ind. Trial

Rule 45(C) (providing that service of subpoenas may be made in accordance with Trial

Rule 4). Here, the attorney to whom the subpoena was faxed was not acting as Andrea’s

representative in the instant matter. Additionally, the subpoena was not sent via certified

or registered mail or personal delivery. Consequently, we agree with the trial court that,

under these circumstances, Shoultz did not have a subpoena served on Andrea.

Accordingly, the trial court did not err by denying Shoultz’s motion for a continuance.

                              III. Prosecutorial Misconduct

       Shoultz asserts several instances of prosecutorial misconduct, including:

           Referencing the killing of animals as “murder.”
           Informing the jury about the large amount of State resources spent on
            Shoultz’s trial.
           Playing a recorded jailhouse telephone conversation between Shoultz and
            Rhonda where Shoultz states: “I’ll come back to jail, I don’t give a f***. I
            don’t like little dogs.” Tr. p. 541.

Shoultz alleges that he did not waive these claims by failing to object and requesting a

mistrial because these instances of misconduct rose to the level of fundamental error.

       Generally, to preserve a claim of prosecutorial misconduct, a defendant must

request an admonishment or a mistrial if an admonishment is inadequate. Castillo v.

State, 974 N.E.2d 458, 468 (Ind. 2012). Failure to follow these steps results in waiver.

Id.

                                            16
       Nevertheless, an appellant can attempt to avoid waiver by invoking the

fundamental waiver doctrine. Id. The fundamental error doctrine is extremely narrow.

Mathews v. State, 849 N.E.2d 578, 587 (Ind. 2006). To be sure, it “applies only when the

error constitutes a blatant violation of basic principles, the harm or potential for harm is

substantial, and the resulting error denies the defendant fundamental due process.”

McQueen v. State, 862 N.E.2d 1237, 1241 (Ind. Ct. App. 2007).

       As for the prosecutor describing as “murder” the two instances that Shoultz

brutally killed two helpless dogs, although that word is a legal term of art, Shoultz fails to

show error let alone grave peril. The reason is simple: We can rest assured that a jury of

Shoultz’s peers will not become entangled in a legal term of art. Instead, there is nothing

to indicate that the citizens of this State did not use common sense to understand that the

prosecutor’s use of the term “murder” referenced Shoultz’s senseless killing of two dogs

who were not showing the slightest bit of aggression.

       Moving on to the prosecutor’s statements that the State had expended vast

amounts of resources in trying to bring Shoultz to justice, Shoultz has taken this

statement out of context. In an attempt to rebut a statement that the State had presumed

that this case was simply “trash killing trash,” tr. p. 546, the prosecutor wanted to assure

the jury that the case was adequately investigated. Specifically, the prosecutor stated

       the defendant did a significant amount of forensic testing and spent a huge
       amount of the state’s resources to make sure that witness testimony and
       evidence gathered in this case were, in fact, backed up by scientific
       evidence in this case so that the case was fully investigated and so that you,
       the jury, would ultimately be comfortable about it.

                                             17
Tr. p. 546.

       It is apparent from the above statements that the prosecutor wanted to alleviate any

concerns that the jury might have harbored regarding the quality of the investigation in

light of the social status of the victim and the alleged perpetrator.          This is not

impermissible, and indeed, we want the citizens of this State to be informed that crimes

are investigated with vigor regardless of social status. Consequently, there was no error.

       Shoultz’s final claim of prosecutorial misconduct involves the telephone

conversation between him and Rhonda that was recorded while he was in jail and played

for the jury during closing argument.        More particularly, Shoultz claims that the

prosecutor deliberately misstated that Shoultz had said to Rhonda, “I’ll come back and

kill ‘em,” when what he actually said was “I’ll come back to jail.” Tr. p. 541, 557. In

any event, the prosecutor explained to the jurors that it was up to them to decide what

Shoultz had said and that either version had the same effect, namely, that Shoultz did not

care about the consequences of his actions. Id. at 605. Under these circumstances, we

cannot say that the prosecutor committed misconduct.

                                   IV. Jury Instructions

       Shoultz asserts that the trial court erred by denying his proffered jury instructions

on self-defense. The State claims that Shoultz has waived this issue because he failed “to

set out in the argument section of his appellant’s brief the verbatim jury instructions and




                                            18
the verbatim objections at trial regarding the relevant jury instructions.” Appellee’s Br.

p. 21.

         Appellate Rule 46(A)(8)(e) provides that “[w]hen error is predicated on the giving

or refusing of any instruction, the instruction shall be set out verbatim in the argument

section of the brief with the verbatim objections, if any made thereto.” Shoultz concedes

that he failed to set out the instructions or the objections verbatim in the argument section

of his brief. Nevertheless, Shoultz points out that his proposed jury instructions and the

final jury instructions have been included in the Appellant’s Appendix to which he cites.

Additionally, Shoultz highlights the fact that he cited to portions of the record where the

relevant objections were made. Therefore, according to Shoultz, he has followed the

“spirit” of the Rule 46(A). Reply Br. p. 10.

         While we encourage practitioners and others appearing before this Court to follow

the precise instructions of the Appellate Rules rather than simply the “spirit” of the Rules,

we also prefer to decide cases and issues on the merits. But even more applicable to the

instant case, Shoultz has impeccably cited to the appendix and transcript, thereby

permitting this Court to easily evaluate his claim. Therefore, Shoultz has not waived this

claim.

         Proceeding to the merits, when determining whether the trial court erred in

refusing the defendant’s tendered instruction, this Court will look to whether: (1) the

tendered instruction correctly states the law; (2) there is evidence in the record to support



                                               19
the giving of the instruction; and (3) the substance of the tendered instruction is covered

by other instructions. Sylvester v. State, 698 N.E.2d 1126, 1131 (Ind. 1998).

       Here, the trial court gave the jury the following instruction on self-defense:

       It is an issue whether the Defendant acted in self-defense. A person may
       use reasonable force against another person to protect himself from what he
       reasonably believes to be the imminent use of unlawful force. A person is
       justified in using deadly force, and does not have a duty to retreat, only if
       he reasonably believes that deadly force is necessary to prevent serious
       bodily injury to himself. However, a person may not use force if: He is
       committing a crime that is directly and immediately connected to the
       confrontation giving rise to the self-defense claim or he provokes a fight
       with another person with intent to cause bodily injury to that person. The
       State has the burden of proving beyond a reasonable doubt that the
       Defendant did not act in self-defense.

Appellant’s App. p. 13.

       This instruction comports with statutory law, inasmuch as it tracks Indiana Code

section 35-41-3-2 (Self-Defense Statute).         Moreover, it comports with applicable

caselaw. In Mayes v. State, our Supreme Court concluded that although a defendant may

be committing a crime at the time he is allegedly defending himself, this is not sufficient

to deprive the defendant of a self-defense instruction. 744 N.E.2d 390, 394 (Ind. 2001).

Instead, “there must be an immediate causal connection between the crime and the

confrontation.” Id. In other words, if the defendant had not committed the crime, the

confrontation with the victim and the resulting injury would not have occurred. Id.

       By contrast, Shoultz’s tendered instructions did not mention the “committing a

crime” provision.    Appellant’s App. p. 11-12.       Accordingly, they were not correct



                                             20
statements of the law applicable to this case, and the trial court did not err by refusing to

give them.

                               V. Sufficiency of the Evidence

       Finally, Shoultz argues that the evidence was insufficient to sustain his conviction

for murder. When reviewing a challenge to the sufficiency of the evidence, this Court

neither reweighs the evidence nor judges the credibility of witnesses. Treadway v. State,

924 N.E.2d 621, 639 (Ind. 2010). Instead, we will consider only the probative evidence

and the reasonable inferences supporting the trial court’s verdict. Id.

       Additionally, when a defendant claims self-defense and there is evidence in the

record that provides support for that claim, the State, has the burden to negate at least one

of the necessary elements of the self-defense claim beyond a reasonable doubt. Bryant v.

State, 984 N.E.2d 240, 250 (Ind. Ct. App. 2013). On appeal, the standard of review when

self-defense is claimed is the same as the sufficiency standard. Randolph v. State, 755

N.E.2d 572, 576 (Ind. 2001).

       Shoultz makes two arguments, namely, that Andrea gave inconsistent statements,

and the evidence indicated that Shoultz acted in self-defense. The first is easily disposed

of because, as stated above, we do not judge the credibility of witnesses. Treadway, 924

N.E.2d at 639.

       As for Shoultz’s claim of self-defense, to succeed on this claim, a defendant must

present evidence that he: (1) was in a place that he had a right to be in; (2) did not



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provoke, instigate, or participate willingly in the violence; and (3) had a reasonable fear

of death or great bodily harm. Bryant, 984 N.E.2d at 250.

       In this case, Andrea testified that Shoultz wanted to kill his mother’s new puppy

but that she talked him into duct-taping its legs together instead to distract him and that

the two of them carried out this plan together. Tr. p. 57-61. This occurred in the context

of Shoultz having slit the throat of his mother’s beagle, and he knew how this incident

had upset his father. Id. at 48-54. Furthermore, Shoultz’s father had purchased the new

puppy for his mother after Shoultz had slit the beagle’s throat. Id. at 54-55.

       From these facts, the factfinder could reasonably infer that Shoultz wanted to do

something terrible to the puppy to upset his parents, which he did. Then, knowing that

his father would confront him about the mistreatment of the puppy, Shoultz armed

himself and waited to ambush his unarmed father. Id. at 65-77. When John opened the

door and stepped into Shoultz’s room, he fired four shots at John, killing him. Id. at 74-

79. This evidence demonstrates that Shoultz instigated the violence that led to him

killing his father.

       Nevertheless, Shoultz argues that a “simple practical joke on a Chihuahua could

not have been foreseen to escalate to the point which it did.” Reply Br. p. 11. Then

Shoultz asserts “[a] reasonable and expected response to such a prank would not have

involved the use of a deadly weapon and a violent entry into the Appellant’s room.” Id.

       This argument is nothing short of absurd. It was Shoultz who used a deadly

weapon to kill his own father.      Furthermore, to characterize duct-taping a helpless

                                             22
animal’s legs as a “practical joke” or a “prank” diminishes the seriousness of Shoultz’s

actions and is anything but humorous and perhaps a criminal offense. See Ind. Code §

35-46-3-12(c) (providing that a person who intentionally tortures a vertebrate animal

commits a class D felony). In any event, this argument fails.

                                      CONCLUSION

       The trial court did not err by allowing evidence concerning Shoultz’s prior acts of

animal cruelty and earlier conviction for battery with a deadly weapon against his father.

Additionally, the trial court did not err when it denied Shoultz’s oral request for a

continuance, insofar as Shoultz made no effort to personally serve the witness with a

subpoena and failed to show prejudice from the denial of the continuance. Further,

Shoultz has failed to demonstrate prosecutorial misconduct, and the trial court properly

refused his proffered jury instructions because they were not correct statements of the law

applicable to this case.    Finally, the State presented sufficient evidence to sustain

Shoultz’s murder conviction and to negate his claim of self-defense, inasmuch as he

instigated the confrontation with his father.

       The judgment of the trial court is affirmed.

FRIEDLANDER, J., and VAIDIK, J., concur.




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