Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any
                                                           May 22 2013, 9:16 am
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:

PATRICIA CARESS McMATH                          GREGORY F. ZOELLER
Indianapolis, Indiana                           Attorney General of Indiana

                                                MICHAEL GENE WORDEN
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

PAUL REESE,                                     )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 49A04-1207-CR-381
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE MARION SUPERIOR COURT
                          The Honorable Robert Altice, Judge
                           Cause No. 49G02-1102-MR-10926


                                       May 22, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                               STATEMENT OF THE CASE

      Appellant-Defendant, Paul Reese (Reese), appeals his conviction for murder, a

felony, Indiana Code § 35-42-1-1, as well as the sentence imposed thereon.

      We affirm.

                                         ISSUES

      Reese raises two issues on appeal, which we restate as follows:

      1.      Whether the trial court erred when it instructed the jury on accomplice

              liability; and

      2.      Whether the trial court erred in sentencing Reese.

                        FACTS AND PROCEDURAL HISTORY

       The facts most favorable to the verdict reveal that in March 1986, Reese lived at

1428 N. Bosart Avenue with his wife Barbara (Barbara), his six children; sixteen-year-

old Paul, Jr. (Paul, Jr.), fifteen-year-old Johnny, fourteen-year-old Brian, thirteen-year-

old Jeremy, twelve-year-old Jenny, five-year-old Cindy, and Paul, Jr.’s girlfriend,

seventeen-year-old Pamela Winningham (Winningham). Thirteen-year-old D.S. lived a

block away on Drexel Avenue. D.S. was friends with Reese’s children and often helped

Reese’s wife deliver newspapers. D.S.’s parents worked in Dayton, Ohio and returned to

Indianapolis on the weekends to see their daughter. While her parents were in Dayton

during the week, D.S. stayed with her aunt, who lived a few blocks north on Drexel

Avenue.



                                            2
       On Sunday, March 16, 1986, D.S.’s parents left early for Dayton. D.S. was

supposed to walk to her aunt’s house when she woke up. Instead, D.S. walked over to

the Reeses’ home about 9:30 that morning. Reese, Barbara, Paul, Jr., Winningham, and

Reese’s daughters were all at the house. The Reeses had a pool table in the basement,

and D.S. asked Reese if he would play a game with her. Reese responded that he would

play with her later in the morning. D.S. then asked Winningham if she wanted to play a

game, but Winningham and Paul, Jr., were on their way to a local flea market with Paul,

Jr.’s friend, seventeen-year-old Tim Kelly (Kelly). When Paul, Jr. and Kelly returned to

the house between 10:30 and 11:00 a.m. because they had forgotten something, D.S.

opened the door for them. She was holding a pool cue in her hand. Kelly and Paul, Jr.

left the house again about noon.

       Between noon and 2:00 that afternoon, sixteen-year-old Doyle Stinson knocked on

the Reeses’ door. D.S. opened the door, but it was quickly slammed shut by someone

standing behind her. Doyle did not knock again and left. Winningham returned home

about 4:30 p.m. Reese looked as if he had just taken a shower and Winningham did not

see D.S. She assumed Barbara and her daughters were home because she could hear a

television playing. Reese told Winningham not to go down to the basement where she

shared a room with Paul, Jr.

       About 3:00 that afternoon, D.S.’s aunt contacted D.S.’s parents in Dayton to let

them know that D.S. was missing. D.S.’s parents immediately returned to Indianapolis to

help search for their daughter. The first place D.S.’s father went to look for his daughter

                                            3
was the Reeses’ home. Barbara opened the door and denied that D.S. had been at their

home that day. When her young daughter spoke up and said, “yes, mom, she was --,”

Barbara smacked her across the face to silence her. (Tr. p. 76).

       The testimony further showed that that evening, Paul, Jr. borrowed Kelly’s car.

When Paul, Jr., returned the car, his hair was messed up and his face was flushed. The

car had mud on it, the back seat was down, and the speakers had been moved. There

were also items in the car that had not been there when Kelly loaned the car to Paul, Jr.

including one half of a pool cue, some wadded up tape, newspapers, and some black

spray paint. Later that evening, Reese asked Kelly for a ride to look at some old tires.

During the drive, Reese directed Kelly to drive by a ravine near 22nd Street and Drexel

Avenue as well as a baseball park at 19th Street and Forest Manor Avenue.

       Paul, Jr., and Winningham went to sleep in the basement about 11:30 that night.

About an hour later, Winningham woke up when she heard someone in the basement

making a clattering noise. She asked who was there and Barbara responded that she was

doing laundry.   However, Winningham did not hear either the washer or the dryer

running. She did hear Reese’s voice.

       Between 1:00 and 1:30 a.m., the Reese’s neighbor Carol Luken was up with her

dog’s newborn puppies when she heard loud talking and the sound of banging doors

coming from the Reeses’ house. She observed Reese and Paul, Jr. pushing one of the

family’s cars into the street. Reese then backed the family station wagon to the back door

of the house, and he and his son carried a six to seven-foot long rolled up rug out of the

                                             4
house and loaded it into the back of the station wagon. The rug sagged in the middle as

the two men carried it. Barbara drove the car away with its headlights off. Reese was in

the car with her.

       The following day, a woman walking her daughter to school noticed D.S.’s body

in a ravine in the vicinity of 22nd Street and Drexel Avenue near where Kelly had driven

Reese the preceding day to look for tires. Dogs had been heard barking in the area at

1:30 a.m. that morning. Police believed that D.S.’s body had been dropped down the

ravine, but that she had been killed somewhere else. D.S. had a bruise on the bridge of

her nose and multiple small abrasions on her forehead and cheek. There was residue

from adhesive tape over her mouth and wrist. She also had an injury to the back of her

head consistent with a violent blunt impact to a chimney flue, and her body showed

evidence that she had been strangled. Yellow and green carpet fibers were found on her

clothing, on her body, and inside her mouth. In addition, D.S. had suffered forced sexual

injuries to both her vagina and her anus prior to her death.

       During the investigation into D.S.’s death, the police recovered a red substance

from a brick furnace flue in Reese’s basement. A laboratory analysis revealed that the

substance was type O human blood, which was D.S.’s blood type. D.S.’s injury was

consistent with her head impacting the furnace flue. In addition, the yellow and green

carpet fibers found on and around D.S. could have had a common origin with a six-foot

long piece of carpet found at 19th Street and Forest Manor Avenue where Reese had



                                             5
directed Kelly to drive him the preceding day. All of these fibers could have also had a

common origin with carpet pieces found in the Reeses’ basement.

       The police questioned Reese in March and April 1986. Reese stated that D.S. was

at his house the morning of March 16 and that they played some pool. Later, Reese

became tired of playing pool with D.S. and went upstairs for some coffee. Although he

did not see D.S. leave, he was positive that D.S. had left the house by noon. At the time,

Reese and Barbara were both “on . . . the [police’s] radar” as suspects in D.S.’s death.

(Tr. p. 772).

       However, the case went cold until 2008 when it was re-examined using new DNA

technology. Final result of the tests received in 2011 revealed that the red substance on

the brick furnace flue in Reese’s basement contained D.S.’s DNA. Also in January 2011,

policed received a letter from inmate DeAngelo Gaines, who had been incarcerated with

Reese both in the Marion County Jail and the Pendleton Correctional Facility on other

charges. In the letter, Gaines explained that Reese had told Gaines that Reese deserved to

be punished because he had previously taken the life of someone in his neighborhood a

quarter of a century ago. Later, Reese told Gaines that he could not be convicted of the

prior murder of a young girl who had been a friend of his son’s because of the statute of

limitations. Reese explained that he had killed the girl because she had “stayed too late”

and that he dumped her body near 21st Street. (Tr. p. 807).

       On February 17, 2011, the State filed an Information charging sixty-nine-year-old

Reese with murder, a felony. At trial, which began on June 18, 2012, Dr. Dean Hawley

                                            6
testified that a pool cue could have caused D.S.’s strangulation injuries as well as the

injury to the bridge of her nose. Dr. Hawley further testified that in his opinion, D.S. died

as a result of asphyxia due to strangulation and blunt force injuries to her hands, face, and

neck.

        Also during trial, the State tendered the follow instruction on accomplice liability:

        A person who knowingly aids another person to commit an offense
        commits that offense even if the other person:

        1. has not been prosecuted for the offense;
        2. has not been convicted of the offense; or
        3. has been acquitted of the offense.

(Appellant’s App. p. 114).       Reese specifically stated that he was “fine with” this

instruction (Tr. p. 1046), and did not object to it. A jury convicted Reese as charged on

June 22, 2012.

        On July 18, 2012, the trial court conducted a sentencing hearing.           Evidence

introduced at the hearing revealed that Reese has an extensive history of serious felony

convictions, which include: 1) voluntary manslaughter in 1979 for beating the victim to

death with a claw hammer; 2) burglary as a class B felony in 1989 for breaking and

entering a residence with intent to commit theft; 3) burglary as a class B felony in 1995

for breaking and entering a residence with intent to commit theft; and 4) two counts of

robbery as class B felonies in 1997. Further, in 2008, Reese was charged with murder

and burglary as a class A felony. He pled guilty to burglary.




                                              7
       The trial court found Reese’s age and mental health to be mitigating

circumstances. The trial court further found Reese’s extensive criminal history to be an

aggravating factor. In addition, the trial court explained as follows:

       The [c]ourt likewise believes that the nature and the circumstances of this
       crime were very aggravating. A 13 year-old young girl sexually assaulted,
       strangled with a pool cue, wrapped in a carpet, and then dumped in a ravine
       for a neighborhood lady walking her young child to school to find; laying
       down in a ravine. . . . [T]he [c]ourt believes that the appropriate sentence
       in this case for what this [c]ourt in the last 12 years has seen as one of the
       worst of the worst is 60 years in the Department of Corrections.

(Tr. p. 1133).

       Reese now appeals. Additional facts will be provided as necessary.

                             DISCUSSION AND DECISION

                                    I. Jury Instructions

       Reese first argues that the trial court erred in instructing the jury on accomplice

liability. He has waived appellate review of this issue because he failed to object to the

instruction at trial. See Gamble v. State, 831 N.E.2d 178, 185 (Ind. Ct. App. 2005), trans.

denied. Reese attempts to avoid waiver by claiming that the trial court’s instruction

constituted fundamental error. The fundamental error exception to the waiver rule is an

extremely narrow one. Munford v. State, 923 N.E.2d 11, 13 (Ind. Ct. App. 2010). To

rise to the level of fundamental error, the error must be so prejudicial to the rights of the

defendant as to make a fair trial impossible. Id. Specifically, the error must constitute a

blatant violation of basic principles, the harm or potential for harm must be substantial,

and the resulting error must deny the defendant fundamental due process. Id. at 13-14.

                                              8
When we consider a claim of fundamental error with respect to jury instructions, we look

to the jury instructions as a whole to determine if they were adequate. Id. at 14.

       The purpose of jury instructions is to inform the jury of the law applicable to the

facts without misleading the jury and to enable it to comprehend the case clearly and

arrive at a just, fair, and correct verdict. Murray v. State, 798 N.E. 2d 895, 899 (Ind. Ct.

App. 2003). In reviewing the trial court’s decision to give a tendered jury instruction, we

consider whether (1) the instruction correctly states the law, (2) it is supported by the

evidence in the record, and (3) it is not covered in substance by other instructions. Id. at

899-900. The trial court has discretion in instructing the jury, and we will reverse only

when the instructions amount to an abuse of discretion. Id. at 900. To constitute an

abuse of discretion, the instructions given must be erroneous, and the instructions taken

as a whole must misstate the law or otherwise mislead the jury. Id. We will consider

jury instructions as a whole and in reference to each other, not in isolation. Id.

       Reese claims that fundamental error occurred in this case when the jury was

instructed on accomplice liability because there was no evidence in the record to support

an accomplice liability instruction. The accomplice liability instruction statute provides

in relevant part that a “person who knowingly or intentionally aids, induces, or causes

another person to commit an offense commits that offense, even if the other person . . .

has not been prosecuted for the offense . . . .” Ind. Code § 35-41-2-4. In Indiana, there is

no distinction between the responsibility of the principal and an accomplice. Wise v.

State, 719 N.E.2d 1192, 1198 (Ind. 1999). Thus, one may be charged as a principal yet

                                              9
convicted on proof that he or she aided another in the commission of the crime. Id. If

there is some evidence that a second party was involved in the crime, an instruction on

accomplice liability is proper. Id.

       Here, contrary to Reese’s claim on appeal, there was some evidence that more

than one person may have been involved in the crime. For example, our review of the

evidence reveals that Barbara was at home the entire time that D.S. was at the Reeses’

house on March 16, 1986. She lied to D.S.’s father about D.S. being at the Reeses’ house

that day and smacked her young daughter to silence her when the daughter spoke up to

tell D.S.’s father that D.S. had been at the Reeses’ house. Winningham heard Barbara

and Reese making a clattering noise in the basement late that night, and the Reeses’

neighbor saw Barbara and Reese drive away with the car’s lights off after Reese and his

son loaded the car with a rolled carpet that sagged in the middle. Barbara and Reese were

both “on the [police’s] radar” as suspects in D.S.’s murder. This is sufficient evidence of

Barbara’s possible involvement in the crime to warrant an instruction on accomplice

liability in this case. See id.

                                       II. Sentence

       Reese also argues that the trial court erred in sentencing him. At the outset, we

note that the murder in this case occurred in 1986. It is well settled that the sentencing

statute in effect at the time the crime is committed governs the sentence for the crime.

Gutermuth v. State, 868 N.E.2d 427, 432, n. 4 (Ind. 2007). At the time of the murder in

this case, the presumptive sentence was 40 years, with no more than 20 years added for

                                            10
aggravating circumstances and no more than ten years subtracted for mitigating

circumstances. I. C. § 35-50-3-2 (1985). Here, the trial court ordered Reese to serve the

maximum 60-year sentence for murder.

       We further note that because the crime in this case occurred before the 2005

amendments to the sentencing statutes were adopted, we review the sentences under the

presumptive sentencing scheme. See Gutermuth, 868 N.E.2d at 432, n.4. Under the

presumptive sentencing scheme, sentencing determinations are within the trial court’s

discretion, and we will reverse only for an abuse of discretion. Padgett v. State, 875

N.E.2d 310, 315 (Ind. Ct. App. 2007), trans. denied.         It is within the trial court’s

discretion to determine whether a presumptive sentence will be enhanced due to

aggravating factors. Id. When the trial court does enhance a sentence, it 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 factors. Id. It is generally inappropriate for us to substitute our judgment

or opinions for those of the trial court. Id.

       Lastly, we note that a review of a sentence under the presumptive sentencing

scheme implicates Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d

403 (2004). In Blakely, the United States Supreme Court held that the Sixth Amendment

requires a jury to determine beyond a reasonable doubt the existence of aggravating



                                                11
factors used to increase a sentence above the presumptive sentence assigned by the

legislature. Rodriguez v. State, 868 N.E.2d 551, 556 (Ind. Ct. App. 2007).

         Reese specifically argues that his sentence violates Blakely because the trial court

imposed an enhanced sentence based on aggravating factors not found by a jury.

However, under Blakely, prior convictions maybe used to enhance a defendant’s sentence

without a finding of additional facts by a jury. Williams v. State, 830 N.E.2d 107, 113

(Ind. Ct. App. 2005), trans. denied. Further, a single aggravating circumstance can

justify the imposition of an enhanced sentence. Muncy v. State, 834 N.E.2d 215, 218

(Ind. Ct. App. 2005).

         Here, Reese has a prior conviction for voluntary manslaughter for beating the

victim to death with a claw hammer. He also has one prior conviction for class A felony

burglary, two prior convictions for class B felony burglary, and two prior convictions for

class B felony robbery. We conclude that this extensive criminal history supports the

trial court’s imposition of an enhanced sentence. The trial court did not err in sentencing

Reese.

                                       CONCLUSION

         Based on the foregoing, we conclude that the trial court did not err in instructing

the jury or in sentencing Reese.

         Affirmed.

BRADFORD, J. and BROWN, J. concur



                                              12
