MEMORANDUM DECISION
                                                                     Feb 09 2015, 9:57 am
Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be regarded as
precedent or cited before any court except for the
purpose of establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kurt R. Earnst                                            Gregory F. Zoeller
Rachel E. Doty                                            Attorney General of Indiana
Michigan City, Indiana
                                                          Jodi Kathryn Stein
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana




                                             IN THE
    COURT OF APPEALS OF INDIANA

Paul D. Stucker,                                         February 9, 2015

Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         46A05-1403-CR-117
        v.                                               Appeal from the LaPorte Superior
                                                         Court
                                                         Cause No. 46D02-1303-MR-84
State of Indiana,
Appellee-Plaintiff.                                      The Honorable Richard R. Stalbrink,
                                                         Judge




Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015      Page 1 of 15
                                             Case Summary
[1]   Paul Stucker appeals his conviction and sentence for murder. We affirm.


                                                     Issues
[2]   The issues before us are:


              I.       whether the trial court properly admitted photographs of
                       the victim’s burned corpse;


              II.      whether there is sufficient evidence to support Stucker’s
                       conviction; and


              III.     whether Stucker’s forty-five-year sentence is inappropriate.


                                                     Facts
[3]   The evidence most favorable to the conviction is that, in October 1983, Stucker

      and Johnny Hodge were both inmates at the Indiana State Prison (“the Prison”)

      in Michigan City. Hodge was the leader of the Gangster Disciple gang within

      the Prison, which trafficked in drugs. Stucker was a member of the Aryan

      Brotherhood gang. Stucker owed a large drug debt to Hodge. At some point,

      Hodge struck Stucker across the face during a confrontation about the debt.

      After being struck in the face, Stucker told a fellow inmate, Kenneth




      Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 2 of 15
      McDonald,1 that he was not going to pay the drug debt and that instead he

      “was going to do something to Mr. Hodge before Mr. Hodge did something to

      him.” Tr. p. 425.


[4]   Stucker developed a plan to light Hodge on fire using a liquid chemical called

      Naptha, which also is known as camp stove fuel or “white gas.” Id. at 520.

      Naptha liquid is highly flammable and volatile. In 1983, the Prison inmates

      used Naptha in a variety of prison shops and retrieved it from a fifty-five gallon

      drum in the shop area. Inmates were not supposed to remove Naptha from the

      shop area, but they often did so surreptitiously in bottles without detection by

      prison guards and stored the fluid in lighters.


[5]   Over the course of one or two weeks, Stucker and several associates smuggled

      about four gallons of Naptha out of the shop area and transported it to

      McDonald’s cell. There, the Naptha was transferred to a bucket McDonald

      used for the fish tanks he was allowed to keep in his cell. Stucker and the leader

      of the Aryan Brotherhood gang threatened to kill McDonald as a “race traitor”

      if he did not cooperate in the plan to light Hodge on fire. Id. at 430.




      1
          McDonald was incarcerated at the time for arson.


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[6]   On October 19, 1983, Stucker directed McDonald to take the bucket of Naptha

      up to Hodge’s cell at 9:00 p.m., after Hodge had been locked in for the night.

      McDonald did so as Stucker followed behind him. Stucker was carrying with

      him a cigarette lighter and a “wick” that he had fashioned out of toilet paper

      soaked in Naptha. Id. at 436. When Stucker and McDonald neared Hodge’s

      cell, they saw another inmate, Don Allen, standing outside the cell. Allen, who

      was the leader of a rival gang to the Gangster Disciples, was having an

      argument with Hodge. After seeing Allen, Stucker told McDonald to “hold

      on.” Id. at 437. Stucker and McDonald waited until Allen started to walk

      away from Hodge’s cell in the opposite direction, then approached Hodge.


[7]   McDonald put the bucket of Naptha down outside Hodge’s cell and proceeded

      to walk away in the direction Allen was walking. After McDonald did so,

      Allen turned around, passed McDonald, and walked back towards Hodge’s

      cell. McDonald did not turn around to see what happened next. However,

      within seconds of putting down the bucket, McDonald heard a “whoosh”

      sound and Hodge yelling, “These n*****s are burning me up.” Id. at 440.

      McDonald then looked back and saw intense, massive flames coming from

      Hodge’s cell. Hodge could not escape his cell, and he burned to death.


[8]   Prison officials investigated Allen, McDonald, and Stucker for Hodge’s death.

      It appears that, as a result of this investigation, Allen and Stucker both were

      implicated in the incident and both received three years of disciplinary




      Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 4 of 15
      segregation within the Prison.2 However, because of inconsistencies in witness

      testimony, the State did not attempt to prosecute anyone for Hodge’s death at

      that time.


[9]   In 2007, an Indiana State Police detective received new information regarding

      Hodge’s murder that led him to re-open and re-investigate the case. At some

      point, a confidential informant (“CI”) for the State Police revealed that Stucker

      had confessed to murdering Hodge. Specifically, the CI reported that Stucker

      said “he burned a man alive at Michigan City state prison” by pouring “white

      gas” on him and lighting him on fire with a Zippo lighter. Id. at 679-80.

      Subsequently, the State Police arranged for the CI to have a recorded

      conversation with Stucker. In that conversation, Stucker said that he had

      managed to smuggle out about 3.5 gallons of a “highly flammable” material, by

      putting a little bit at a time in small bottles. Ex. LL, p. 2. Stucker also said he

      “just f***ing dumped it in his f***ing face,” that he “took care of it,” and that

      the person he killed was “[t]he Godfather . . . [t]he top man” of the “GD.” Id.

      at p. 3. Stucker also bragged that investigators had been unable to prove what




      2
        We say “appears” because this information, with respect to Allen, comes from a Prison document in the
      appendix that was not admitted at trial. Although the State has not moved to strike this part of the appendix,
      we remind counsel for Stucker that an appendix may not contain material not presented to the trial court. In
      re Contempt of Wabash Valley Hosp., 827 N.E.2d 50, 56 n.6 (Ind. Ct. App. 2005). As for Stucker, he told an
      informant, “they gave me three years in the hole, did two with good time.” Ex. LL, p. 3.

      Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015            Page 5 of 15
       he did, noting the absence of his fingerprints on a lighter and a bucket that were

       found and that a ski mask that was found was not his.


[10]   In 2013, the State charged Stucker with murder. Stucker presented notice that

       he was going to claim self-defense. At trial, McDonald testified at length

       against Stucker. The State also introduced, over objection, several photographs

       depicting Hodge’s charred corpse. The jury convicted Stucker as charged. The

       trial court sentenced Stucker to a term of forty-five years, which represented a

       five-year enhancement over the presumptive sentence for murder that existed in

       1983. Stucker now appeals.


                                                   Analysis
                                        I. Admission of Photographs

[11]   Stucker first contends the trial court erred in permitting the State to introduce

       gruesome photographs of Hodge’s corpse. He argues that there was no real

       dispute about Hodge’s identity or the cause of his death and also notes that he

       offered to stipulate as to the cause of death. Thus, Stucker claims it was

       unnecessary to show these photographs to the jury.


[12]   We review a trial court’s ruling on the admissibility of evidence only for an

       abuse of discretion. Halliburton v. State, 1 N.E.3d 670, 675 (Ind. 2013). “‘An

       abuse of discretion occurs when the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances before it.’” Id. (quoting Turner v.

       State, 953 N.E.2d 1039, 1045 (Ind. 2011)). Even if they are gory and revolting,

       photographs depicting a crime scene and a homicide victim’s body are

       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 6 of 15
       admissible so long as they are relevant and competent aids to the jury. Id. at

       676. Although gruesome photographs have the potential to inflame the

       passions of a jury, the introduction of such photographs is permissible “‘as long

       as they are relevant to some material issue or show scenes that a witness could

       describe orally.’” Id. (quoting Amburgey v. State, 696 N.E.2d 44, 45 (Ind. 1998)).

       As our supreme court has observed, proving a criminal case “cannot be done

       sometimes without presenting disagreeable evidence. Revolting crimes generate

       revolting evidence.” Perigo v. State, 541 N.E.2d 936, 939-40 (Ind. 1989).


[13]   It also is well-settled in Indiana that a murder defendant’s offer to stipulate to a

       victim’s cause of death does not prevent the State from introducing gory

       photographs of the victim. See Halliburton, 1 N.E.3d at 677; Butler v. State, 647

       N.E.2d 631, 634 (Ind. 1995); Perigo, 541 N.E.2d 936 at 940. “A party may

       refuse to stipulate to any facts. An offer to stipulate does not affect the trial

       court’s consideration of the admissibility of evidence.” Perigo, 541 N.E.2d at

       940.

               “In a homicide case, the identity of the alleged victim and the
               assailant, the injury to the alleged victim and its source, the death of
               the alleged victim and its cause, and the physical surroundings in
               which the injury and death occurred, would all be facts of consequence
               in the determination of guilt of the accused.”


       Halliburton, 1 N.E.3d at 677 (quoting Butler, 647 N.E.2d at 634).


[14]   Here, the State was not limited in its presentation of evidence simply because

       Stucker offered to stipulate to the cause and manner of Hodge’s death. The


       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 7 of 15
       manner in which Hodge died was relevant to the case, as were his surroundings

       at the time of death, and so pictures depicting those circumstances were

       admissible. Certainly, pictures of a burned corpse are unpleasant to look at, but

       this was a heinous crime. There is no claim here that Hodge’s body was

       manipulated by a pathologist or medical examiner, which may affect

       admissibility of a gruesome photograph. See id. Moreover, the manner in

       which Hodge died was particularly relevant here, given Stucker’s claim of self-

       defense. The proportionality of force used in response to a threat is highly

       relevant in evaluating a self-defense claim. See McKinney v. State, 873 N.E.2d

       630, 643 (Ind. Ct. App. 2007), trans. denied. Allowing the jurors to actually see

       Hodge’s burned body was relevant in assessing whether Stucker acted in self-

       defense. We see no abuse of discretion in the trial court’s admission of these

       photographs.


                                      II. Sufficiency of the Evidence

[15]   Next, Stucker argues there is insufficient evidence to support his conviction.

       When reviewing a challenge to the sufficiency of the evidence, we neither

       reweigh the evidence nor assess the credibility of witnesses. Bailey v. State, 979

       N.E.2d 133, 135 (Ind. 2012). We view the evidence—even if conflicting—and

       all reasonable inferences drawn from it in a light most favorable to the

       conviction and affirm if there is substantial evidence of probative value

       supporting each element of the crime from which a reasonable trier of fact

       could have found the defendant guilty beyond a reasonable doubt. Id.



       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 8 of 15
                                                   A. Identity

[16]   Stucker presents a number of claims as to why there is insufficient evidence to

       identify him as Hodge’s killer. He challenges McDonald’s veracity, noting that

       some prison witnesses apparently identified him as the person who actually

       threw the Naptha on Hodge and suggesting McDonald downplayed his

       involvement in the murder. He also contends Allen was the person actually

       responsible for Hodge’s death, noting his animosity towards Hodge. He claims

       the lax security and violent nature of the Prison at the time of Hodge’s death

       leaves open the possibility that any number of inmates could have murdered

       him. Finally, he notes the lack of any forensic evidence tying Stucker to the

       crime, such as fingerprint or DNA evidence.


[17]   These arguments are clear requests for us to reweigh the evidence or judge

       witness credibility, which we cannot and will not do. McDonald testified at

       length about Stucker’s plan to burn Hodge alive because he did not want to pay

       a drug debt to Hodge. It was exclusively within the jury’s province to

       determine McDonald’s credibility. McDonald testified that he did not actually

       see Stucker throw the Naptha on Hodge or light him on fire, and Stucker

       suggests that this leaves open the possibility that Allen did so instead.

       Regardless, even if Allen was the one who actually ignited the fire, such action

       was entirely in keeping with Stucker’s plan and his carrying out of that plan by

       gathering Naptha, making a wick, and taking the Naptha, wick, and a lighter to

       Hodge’s cell when Hodge was locked in it. As for the lack of forensic evidence

       directly tying Stucker to the crime scene, “[i]n reviewing sufficiency claims, we

       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 9 of 15
       look at what evidence was presented to the jury, not at what evidence was not

       presented.” Meehan v. State, 7 N.E.3d 255, 259 (Ind. 2014).


[18]   Most importantly, however, Stucker himself confessed to the CI that he killed

       Hodge by lighting him on fire. In fact, judging by the recorded conversation

       between Stucker and the CI, it might be more accurate to say that Stucker

       bragged about burning Hodge alive. Statements made by an accused to a third

       party that confess to or clearly imply the accused’s guilt are direct evidence of

       guilt. Thompson v. State, 728 N.E.2d 155, 158-59 (Ind. 2000). In both his

       opening brief and his reply brief, Stucker wholly fails to mention his statements

       to the CI. Given those statements and McDonald’s testimony, there clearly is

       sufficient evidence to identify Stucker as Hodge’s murderer.


                                                B. Self-Defense

[19]   Stucker also contends that, even if he did kill Hodge, he did so in self-defense.

       In order to prevail upon a self-defense claim when deadly force is used, a

       defendant must show that he: “(1) was in a place where he had a right to be; (2)

       did not provoke, instigate, or participate willingly in the violence; and (3) had a

       reasonable fear of death or great bodily harm.” Wilson v. State, 770 N.E.2d 799,




       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 10 of 15
       800 (Ind. 2002); see also Ind. Code § 35-41-3-2.3 Proof of a “reasonable” fear of

       death or great bodily harm under the self-defense statute requires both a

       subjective belief by the defendant that deadly force was necessary to prevent

       serious bodily injury or death and that such belief was objectively reasonable

       under the circumstances. Washington v. State, 997 N.E.2d 342, 349 (Ind. 2013).

       If a defendant claims self-defense and there is some support for it in the

       evidence, the State has the burden of negating at least one of these elements.

       Wilson, 770 N.E.2d at 800. If a defendant is convicted despite claiming self-

       defense, we will reverse only if no reasonable person could say that the State

       negated self-defense beyond a reasonable doubt. Id. at 800-01. In reviewing

       rejection of a self-defense claim, our standard of review is the same as for any

       sufficiency claim: we will not reweigh the evidence or judge witness credibility.

       Id. at 801.


[20]   Stucker notes the evidence indicating that in 1983, the Prison was an ultra-

       violent, anarchic, prisoner-run facility. Indeed, McDonald testified that he was

       more frightened being incarcerated at the Prison at that time than he was




       3
         The language of the self-defense statute was the same in relevant aspects at the time of Hodge’s murder as it
       is now. See Hinkle v. State, 471 N.E.2d 1088, 1089 (Ind. 1984).



       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015           Page 11 of 15
       serving as a soldier during the Vietnam War. Based on this evidence, Stucker

       claims he acted reasonably in pre-emptively killing Hodge in order to prevent

       his own serious bodily injury or death that supposedly was sure to follow after

       Hodge had slapped him in the face.


[21]   Essentially, what Stucker is asking us to do is place a judicial stamp of approval

       upon so-called prison “justice” and vigilantism. We will not do so. There is no

       evidence that when Stucker lit Hodge on fire that he was, at that moment, in

       the midst of a violent confrontation with Hodge. We would not deny that

       prisoners may have a right to defend themselves if they find themselves in the

       middle of a fight with another inmate. Here, however, Stucker planned

       Hodge’s murder in detail and went to great lengths over a period of time to

       carry it out. And, that plan was precipitated by Stucker’s refusal to pay a debt

       owed to Hodge for both parties’ engagement in illegal activity. In short, even if

       Stucker subjectively believed that he was in imminent danger of death or

       serious bodily injury and, thus, had to kill Hodge to avoid such danger, we

       refuse to say that such belief was objectively reasonable or that the jury was

       required to find such belief objectively reasonable. There is sufficient evidence

       in the record to rebut Stucker’s self-defense claim.


                                                  III. Sentence

[22]   Stucker’s final argument is that his forty-five-year sentence is inappropriate

       under Indiana Appellate Rule 7(B) in light of his character and the nature of the

       offense. In 1983, the presumptive sentence for murder was forty years, with a

       minimum sentence of thirty years and a maximum sentence of sixty years. See
       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 12 of 15
       Mullens v. State, 456 N.E.2d 411, 413 (Ind. 1983) (citing I.C. § 35-50-2-3

       (1979)).4 Thus, Stucker received a slightly-enhanced sentence, one that

       currently would represent the minimum possible term for murder. See I.C. § 35-

       50-2-3(a) (2014).


[23]   Although Rule 7(B) does not require us to be “extremely” deferential to a trial

       court’s sentencing decision, we still must give due consideration to that

       decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We

       also understand and recognize the unique perspective a trial court brings to its

       sentencing decisions. Id. “Additionally, a defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.” Id.


[24]   The principal role of Rule 7(B) review “should be to attempt to leaven the

       outliers, and identify some guiding principles for trial courts and those charged

       with improvement of the sentencing statutes, but not to achieve a perceived

       ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.

       2008). We “should focus on the forest—the aggregate sentence—rather than

       the trees—consecutive or concurrent, number of counts, or length of the




       4
         Although the statute in effect at the time of the crime governs Stucker’s sentencing range, we apply the
       inappropriate appellate standard of review of the sentence even though that standard was not enacted until
       2003. See Williams v. State, 782 N.E.2d 1039, 1050 n.4 (Ind. Ct. App. 2003).

       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015         Page 13 of 15
       sentence on any individual count.” Id. Whether a sentence is inappropriate

       ultimately turns on the culpability of the defendant, the severity of the crime,

       the damage done to others, and myriad other factors that come to light in a

       given case. Id. at 1224. When reviewing the appropriateness of a sentence

       under Rule 7(B), we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing the defendant, including whether a

       portion of the sentence was suspended. Davidson v. State, 926 N.E.2d 1023,

       1025 (Ind. 2010).


[25]   Regarding the nature of the offense, Stucker instigated and carried out an

       extensive plan to burn Hodge alive while he was trapped in his prison cell in

       order to avoid paying a drug debt. Being burned alive is undeniably a

       horrendous manner of death. McDonald remembered hearing Hodge’s “God

       awful” and “blood curdling” screams. Tr. p. 471. This crime was egregious.


[26]   As for Stucker’s character, there is nothing positive to relate. He was serving a

       term for two counts of Class B felony armed robbery when he murdered Hodge.

       After serving that sentence, Stucker accumulated additional felony convictions

       for Class B felony burglary, Class C felony escape, Class D felony residential

       entry, Class D felony auto theft, and Class D felony theft. Stucker also has two

       misdemeanor convictions for possession of marijuana and one for domestic

       battery. The presentence report also relates two probation violations. Finally,

       the recorded conversation with the CI reveals a complete lack of remorse on

       Stucker’s part for Hodge’s death; if anything, Stucker appears to be proud of



       Court of Appeals of Indiana | Memorandum Decision 46A05-1403-CR-117 | February 9, 2015   Page 14 of 15
       that act. In light of Stucker’s poor character and the heinousness of Hodge’s

       murder, we cannot say that his sentence of forty-five years is inappropriate.


                                                 Conclusion
[27]   The trial court did not abuse its discretion in admitting photographs of Hodge’s

       corpse. There is sufficient evidence to support Stucker’s identification as

       Hodge’s killer and to reject his self-defense claim. Finally, Stucker’s forty-five-

       year sentence is not inappropriate. We affirm.


[28]   Affirmed.


       May, J., and Pyle, J., concur.




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