MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                      FILED
regarded as precedent or cited before any                             Nov 30 2017, 9:04 am

court except for the purpose of establishing                               CLERK
the defense of res judicata, collateral                                Indiana Supreme Court
                                                                          Court of Appeals
                                                                            and Tax Court
estoppel, or the law of the case.


ATTORNEYS FOR APPELLANT                                 ATTORNEYS FOR APPELLEE
Ruth Johnson                                            Curtis T. Hill, Jr.
Marion County Public Defender Agency                    Attorney General of Indiana
Appellate Division
                                                        Monika Prekopa Talbot
Indianapolis, Indiana                                   Supervising Deputy Attorney
Lisa M. Johnson                                         General
Brownsburg, Indiana                                     Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Dantez Pitts,                                           November 30, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        49A05-1706-CR-1294
        v.                                              Appeal from the
                                                        Marion Superior Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff.                                     Grant W. Hawkins, Judge
                                                        Trial Court Cause No.
                                                        49G05-1512-MR-43961



Kirsch, Judge.




Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017       Page 1 of 15
[1]   Dantez Pitts (“Pitts”) was convicted after a jury trial of murder, 1 a felony, and

      was sentenced to sixty years executed. He appeals his conviction and raises the

      following restated issues:


                 I.       Whether the trial court committed fundamental error
                          when it instructed the jury on voluntary manslaughter; and


                 II.      Whether the trial court abused its discretion when it
                          refused to give a jury instruction on reckless homicide.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In November 2015, Pitts was in an on and off again relationship with Carla

      Harris (“Harris”), who stayed at the Motor 8 Inn in Indianapolis, Indiana.

      When Pitts and Harris were together, Pitts stayed at the Motor 8 Inn with

      Harris. On the night of November 21-22, 2015, the relationship between Pitts

      and Harris was off again, and Harris spent the night with another ex-boyfriend

      in his semi-truck, which was parked near the Motor 8 Inn. Harris stayed with

      the ex-boyfriend until the evening of November 22. Before meeting up with her

      ex-boyfriend, Harris had used both heroin and cocaine, and when she left the

      truck on the evening of November 22, she was experiencing symptoms of

      withdrawal and felt ill. Harris then went to the Motor 8 Inn to get more heroin

      from her friend, Poochie. However, instead of Poochie, Harris encountered



      1
          See Ind. Code § 35-42-1-1.


      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 2 of 15
      Pitts, who told Harris he had a gun and made a threat against her ex-boyfriend.

      Harris did not see the gun and did not believe that Pitts had one.


[4]   Harris then left and went back to her ex-boyfriend’s semi-truck. Once there, she

      got into an argument with her ex-boyfriend and decided to call her friend, Jim

      Bakemeier (“Bakemeier”). Harris asked Bakemeier to pick her up, and he told

      her he would be right there. Bakemeier arrived at the Motor 8 Inn, but before

      Harris left, she still wanted to purchase some drugs, so Bakemeier drove to a

      different area of the parking lot.


[5]   While Harris was waiting in Bakemeier’s truck for the drug dealer to come out,

      she saw Pitts approach with a bottle of Gatorade in his hand. Pitts appeared to

      be angry, and when he walked around to the passenger side of Bakemeier’s

      truck, where Harris was seated, Harris told him to leave. Pitts then walked over

      to a van parked nearby, which was used by the hotel residents to consume drugs

      inside, and then returned to Bakemeier’s truck. Pitts stood in front of the truck

      and began pounding on the hood. Pitts called Harris a “trash ass bitch” and

      poured his Gatorade all over the hood of the truck. Tr. Vol. II at 180. Harris

      told Bakemeier to drive away, but Bakemeier refused, stating, “I’m not going to

      let him punk me.” Id. at 204. Bakemeier then took his foot off of the brake and

      the truck rolled forward a little bit, but did not hit Pitts. Pitts then came around

      to the driver’s side of the truck, and Bakemeier opened the truck door, which

      knocked Pitts backward. Pitts then pulled out a handgun and fired four shots

      into the truck, hitting Bakemeier.



      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 3 of 15
[6]   Harris ran out of the truck and started to flee. However, when she saw Pitts

      running away, she went back to Bakemeier and called 911. She then ran to her

      ex-boyfriend’s semi-truck and called 911 again.2 Harris identified Pitts as the

      shooter in both calls, gave a detailed description of his clothing, and told the

      dispatcher which rooms that Pitts could be staying in at the Motor 8 Inn.

      Harris then went back to the Motor 8 Inn, purchased heroin, and used it.

      When she saw the emergency vehicles approaching, Harris left the scene.


[7]   Indianapolis Metropolitan Police Department officers arrived at the Motor 8

      Inn at approximately 8:22 p.m. When they arrived, Bakemeier was

      unconscious and bleeding profusely from his face. Bakemeier was located near

      an older model Ford pickup truck, that was registered to Bakemeier, with its

      engine running, and there was a large amount of blood around the driver’s side.

      There were bullet marks to the windshield and the driver’s side door. In critical

      condition, Bakemeier was taken to Eskenazi Hospital where he died. The

      cause of death was a gunshot wound to the head.


[8]   The Motor 8 Inn surveillance system captured the shooting and the events

      leading up to it. The police found a Gatorade bottle at the scene containing

      Pitts’s DNA and fingerprint. Tr. Vol. III at 129, 145. The police located Harris

      the day after the shooting when she returned to the hotel. Initially, Harris lied

      about her identity, but later told the officers who she was, gave a statement, and



      2
       When Harris called 911, she used the name “Denise Avant” because Harris had a warrant for her arrest and
      did not want to be arrested. Tr. Vol. II at 184.

      Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017     Page 4 of 15
       identified Pitts from a photo lineup. The police were not able to locate Pitts in

       Indianapolis. On December 15, 2015, a warrant was issued for Pitts’s arrest,

       and on January 5, 2016, the United States Marshal’s Service located Pitts in

       Flint, Michigan.


[9]    The State charged Pitts with one count of murder. A jury trial occurred on

       February 27-28, 2017. After the end of the first day of trial, the parties

       discussed the final jury instructions. The trial court said that it included

       instructions on voluntary manslaughter and sudden heat and asked Pitts if he

       wanted any other instructions, to which Pitts responded, “potentially self-

       defense.” Tr. Vol. II at 220. At the close of the evidence, the State argued

       against giving the voluntary manslaughter instruction, contending that no

       sudden heat existed because Pitts already appeared agitated when he

       approached the truck and was the aggressor during the entire incident. Tr. Vol.

       III at 148-49. Pitts argued in favor of the instruction, stating that he was startled

       by the truck door opening, which triggered the sudden heat. Id. at 151. After

       this argument, the trial court decided to give an instruction on voluntary

       manslaughter and asked the parties if they objected to the language of the

       instruction. Pitts did not raise an objection and informed the trial court that he

       was not going to ask for a self-defense instruction, but was, instead, going to ask

       for a reckless homicide instruction. Pitts tendered a proposed reckless homicide

       instruction, which was denied by the trial court.


[10]   During his closing argument, Pitts admitted that he was the individual who

       fired the gun at the victim and asked the jury to find him guilty of voluntary

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 5 of 15
       manslaughter. Id. at 178, 181. The trial court gave final instructions on

       voluntary manslaughter and sudden heat. During deliberations, the jurors sent

       a question to the trial court, asking if they could have a more thorough

       definition of sudden heat, and after discussion, the trial court decided not to

       give an additional instruction, but instead, allowed each party five minutes to

       explain sudden heat to the jurors. The parties then gave additional argument

       on sudden heat. After further deliberations, the jury returned a verdict finding

       Pitts guilty of murder. Pitts now appeals.


                                      Discussion and Decision

                          I.      Voluntary Manslaughter Instruction
[11]   Pitts argues that the trial court erred in instructing the jury on voluntary

       manslaughter. The manner of instructing a jury is left to the sound discretion of

       the trial court. Evans v. State, 81 N.E.3d 634, 637 (Ind. Ct. App. 2017). When

       reviewing the jury instructions, we consider them as a whole and in reference to

       each other. Id. We will not reverse the ruling of the trial court unless the jury

       instructions, taken as a whole, misstate the law or mislead the jury. Id. Before

       a defendant is entitled to a reversal, he must affirmatively show that the

       erroneous instruction prejudiced his substantial rights. Id.


[12]   Pitts failed to object to the trial court’s jury instruction relating to the lesser-

       included offense of voluntary manslaughter. A defendant who fails to object to

       a jury instruction at trial waives any challenge to that instruction on appeal,

       unless giving the instruction was fundamental error. Pattison v. State, 54 N.E.3d


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 6 of 15
       361, 365 (Ind. 2016). To avoid waiver, Pitts argues that the presumed

       instructional errors constitute fundamental error. “Fundamental error is error

       that represents a blatant violation of basic principles rendering the trial unfair to

       the defendant, thereby depriving the defendant of fundamental due process.”

       Evans, 81 N.E.3d at 637. The error must be so prejudicial to the rights of the

       defendant as to make a fair trial impossible. Winkleman v. State, 22 N.E.3d 844,

       849 (Ind. Ct. App. 2014), trans. denied. “In evaluating the issue of fundamental

       error, we must look at the alleged misconduct in the context of all that

       happened and all relevant information given to the jury—including evidence

       admitted at trial, closing argument, and jury instructions—to determine

       whether the misconduct had such an undeniable and substantial effect on the

       jury’s decision that a fair trial was impossible.” Id. The element of harm is not

       shown by the fact that a defendant was ultimately convicted. Evans, 81 N.E.3d

       at 273-74.


[13]   Pitts contends that the trial court committed fundamental error when it gave

       Final Instruction 21A (“Instruction 21A”) to the jury, which discussed lesser-

       included offenses, and, in particular, the offense of voluntary manslaughter as a

       lesser-included offense of murder. Pitts asserts that Instruction 21A was

       confusing and misleading because it “indicated that the jury did not have to

       consider voluntary manslaughter if they found all the elements of murder . . .

       left the jury with the impression that they could only consider voluntary

       manslaughter if they found Pitts not guilty of murder.” Appellant’s Br. at 14. He

       further argues that the error was not cured by other instructions given, and he


       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 7 of 15
       was deprived of a fair trial when the jury was incorrectly instructed on

       voluntary manslaughter.


[14]   Indiana Code section 35-42-1-3 defines voluntary manslaughter as follows:


               (a) A person who knowingly or intentionally:


               (1) kills another human being;


               ...


               while acting under sudden heat commits voluntary
               manslaughter, a Level 2 felony.


               (b) The existence of sudden heat is a mitigating factor that
               reduces what otherwise would be murder under section 1(1) of
               this chapter to voluntary manslaughter.


       Thus, by statute, sudden heat is a mitigating factor to murder, not an element of

       voluntary manslaughter. Watts v. State, 885 N.E.2d 1228, 1231 (Ind. 2008). If a

       conviction for a crime requires proof of a list of elements, conviction for a

       lesser-included offense of that crime usually requires proof of some, but not all,

       of the elements of the first crime. Coy v. State, 999 N.E.2d 937, 943 (Ind. Ct.

       App. 2013).


[15]   Voluntary manslaughter is different. Instead of requiring the State to prove

       fewer than all the elements of murder, voluntary manslaughter requires the

       State to prove all of the elements of murder and to disprove the existence of

       sudden heat when there is any appreciable evidence of such in the record.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 8 of 15
       Roberson v. State, 982 N.E.2d 452, 456 (Ind. Ct. App. 2013). A conviction for

       voluntary manslaughter constitutes an acquittal of murder. Id. “The absence of

       sudden heat is not an element of murder, and a jury ordinarily does not have to

       be instructed that the State has the burden of disproving the existence of sudden

       heat in order to gain a murder conviction.” Id.


[16]   In the present case, the trial court’s Instruction 21A stated:


               On occasion, either because of the nature of the crime which is
               charged or because of the evidence that is presented during trial,
               the law permits the Jury to consider whether the Defendant is
               guilty of certain charges that are not explicitly mentioned in the
               Information. These charges are called included offenses. They are
               called included offenses because they are offenses which
               necessarily must be committed as part of the charged offense
               because the evidence presented during trial can lead to a finding
               that the crime which was committed was as serious, or less
               serious, than the crime charged.


               If you find the Defendant not guilty of the offense charged in
               Count I, then you may consider whether the Defendant is guilty
               of the included offense.


               All of the instructions that I give you are to be applied to your
               deliberations whether you are considering a charged offense or
               an included offense. In other words, you may not convict the
               Defendant of any crime unless the State has proven the crime’s
               applicable elements beyond a reasonable doubt.


               You must not look upon the included offense(s) as an
               opportunity to compromise differences among yourselves.



       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017   Page 9 of 15
       Appellant’s App. Vol. II at 143. This instruction includes the language: “If you

       find the Defendant not guilty of the offense charged in Count I, then you may

       consider whether the Defendant is guilty of the included offense.” Id. This

       instruction, which is appropriate for ordinary lesser-included offenses, is

       inappropriate for voluntary manslaughter.


[17]   Here, however, the trial court also gave Instruction 21B, which stated:


               The crime of Murder, a felony with which the Defendant is
               charged in Count 1, is defined as follows:


               A person who knowingly or intentionally kills another human
               being commits Murder, a felony.


               Included in the charge of Murder in this case is the crime of
               Voluntary Manslaughter that is defined as follows:


               A person who knowingly or intentionally kills another human
               being while acting under sudden heat commits Voluntary
               Manslaughter, a Level 2 felony.


               Sudden heat is a mitigating factor that reduces what otherwise
               would be Murder to Voluntary Manslaughter. The State has the
               burden of proving beyond a reasonable doubt that the Defendant
               was not acting under sudden heat.


               To convict the Defendant of Murder, the State must prove each
               of the following elements beyond a reasonable doubt:


               1. The Defendant, Dantez Pitts,



       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017 Page 10 of 15
               2. knowingly


               3. killed James Bakemeier, Jr, another human being.


               If the State failed to prove each of these elements beyond a
               reasonable doubt, you must find the Defendant not guilty.


               If the State did prove each of these elements beyond a reasonable
               doubt, but the State failed to prove beyond a reasonable doubt
               that the Defendant was not acting under sudden heat, you may
               find the Defendant guilty of Voluntary Manslaughter, a Level 2
               felony, as covered under Count 1.


               If the State did prove beyond a reasonable doubt that the
               Defendant knowingly killed James Bakemeier, Jr., and the State
               also did prove beyond a reasonable doubt that the Defendant
               acted without sudden heat, you may find the Defendant guilty of
               Murder, a felony, as charged in Count 1.


       Id. at 144-45. The language in this instruction stated the proper procedure the

       jury should follow in analyzing the elements of the crimes of murder and of

       voluntary manslaughter, including any evidence of sudden heat. Therefore, any

       error from Instruction 21A was cured by Instruction 21B.


[18]   Further, in reviewing all relevant information given to the jury, including the

       evidence admitted at trial, closing arguments, and the jury instructions, it is

       clear that the erroneous language in Instruction 21A did not have such an

       undeniable and substantial effect on the jury’s decision that a fair trial was

       impossible. See Winkleman, 22 N.E.3d at 849. During deliberations, the jurors

       sent a question to the trial court asking if they could have a more thorough

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017 Page 11 of 15
       definition of sudden heat, and after a discussion between the parties, the trial

       court decided not to give an additional instruction but instead allowed each

       party five minutes to educate the jury about sudden heat. The parties then

       proceeded to give additional argument to the jury on the concept of sudden heat

       and to explain how to interpret and apply that concept in the context of the

       present case. The jury clearly considered the concept of sudden heat and the

       lesser-included offense of voluntary manslaughter in its deliberations before

       ultimately finding Pitts guilty of murder. We, therefore, conclude that any error

       caused by Instruction 21A was not so prejudicial to Pitts’s rights as to make a

       fair trial impossible. See id. The trial court did not commit fundamental error

       in instructing the jury on voluntary manslaughter.3


                                 II.      Reckless Homicide Instruction
[19]   Pitts contends that the trial court abused its discretion when it refused to give

       the jury an instruction on reckless homicide. In determining whether the trial

       court should have given an instruction for a lesser-included offense of the crime

       charged, this court conducts a three-part test. Isom v. State, 31 N.E.3d 469, 485

       (Ind. 2015), cert. denied, 136 S. Ct. 1161 (2016). The first two parts require the

       trial court to consider whether the lesser-included offense is inherently or

       factually included in the greater offense. Leonard v. State, 80 N.E.3d 878, 885




       3
        We find Pitts’s reliance on Roberson v. State, 982 N.E.2d 452 (Ind. Ct. App. 2013) to be misplaced. In that
       case, which was a post-conviction case where this court found ineffective assistance of counsel for failure to
       point out instructional errors, the jury received not one, but three, erroneous instructions related to sudden
       heat and voluntary manslaughter with no additional curative instructions.

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017 Page 12 of 15
       (Ind. 2017) (citing Isom, 31 N.E.3d at 485). If it is, then the trial court must

       determine if there is a serious evidentiary dispute regarding the element that

       distinguishes the lesser offense from the principal charge. Id. Here, the

       distinguishing element between knowing murder and reckless homicide is

       culpability.


[20]   When considering whether there is a serious evidentiary dispute, the trial court

       examines the evidence presented by both parties regarding the element

       distinguishing the greater offense from the lesser one. Id. (citing Young v. State,

       699 N.E.2d 252, 255 (Ind. 1998)). This examination “involves evaluating the

       ‘weight and credibility of [the] evidence,’ and then determining the ‘seriousness

       of any resulting dispute.’” Id. (quoting Fish v. State, 710 N.E.2d 183, 185 (Ind.

       1999)). We will reverse a trial court’s finding that no serious evidentiary

       dispute existed only if that finding was an abuse of discretion. Id. In reviewing

       a trial court’s finding, we give the trial court considerable deference, view the

       evidence in a light most favorable to the decision, and determine whether the

       trial court’s decision can be justified in light of the evidence and circumstances

       of the case. Id.


[21]   Pitts argues that it was an abuse of discretion for the trial court to refuse to give

       his tendered instruction on reckless homicide as a lesser-included offense of

       murder. He asserts that there was a serious evidentiary dispute regarding the

       distinguishing element between knowing murder and reckless homicide, which

       was the culpability required and whether he acted knowingly or recklessly.

       Pitts contends that the evidence showed that the shooting occurred immediately

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017 Page 13 of 15
       after Bakemeier hit Pitts with the truck door, knocking him backward and that,

       when he fired the gun, he “fired wildly and indiscriminately in the direction of

       the truck.” Appellant’s Br. at 21. He, therefore, claims that the evidence did not

       preclude a reasonable possibility that he acted recklessly, rather than

       knowingly, and he maintains that he was deprived of a fair trial because the

       jury did not have an opportunity to consider if he committed reckless homicide

       rather than murder or voluntary manslaughter.


[22]   Reckless homicide is the reckless killing of another. Ind. Code § 35-42-1-5.

       Murder is the intentional or knowing killing of another. Ind. Code § 35-42-1-1.

       Reckless homicide requires a reckless mens rea, while murder requires a

       knowing or intentional mens rea. Griffin v. State, 963 N.E.2d 685, 691 (Ind. Ct.

       App. 2012). The only difference between the two is the mens rea element, and

       therefore, reckless homicide is an inherently included offense of murder. Id.

       “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

       conduct.” Ind. Code § 35-41-2-2(c). “A person engages in conduct ‘knowingly’

       if, when he engages in the conduct, he is aware of a high probability that he is

       doing so.” Ind. Code § 35-41-2-2(b).


[23]   Pitts relies on Brown v. State, 659 N.E.2d 652 (Ind. Ct. App. 1995), trans. denied,

       for his contention that a reckless homicide instruction should have been given.

       In that case, the defendant and the victim got into an argument inside a parked

       car, and when the defendant stepped out of the car, he pulled the victim out of

       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017 Page 14 of 15
       car, fired a gun twice, and hit the victim in the eye. Id. at 654. Immediately

       after shooting the victim, the defendant ran inside the victim’s mother’s house

       and screamed: “I shot her. I shot her,” before fleeing the scene. Id. The

       defendant later surrendered himself to the police. Id. The jury found Brown

       guilty of voluntary manslaughter, and this court found that the trial court

       committed reversible error, by refusing to instruct the jury on reckless homicide,

       because the evidence did not preclude a reasonable possibility that the

       defendant acted recklessly. Id. at 656.


[24]   We find Brown to be distinguishable from the present case. Here, the evidence

       presented at trial showed that, when Pitts was struck by the driver’s side door of

       the truck, he immediately pulled out a gun and fired four times in the direction

       of the driver, Bakemeier. After shooting Bakemeier four times at close range,

       Pitts fled the scene and was not apprehended until approximately six weeks

       later when he was located in another state. Based on the evidence presented at

       Pitts’s trial, we conclude that no serious evidentiary dispute existed regarding

       Pitts’s culpability, and the evidence did not warrant an instruction on reckless

       homicide. The trial court did not abuse its discretion in refusing to give Pitts’s

       tendered instruction on reckless homicide.


[25]   Affirmed.


[26]   Najam, J., and Brown, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 49A05-1706-CR-1294 | November 30, 2017 Page 15 of 15
