MEMORANDUM DECISION
                                                                       FILED
Pursuant to Ind. Appellate Rule 65(D),                            Jul 22 2016, 9:31 am
this Memorandum Decision shall not be                                  CLERK
regarded as precedent or cited before any                          Indiana Supreme Court
                                                                      Court of Appeals
court except for the purpose of establishing                            and Tax Court


the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Ellen M. O’Connor                                        Gregory F. Zoeller
Marion County Public Defender                            Attorney General of Indiana
Indianapolis, Indiana
                                                         Monika Prekopa Talbot
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Morice Ervin,                                            July 22, 2016
Appellant-Defendant,                                     Court of Appeals Cause No.
                                                         49A02-1510-CR-1547
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Kurt Eisgruber,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         49G01-1406-MR-31398



Barnes, Judge.



Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016       Page 1 of 7
                                             Case Summary
[1]   Morice Ervin appeals his convictions for murder and Class A felony rape. We

      affirm.


                                                      Issue
[2]   The sole issue is whether the trial court abused its discretion by admitting

      gruesome photographs of the crime scene and the victim’s body.


                                                     Facts
[3]   On March 27, 2014, Shannon Kleeman (“Shannon”) spent the night at her step-

      mother Jenny Kleeman’s (“Jenny”) Marion County house to care for Jenny’s

      pets while Jenny was hospitalized. Jenny called to check on Shannon that

      evening, and Shannon told Jenny that Morice Ervin had stopped by. Ervin and

      his wife Mary Ervin lived next door to Jenny, and Jenny socialized with them

      regularly. Jenny owned her late husband’s Mossberg twelve-gauge shotgun and

      previously asked Ervin to load it for her so it was available for her protection.

      Ervin thus knew where Jenny kept the gun. Ervin was also familiar with

      Jenny’s dogs. Ervin had met Shannon, who visited Jenny daily, and Jenny had

      told Ervin that Shannon was “special, that she didn’t have the mentality of the

      21-year-old that she looked like.” Tr. p. 165.


[4]   On March 28, 2014, Crystal Combs, the sister with whom Shannon lived, went

      to Jenny’s house to check on Shannon because she had been unable to reach

      her by telephone. When Combs arrived, the front door to Jenny’s house was


      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016   Page 2 of 7
      unlocked, and Combs discovered Shannon’s half-naked body lying in a pool of

      blood in Jenny’s basement.


[5]   Shannon had been shot in the head at close range with a twelve-gauge shotgun

      resulting in massive trauma. In order to better assess the injuries to Shannon’s

      face and head, the forensic pathologist used surgical yarn “and sewed her face

      back together to better approximate and document the injuries . . . .” Id. at 244.

      He observed “an area of shotgun injury to the right and left eyes, there’s

      fractured teeth, there’s some birdshot, entry shotgun injury [] to the left cheek,

      her back of her skull was markedly fragmented into multiple skull fractures.”

      Id. She had bird shot pellets embedded in her right hand. Shannon’s right

      thumb was almost completely amputated by a gunshot wound. One of her

      breasts was bruised. There were scrapes and bruises on her neck that indicated

      her neck was compressed, but the forensic pathologist was unable to determine

      if she was strangled because the trauma to Shannon’s eyes was so severe he

      could not assess them for petechial hemorrhages. Shannon’s shirt was torn, and

      her pants and underwear had been removed. She suffered tears to her vagina

      and anus that the forensic pathologist testified would have been “extremely

      painful[.]” Id. at 254.


[6]   Swabs taken from one of Shannon’s breasts and under the fingernails on her left

      hand revealed the presence of Ervin’s DNA. Ervin’s DNA was also found on

      swabs from Shannon’s vagina. Jenny’s shotgun was missing from her home at

      the time Shannon’s body was discovered; it was never found.



      Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016   Page 3 of 7
[7]    The State charged Ervin with murder, Class A felony rape, and with an

       habitual offender enhancement. A jury found him guilty as charged, and the

       trial court sentenced Ervin to an aggregate sentence of 135 years in the

       Department of Correction. Ervin appeals his murder and rape convictions.


                                                        Analysis
[8]    During the trial, the trial court admitted into evidence several photographs—

       Exhibits 27, 28, 31, 147, and 1511—to which Ervin objected. Ervin contends

       the trial court abused its discretion by admitting these photographs of the crime

       scene and Shannon’s body because they are gory, “served to inflame the

       passions of the jury,” and were more prejudicial than probative. Appellant’s Br.

       p. 10.


[9]    The standard of review with regard to the admission of evidence is well-settled.

       We review a trial court’s ruling on the admissibility of evidence for an abuse of

       discretion. Moore v. State, 49 N.E.3d 1095, 1101 (Ind. Ct. App. 2016). We

       reverse such a decision only when the admission of evidence is clearly against

       the logic and effect of the facts and circumstances before the court and the error

       affects a party’s substantial rights. Id.


[10]   “Generally, photographs depicting the crime scene and victim’s body are

       admissible as long as they are relevant and competent aids to the jury.”



       1
        Appellant’s Brief identifies one of the objectionable exhibits as 152. This appears to be a typographical
       error. It is clear in the record that Appellant objected to Exhibit 151, the Appellee’s Brief references Exhibit
       151, and, in a different portion of his Appellant’s Brief, Ervin cites to Exhibit 151.

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016                  Page 4 of 7
       Halliburton v. State, 1 N.E.3d 670, 676 (Ind. 2013). “[E]ven gory and revolting

       photographs may be admissible as long as they are relevant to some material

       issue or show scenes that a witness could describe orally . . . although a

       photograph may arouse the passions of the jurors, it is admissible unless its

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

       Id. (quotation omitted) (citation omitted).


[11]   “Evidence is relevant if: (a) it has any tendency to make a fact more or less

       probable than it would be without the evidence; and (b) the fact is of

       consequence in determining the action.” Indiana Evidence Rule 401. A trial

       court may, however, “exclude relevant evidence if its probative value is

       substantially outweighed by a danger of one or more of the following: unfair

       prejudice, confusing the issues, misleading the jury, undue delay, or needlessly

       presenting cumulative evidence.” Evid. R. 403.


[12]   There can be no dispute the photographs, which depict Shannon’s half-naked

       body and the extensive injuries to her face and skull at the crime scene and in

       the forensic pathologist’s examination room, are “gory and revolting,” and they

       may well have aroused the passions of the jurors. Halliburton, 1 N.E.3d at 676.

       We need not, however, analyze the five photographs to determine whether the

       trial court should have excluded any of them pursuant to Evidence Rule 403.

       “‘The improper admission [of evidence] is harmless error if the conviction is

       supported by substantial independent evidence of guilt satisfying the reviewing

       court there is no substantial likelihood the challenged evidence contributed to

       the conviction.’” Evans v. State, 30 N.E.3d 769, 776 (Ind. Ct. App. 2015)

       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016   Page 5 of 7
       (alteration in original) (quoting Turner v. State, 953 N.E.2d 1039, 1059 (Ind.

       2011)), trans. denied.


[13]   The statute in effect at the time these crimes were committed defined Class A

       felony rape as knowingly or intentionally having sexual intercourse with

       another person by using or threatening the use of deadly force, while armed

       with a deadly weapon, or resulting in serious bodily injury to a person other

       than the defendant. Ind. Code § 35-42-4-1. Indiana Code Section 35-42-1-1

       defines murder as knowingly or intentionally killing another human being.


[14]   The record reveals Shannon was familiar with Ervin, her step-mother’s

       neighbor and friend. Ervin knew Shannon was alone at Jenny’s house.

       Investigators did not observe signs of forced entry into Jenny’s house. Ervin

       knew Jenny owned a twelve-gauge shotgun and where she kept it. Ervin knew

       the gun was loaded; he previously loaded it for Jenny. Shannon was shot and

       killed by a twelve-gauge shotgun. Jenny’s shotgun was missing after Shannon’s

       murder. Ervin left his house the evening Shannon was murdered. Shannon’s

       pants and underwear were removed, and she suffered “extremely painful” tears

       to her vagina and anus. Tr. p. 254. Ervin’s DNA was found on Shannon’s

       breast, under her fingernails, and in her vagina.


[15]   Even absent the five photographs at issue, there was substantial independent

       evidence from which the jury could conclude Ervin raped and murdered

       Shannon. Therefore, errors, if any, in the admission of the photographs were

       harmless. See Evans, 30 N.E.3d at 776.


       Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016   Page 6 of 7
                                          Conclusion
We conclude that any abuse of discretion in the admission of evidence was

harmless. We affirm.


Affirmed.


Vaidik, C.J., and Mathias, J., concur.




Court of Appeals of Indiana | Memorandum Decision 49A02-1510-CR-1547 | July 22, 2016   Page 7 of 7
