MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                     FILED
regarded as precedent or cited before any                             Nov 01 2017, 6:26 am
court except for the purpose of establishing                              CLERK
the defense of res judicata, collateral                               Indiana Supreme Court
                                                                         Court of Appeals
estoppel, or the law of the case.                                          and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Linda L. Harris                                         Curtis T. Hill, Jr.
Kentland, Indiana                                       Attorney General of Indiana
                                                        Michael Gene Worden
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Kurt Stuhlmacher,                                       November 1, 2017
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        37A03-1704-CR-833
        v.                                              Appeal from the Jasper Superior
                                                        Court
State of Indiana,                                       The Honorable James R. Ahler,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        37D01-1411-F1-913



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017        Page 1 of 11
[1]   Kurt Stuhlmacher appeals his convictions for Level 1 Felony Attempted

      Murder,1 Level 3 Felony Attempted Aggravated Battery,2 two counts of Level 6

      Felony Resisting Law Enforcement,3 three counts of Level 6 Felony Criminal

      Recklessness,4 and Class A Misdemeanor Operating a Vehicle While

      Intoxicated Endangering a Person.5 Stuhlmacher raises the following

      arguments on appeal: (1) the trial court erroneously admitted certain evidence;

      (2) the trial court erroneously instructed the jury on the charge of attempted

      murder; and (3) he received the ineffective assistance of trial counsel. Finding

      no error and that Stuhlmacher did not receive the ineffective assistance of trial

      counsel, we affirm.


                                                    Facts
[2]   In November 2014, Stuhlmacher and Kelly Wood had been married for over

      thirty years.6 Wood was employed, but Stuhlmacher was unemployed because

      of back injuries and disabilities. He was dependent on his wife for most things.


[3]   On November 17, 2014, Wood went to work. Stuhlmacher called her at

      lunchtime and yelled at her and then sent her numerous texts until she left




      1
          Ind. Code § 35-42-1-1.
      2
          I.C. § 35-42-2-1.5.
      3
          Ind. Code § 35-44.1-3-1.
      4
          I.C. § 35-42-2-2.
      5
          Ind. Code § 9-30-5-2.
      6
          They have since divorced.


      Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 2 of 11
      work. After she left work, Stuhlmacher called her again, angry because he had

      been prohibited from “deer camp” and believed it was her fault. Wood told

      him that she was not going to come home unless he agreed to seek substance

      abuse treatment. Stuhlmacher told Wood that if she did not come home, he

      would hunt her down.


[4]   Stuhlmacher eventually agreed to seek substance abuse treatment, so Wood

      drove home. When she got there, Stuhlmacher was highly intoxicated and

      issued multiple conditions for seeking substance abuse treatment; she concluded

      that he had no intention of seeking such treatment. Eventually, Stuhlmacher

      became enraged, and Wood felt unsafe and decided to leave.


[5]   Wood drove away in her Mustang; Stuhlmacher drove after her in his pickup

      truck at a high rate of speed. Wood was afraid and called 911. He chased her

      for several miles at high speeds, ramming her car three times. The third time he

      rammed her car, the Mustang hit a parked car and then crashed into a

      telephone pole. During the chase, Wood believed that Stuhlmacher was trying

      to kill her.


[6]   After Wood called 911, several officers responded to the dispatch, and had

      unsuccessfully attempted to stop Stuhlmacher before he rammed Wood’s car

      into the telephone pole. After that final crash, Stuhlmacher continued driving,

      leading officers on a chase through the streets of Rensselaer until officers were

      able to box in the pickup truck and arrest him.




      Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 3 of 11
[7]   On November 24, 2014, the State charged Stuhlmacher with Level 1 felony

      attempted murder and three counts of Level 6 felony resisting law enforcement.

      The State later added charges of three counts of Level 6 felony criminal

      recklessness, Class A misdemeanor operating a vehicle while intoxicated

      endangering a person, and Level 3 felony aggravated battery. 7 Stuhlmacher’s

      jury trial began on October 25, 2016. Following the trial, the jury found him

      guilty of all charges except for one of the counts of Level 6 felony resisting law

      enforcement. On January 17, 2017, the trial court sentenced Stuhlmacher to an

      aggregate sentence of thirty years imprisonment.


[8]   On February 6, 2017, Stuhlmacher filed a motion to correct error; the trial court

      held a hearing on the motion on March 20, 2017. After denying the motion,

      the trial court engaged in a discussion with Stuhlmacher about the appointment

      of appellate counsel. During that discussion, Stuhlmacher made statements

      regarding an alleged incident in which an unauthorized person entered the jury

      room during deliberations and the judge followed her. The trial court

      vehemently denied that it had occurred. Stuhlmacher now appeals.




      7
       The State also charged Stuhlmacher with Class C misdemeanor operating a vehicle with an ACE of .08 or
      more but later dismissed that charge.

      Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017      Page 4 of 11
                                    Discussion and Decision
                                   I. Admission of Evidence
[9]    Stuhlmacher first argues that the trial court erroneously admitted certain

       evidence. The admission and exclusion of evidence falls within the trial court’s

       sound discretion, and we will reverse only if the decision is clearly against the

       logic and effect of the facts and circumstances before it. Johnson v. State, 6

       N.E.3d 491, 498 (Ind. Ct. App. 2014).


[10]   Stuhlmacher contends that the trial court erroneously admitted two categories

       of evidence: (1) evidence regarding Stuhlmacher having been barred from

       hunting deer on a farmer’s land where he and others of his family had hunted

       for years (the “deer camp” testimony); and (2) evidence regarding his

       tumultuous relationship with Wood. According to Stuhlmacher, the admission

       of this evidence violated Indiana Evidence Rule 404(b), which provides

       generally that “[e]vidence of a crime, wrong, or other act is not admissible to

       prove a person’s character in order to show that on a particular occasion the

       person acted in accordance with the character.” The primary purpose of the

       rule is to protect the defendant from the forbidden inference that he acted badly

       in the past and therefore the present charged offense conforms to his past bad

       acts. Erickson v. State, 72 N.E.3d 965, 973-74 (Ind. Ct. App. 2017), trans. denied.


[11]   The “deer camp” testimony can be summarized as follows: Stuhlmacher was

       told that he could no longer hunt deer on the land of a family friend. The

       farmer issued this prohibition because he feared liability based on

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 5 of 11
       Stuhlmacher’s mental health and prior suicide attempts. The facts that

       Stuhlmacher had mental health issues, had attempted suicide in the past, and

       was prohibited from hunting on the farmer’s property, do not qualify as crimes,

       wrongs, or other bad acts evidence prohibited by Rule 404(b). Consequently,

       the trial court did not err by admitting this evidence.


[12]   With respect to evidence regarding his tumultuous relationship with Wood, we

       note that evidence that would otherwise be excluded by Rule 404(b) may be

       admissible for another purpose, such as proving motive. Evid. R. 404(b)(2). It

       is well accepted that evidence regarding the relationship between the defendant

       and his victim, particularly where it demonstrates a hostile relationship, is

       relevant to motive and therefore generally admissible over a Rule 404(b) claim.

       See, e.g., Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997) (holding that “hostility

       is a paradigmatic motive for committing a crime”); Ross v. State, 676 N.E.2d

       339, 346 (Ind. 1996) (holding that a defendant’s prior bad acts are generally

       admissible to show the relationship between the defendant and victim);

       Whitham v. State, 49 N.E.3d 162, 166-67 (Ind. Ct. App. 2016) (holding that

       defendant’s prior acts against a spouse are admissible to show a hostile

       relationship and are relevant to defendant’s motive and state of mind for the

       charged offense), trans denied.


[13]   Here, the evidence revealed a lengthy and hostile relationship between

       Stuhlmacher and Wood. Their marriage was fraught with tension caused by

       substance abuse, mental illness, suicidal ideations, an imbalance of household

       and familial responsibilities, resentment, and anger management problems. We

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 6 of 11
       find that the trial court did not err by admitting this evidence, which

       demonstrates a hostile relationship and is relevant to proving Stuhlmacher’s

       motive in committing the charged offenses.


                                        II. Jury Instruction
[14]   Stuhlmacher next argues that the trial court erred in instructing the jury on the

       offense of attempted murder. Instructing the jury is within the discretion of the

       trial court, and we will reverse only if a particular instruction is erroneous and

       the instructions as a whole misstate the law or otherwise mislead the jury.

       Winkleman v. State, 22 N.E.3d 844, 849 (Ind. Ct. App. 2014).


[15]   To properly instruct a jury on an attempted murder charge, the instruction must

       state that the State is required to prove beyond a reasonable doubt that the

       defendant, with the specific intent to kill the victim, engaged in conduct that

       constituted a substantial step toward such a killing. Rosales v. State, 23 N.E.3d

       8, 11 (Ind. 2015). Jury instructions on attempted murder charges that refer to a

       “knowing” or a “knowing or intentional” mens rea have generally been found

       to be erroneous. E.g., Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000);

       Kadrovach v. State, 61 N.E.3d 1241, 1243 n.2. (Ind. Ct. App. 2016), trans denied.


[16]   Here, the final instruction on the attempted murder charge reads as follows:


               [T]he crime of the [sic] attempted murder is defined as follows: a
               person attempts to commit a murder when acting with the
               specific intent to kill another person, he engages in conduct that
               constitutes a substantial step towards the killing of that person.


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 7 of 11
               Before you may convict the defendant of attempted murder, the
               State must prove each of the following elements beyond a
               reasonable doubt.

               Number 1. The defendant,

               2. Acting with a specific intent to kill Kelly [Wood],

               3. Did knowingly and intentionally drive a Ford F -150 truck at a
               high rate of speed in excess of 90 miles per hour following Kelly
               Stuhlmacher in her Mustang and rammed her vehicle three
               separate times, the last incident causing her to lose control of the
               Mustang and crash into a utility pole.

               [4.] Which was conduct constituting a substantial step towards
               the commission of the intended crime of killing Kelly
               Stuhlmacher. If the State []fails to prove each of these elements
               beyond a reasonable doubt, you must find the defendant not
               guilty of the crime of attempted [murder] a Level One Felony as
               charged in the amended count one.


       Tr. Vol. III p. 92.


[17]   At the outset, the instruction tells the jury that to convict Stuhlmacher of

       attempted murder, it must find that he acted with the specific intent to kill

       Wood. This is a correct recitation of the required mens rea. The confusion

       arises from the phrase in part three instructing the jury that it must find that

       Stuhlmacher “knowingly and intentionally” operated his truck in the manner

       specified. We agree with the State that this was “an inartful choice of wording

       because ‘knowingly’ should not have been included at all in this attempted

       murder instruction . . . .” Appellee’s Br. p. 18. Nonetheless, here, the

       conjunction “and” was used between “knowingly” and “intentionally,”


       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 8 of 11
       meaning that the jury was not left with the choice to find Stuhlmacher guilty

       based only on a knowing mens rea. Instead, the jury had to find that an

       intentional mens rea was required. Under these circumstances, we find that the

       instruction as a whole did not mislead the jury with respect to the elements

       required for an attempted murder conviction.8


                              III. Assistance of Trial Counsel
[18]   Finally, Stuhlmacher argues that he received the ineffective assistance of trial

       counsel. To succeed on a claim of ineffective assistance of trial counsel, a

       defendant must establish both deficient performance on the part of trial counsel

       and that the deficient performance prejudiced the defendant. Pavan v. State, 64

       N.E.3d 231, 233 (Ind. Ct. App. 2016).


[19]   Here, Stuhlmacher contends that trial counsel was ineffective for failing to

       move for a mistrial regarding alleged extrajudicial contact with the jurors

       during deliberations. To prevail on a mistrial motion, a defendant must

       demonstrate that he was placed in a position of grave peril to which he should

       not have been subjected. Bisard v. State, 26 N.E.3d 1060, 1067-68 (Ind. Ct. App.

       2015), trans denied. When a claim of extrajudicial contact or communications

       with the jury is made, a defendant has the initial burden of showing by a

       preponderance of the evidence that (1) extrajudicial contact occurred; and




       8
        We do, however, encourage the trial court and counsel to omit the word “knowingly” from future
       attempted murder instructions.

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017       Page 9 of 11
       (2) the contact pertained to the matter before the jury. Wahl v. State, 51 N.E.3d

       113, 115 (Ind. 2016).


[20]   In this case, the only portion of the record relating to Stuhlmacher’s mistrial

       argument is the discussion between Stuhlmacher and the trial court following

       the hearing on his motion to correct error. They were talking about

       appointment of appellate counsel, and Stuhlmacher questioned whether a new

       attorney would be able to get up to speed on everything that happened at the

       trial, including matters outside the record:


               Stuhlmacher:             Um, now there will be some things that won’t
                                        be . . . the person who was taking notes . . .
                                        for the court won’t know about. Like . . . Jen
                                        Rusk going back in the jury room after they’d
                                        been picked to deliberate and then you going
                                        back there to get her out of there. That’s not
                                        gonna be in the notes.


               Trial court:             I would deny your statement that at any time
                                        during the trial I entered the jury room. That
                                        is simply—


               Stuhlmacher:             You went back in—


               Trial court:             —stop talking for a moment. That is simply
                                        not true. And I will not allow you to try to
                                        redirect the record into facts that will never
                                        appear, did not happen and simply are
                                        unwarranted so—


                                                       ***

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017   Page 10 of 11
                Trial court:                Mr. Stuhlmacher . . . This is over. I’ll
                                            appoint a public defender. . . . I’m not going
                                            to argue with you without a lawyer here
                                            representing you. I’m not gonna try to have
                                            you make a record of what you believe the
                                            facts are. . . .


       Tr. Vol. V p. 16-18.


[21]   Stuhlmacher argues that, when this alleged incident occurred during the trial,

       his attorney should have requested a mistrial. But Stuhlmacher’s own self-

       serving, after-the-fact statements, which were vehemently denied by the trial

       court, do not amount to sufficient evidence for us to glean what, if anything,

       actually occurred. We cannot discern who Jen Rusk is, when she allegedly

       entered the jury room, what was allegedly discussed when she entered, or what

       the trial court’s involvement allegedly was. In other words, Stuhlmacher has

       not established that there was any extrajudicial contact with the jury at all.

       Under these circumstances, we cannot conclude that trial counsel was

       ineffective for failing to request a mistrial.9


[22]   The judgment of the trial court is affirmed.


       Bailey, J., and Altice, J., concur.




       9
         Because Stuhlmacher raised an ineffective assistance of trial counsel claim on direct appeal, he is foreclosed
       from bringing an ineffective assistance of trial counsel claim in a future post-conviction proceeding. Rogers v.
       State, 897 N.E.2d 955, 965 (Ind. Ct. App. 2008).

       Court of Appeals of Indiana | Memorandum Decision 37A03-1704-CR-833 | November 1, 2017            Page 11 of 11
