Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                      Aug 29 2014, 9:36 am
any 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:

JAMES W. MCNEW                                      GREGORY F. ZOELLER
Greenfield, Indiana                                 Attorney General of Indiana

                                                    MARJORIE LAWYER-SMITH
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana




                               IN THE
                     COURT OF APPEALS OF INDIANA

COLBY R. MCKNELLY,                                  )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )      No. 30A05-1307-CR-378
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                     APPEAL FROM THE HANCOCK CIRCUIT COURT
                          The Honorable Richard D. Culver, Judge
                             Cause No. 30C01-1212-MR-1947


                                         August 29, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

PYLE, Judge
                                     STATEMENT OF THE CASE

          Colby McKnelly (“McKnelly”) appeals his convictions and sentence, after a bench

trial, for murder1 and Class C felony battery with a deadly weapon.2                         On appeal,

McKnelly argues that the State committed prosecutorial misconduct by eliciting

testimony violating Rule 404(b) of the Indiana Rules of Evidence, that his convictions are

not supported by sufficient evidence, and that his sentence is inappropriate and should be

revised pursuant to Indiana Appellate Rule 7(B). Finding that the State did not commit

prosecutorial misconduct, that sufficient evidence supports his convictions, and that his

sentence is appropriate in light of his character and the fact that McKnelly stabbed and hit

the victim a total of fifty-four (54) times, we affirm McKnelly’s convictions and

sentence.

          We affirm and remand.3

                                                ISSUES

          1. Whether the State committed prosecutorial misconduct in the
             presentation of its evidence.

          2. Whether sufficient evidence supports McKnelly’s convictions.

          3. Whether McKnelly’s sentence is inappropriate.



1
    INDIANA CODE § 35-42-1-1.
2
    I.C. § 35-42-2-1(a)(3) (2012).
3
 Both parties direct our attention to an error in the Abstract of Judgment. The recitation of McKnelly’s
battery charge reads as “Battery Resulting in Serious Bodily Injury,” even though the trial court convicted
him of battery by means of a deadly weapon. (App. 290). The Indiana Code citation for both is the same,
and the trial court said during trial and at sentencing that McKnelly was guilty of battery by means of a
deadly weapon. We remand solely for the purpose of correcting the Abstract of Judgment to read
“Battery by Means of a Deadly Weapon” rather than battery resulting in serious bodily injury.
                                                    2
                                        FACTS

      In December 2012, McKnelly and Jessi Parsons Freeman (“Freeman”) were dating

and living together. On December 23, 2012, McKnelly and Freeman went shopping and

later went to the home of Steven Rogers (“Rogers”). McKnelly and Freeman stayed at

Rogers’s house for about an hour before they all left to buy food and alcohol. All three

then went back to McKnelly’s house.

      At McKnelly’s house, everyone was drinking, listening to music, and playing

pool. At some point, McKnelly and Freeman began to argue, and McKnelly struck

Freeman. She then hid from McKnelly so that she could later sneak out of the house.

McKnelly found Freeman and dragged her back into a bedroom. Eventually, they both

went to sleep. At 4 A.M., McKnelly woke Freeman up and told her that he wanted to go

to the home of Chris Cave (“Cave”). McKnelly and Freeman drove to Cave’s house,

which was a few blocks away.       Rogers did not go to Cave’s house and stayed at

McKnelly’s.

      When McKnelly and Freeman arrived at Cave’s home, McKnelly told Freeman

that he “hope[d] there’s no kids in there because [he’s] going to kill everybody.” (Tr.

620). McKnelly sent a text message to Cave, and Cave responded that he did not want

any company. Raymond Kalchthaler (“Kalchthaler”) was staying with Cave and was

also friends with McKnelly. McKnelly called Kalchthaler, and Kalchthaler went outside

to meet McKnelly and Freeman. When Kalchthaler exited the house, Freeman left the

car and walked toward McKnelly’s house. McKnelly and Kalchthaler got in the car and

followed her.

                                           3
       Once they arrived at McKnelly’s house, McKnelly turned into the driveway, got

out of the car, and began arguing with Freeman. Kalchthaler exited the car and walked

toward a gas station, as he did not want to be involved in their argument. McKnelly told

Freeman to go in the house, and she refused. McKnelly then got behind Freeman in an

effort to push her towards the house. At some point while pushing Freeman toward the

house, McKnelly cut her elbow with a knife. Freeman again told McKnelly that she did

not want to go in the house and that she wanted to leave. McKnelly told Freeman that if

she left, he would kill her.

       Kalchthaler came back to McKnelly’s house soon afterward, and saw Freeman on

a bed crying and holding her arm. Kalchthaler testified that he felt very uneasy walking

through the house, that “the atmosphere was heavy,” and that “[he] felt like it was almost

directed toward [him].” (Tr. 320). McKnelly and Kalchthaler went outside to the front

porch. Freeman came outside and asked Kalchthaler for a cigarette, and McKnelly told

her to go back in the house. Rogers was in the kitchen eating, and Freeman told him that

McKnelly had cut her. McKnelly told Rogers that Freeman had jumped out of the car

and that her injuries were road rash. McKnelly took Freeman to the bathroom and put

gauze and a bandage around her elbow wound. While doing so, McKnelly told Freeman

that she “saved [Kalchthaler’s] ass.” (Tr. 626).

       After bandaging the wound, McKnelly told Freeman that he was going to kill

Rogers. Freeman asked McKnelly why and told him that they should take Rogers home

instead.   Rogers was walking through the house when McKnelly began saying

disparaging remarks about himself. According to Freeman’s testimony, Rogers told

                                             4
McKnelly “there’s nothing wrong with you dude.” (Tr. 627). Rogers then tried to give

McKnelly a hug, but McKnelly stabbed him in the chest. Rogers grabbed a knife that

was nearby and stabbed McKnelly. The two fought, and McKnelly got behind Rogers

and stabbed him over fifty (50) times in the back of his head, neck, and back. Eventually

the men stopped fighting and stumbled through the living room of the house. Rogers

took out his cell phone and, according to Freeman, called his grandmother to “tell her

bye.” (Tr. 631). McKnelly grabbed the phone from Rogers and hit him on the head with

a thick, metal flashlight at least four times. Freeman and McKnelly left Rogers in the

house and fled in McKnelly’s car. Freeman drove McKnelly to his mother’s home, and

told her not to tell his mother what had happened and to say he had acted in self-defense.

Freeman dropped McKnelly off at his mother’s house. She then went to her parents’

house and asked her father to call 911. Officers went to McKnelly’s house and found

Rogers, who had died from his injuries.

      On December 27, 2012, the State charged McKnelly with murder, Class B and

Class C felony criminal confinement, Class C felony battery, Class D felony intimidation,

and Class A misdemeanor domestic battery. McKnelly waived his right to a jury trial,

and the trial court held a bench trial June 11, 2013. Before the trial began, the State

dismissed several charges and went forward on the murder and felony battery charges.

McKnelly testified on his own behalf and stated that Rogers started the fight by stabbing

him in the chest. McKnelly further testified that he was afraid for his life and was

defending himself from Rogers. The trial court found McKnelly guilty of both charges

and set the matter for sentencing on July 29, 2013.

                                            5
       At sentencing, the trial court found that the circumstances of the murder,

McKnelly’s criminal history, and his lack of remorse were aggravating factors. The trial

court did not find any mitigating circumstances and sentenced McKnelly to sixty-five

(65) years executed on his conviction for murder and eight (8) years executed for the C

felony battery conviction. The trial court ordered the sentences to run consecutively for

an aggregate term of seventy-three (73) years executed in the Department of Correction.

McKnelly now appeals. We will include additional facts as necessary.

                                        DECISION

       McKnelly argues that his convictions should be overturned because the State

committed prosecutorial misconduct and because of a lack of sufficient evidence

supporting his convictions. He also claims that his sentence is inappropriate in light of

the nature of the offenses and his character.

1. Prosecutorial Misconduct

       McKnelly claims that the State engaged in prosecutorial misconduct by eliciting

testimony that violated Rule 404(b) of the Indiana Rules of Evidence. In reviewing a

properly preserved claim of prosecutorial misconduct, we must first determine whether

the prosecutor’s conduct was improper. Newsome v. State, 686 N.E.2d 868, 875 (Ind. Ct.

App. 1997).    If we determine the conduct was improper, we must then determine

whether, under all of the circumstances, the prosecutor’s misconduct placed the

defendant in a position of grave peril. Id. In deciding whether the defendant was placed

in grave peril, we consider the probable persuasive effect of the misconduct on the fact-

finder’s decision. Id.

                                                6
      “[A]n appellate claim of prosecutorial misconduct presented on appeal in the

absence of [a] contemporaneous trial objection will not succeed unless the defendant

established not only the grounds for prosecutorial misconduct but also the additional

grounds for fundamental error.” Booher v. State, 773 N.E.2d 814, 818 (Ind. 2002).

Fundamental error is an extremely narrow exception that allows a defendant to avoid

waiver of an issue. Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006). Fundamental error

makes “a fair trial impossible or constitute[s] clearly blatant violations of basic

elementary principles of due process . . . presen[ting] an undeniable and substantial

potential for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002).

      McKnelly points to four instances of alleged prosecutorial misconduct, but only

objected to three. He essentially argues that all four instances of misconduct were

attempts to “destroy his credibility” with the improper introduction of prior bad acts,

wrongs or other criminal activity in violation of Rule 404(b). (McKnelly’s Br. 10).

      McKnelly complains about the following two exchanges:

      Q      Can you describe your interactions with the Defendant after you met
             him?

      A      Uh, well me and Colby never really got [along] until like at the very
             end, I thought, you know we was [all right]. I know uh, we’ve had
             an incident about, because I smacked his girlfriend’s ass, you know,
             can I say that?

      Q      Sure.

      A      I smacked her.

      Q      Speak up please.



                                            7
       A        I smacked his girlfriend’s butt when I didn’t know that was his
                girlfriend. I had uh, I found, I heard that he said that uh, some things
                about that, said he was going to kill me. Uh, I confronted him on
                that, he pulled a knife out on me once and on uh, when that
                happened...

       BY ATTORNEY TOMPKINS: Your Honor, objection. Move to strike. I
       would ask the State to caution the witness against uncharged misconduct.

(Tr. 252-53). The second alleged instance of prosecutorial misconduct was as follows:

       Q        Okay. What were you guys talking about in the vehicle?

       A        Uh, nonsense about uh, some methamphetamine uh, ...

       BY ATTORNEY TOMPKINS: Your Honor, objection. Uncharged
           misconduct, I’m going to have to move to strike that portion of the
           answer.

       BY THE COURT: Respond or move on Mr. Spears.

       BY ATTORNEY SPEARS: Uh, the response, uh, just move on.

(Tr. 309-10).

       In reviewing these exchanges, both answers were given in response to otherwise

proper questions. Because the State did not specifically ask questions to illicit the above-

mentioned testimony, no prosecutorial misconduct took place. See, e.g., Ratliff v. State,

741 N.E.2d 424, 430 (Ind. Ct. App. 2000) (No misconduct on the State’s part where the

questions asked “did not seek inflammatory or clearly improper answers, nor did the

testimony establish any elements of the charged crimes”), trans. denied.

       McKnelly also alleges that the State elicited “impermissible 404(b) testimony

from Charity Reier (“Reier”) regarding a prior argument between McKnelly and

Freeman” a few days before McKnelly cut Freeman and killed Rogers. (McKnelly’s Br.


                                               8
9).   McKnelly objected to the following answer from Reier describing an incident

between Freeman and himself:

       A few days prior to that uh, Jessi was going out to eat with a friend and
       when she had got back she had wanted to leave again, or with her. . . . And
       [Freeman and McKnelly] started to argue and they left my house walking. .
       . . Colby and Jessi started to argue and they left walking. . . . Uh, and me
       and Ashley picked her up at uh, Shane’s Tattoo shop here in Greenfield. . . .
       Ashley had went in to get Jessi uh, they ran out to the car. . . . And when
       they were coming out to the car Colby was running down the street and
       kicked the car when, or hit it or kicked it.

(Tr. 345-46) In response to McKnelly’s objection, the State responded that “the case law

is where there’s a relationship that has conflict or there’s been witnessed conflict[,] it can

come in based on the fact that there’s confrontation between the victim and the defendant

to show relationship as well as the motive.” (Tr. 344-45).

       Indeed, in Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004), we stated that

“[n]umerous cases have held that where a relationship between parties is characterized by

frequent conflict, evidence of the defendant’s prior assault and confrontations with the

victim may be admitted to show the relationship between the parties and motive for

committing the crime.” Again, where the State’s question was not improper and the

testimony elicited was admissible, no prosecutorial misconduct took place. See Ratliff,

741 N.E.2d at 430.

       Finally, McKnelly alleges prosecutorial misconduct when the State elicited

testimony from Freeman about McKnelly hitting her earlier in the evening of December

23:

       Q      Okay. Once you’re inside what did you all do?


                                              9
       A      Drank, listen to music, they played pool.

       Q      How were they getting along at that point?

       A      Fine.

       Q      What happens next?

       A      Me and Colby get into it.

       Q      Okay, you get in a fight with Colby?

       A      Yes.

       Q      Verbal argument?

       A      Started verbal and I said I wanted to leave. I was texting Charity.

       Q      Okay.

       A      He hit me.

(Tr. 614). However, McKnelly did not make a timely objection. Therefore, he

must establish “not only the grounds for prosecutorial misconduct but also the

additional grounds for fundamental error.” Booher, 773 N.E.2d at 818. Because

Freeman’s testimony is admissible under Iqbal, McNelly has not established either

prosecutorial misconduct or fundamental error. Accordingly, the State did not

commit prosecutorial misconduct in any of the instances McKnelly alleges.

2. Sufficiency of the Evidence

       McKnelly argues that the evidence was insufficient to support his convictions.

Specifically, McKnelly claims that he presented a valid claim of self-defense, that the

State failed to rebut his claim, and that we should disregard Freeman’s testimony under

the “incredible dubiosity rule.”

                                            10
       We review a challenge to the sufficiency of evidence to rebut a claim of self-

defense in the same manner as any sufficiency claim in that we neither reweigh the

evidence nor judge the credibility of witnesses. Wilson v. State, 770 N.E.2d 799, 801

(Ind. 2002). We will not overturn a conviction if there is sufficient evidence of probative

value to support the conclusion of the trier-of-fact. Id. “A valid claim of self-defense of

oneself or another person is legal justification for an act that is otherwise defined as

criminal.” Id. at 800. To present a valid claim of self-defense, 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. Id. The amount of force that an individual may use to protect himself must be

proportionate to the urgency of the situation. Hollowell v. State, 707 N.E.2d 1014, 1021

(Ind. Ct. App. 1999). When a person uses more force than is reasonably necessary under

the circumstances, the right of self-defense is extinguished.          Id.   A defendant’s

conviction, despite a claim of self-defense, will not be reversed unless no reasonable

person can say that the State negated the claim beyond a reasonable doubt. Mariscal v.

State, 687 N.E.2d 378, 381 (Ind. Ct. App. 1997), trans. denied.

       Here, McKnelly argues that his self-defense claim is valid because he testified,

contrary to Freeman’s assertion, that Rogers stabbed him first. This is simply a request

that we discount Freeman’s testimony. We decline to do so. See Wilson, 770 N.E.2d at

801. In addition, the State’s case-in-chief, particularly the coroner’s report, provides

sufficient circumstantial evidence rebutting McKnelly’s claim of self-defense. The report

details at least fifty (50) stab or laceration wounds to Rogers. Seventeen (17) of those

                                             11
wounds were to his back. The trial court could easily infer that McKnelly was the

instigator or that the force he used against Rogers extinguished his self-defense claim.

       McKnelly further argues that we should disregard Freeman’s testimony based on

the “incredible dubiosity rule” because her testimony varied greatly from her deposition

and that of other witnesses. Under the incredible dubiosity rule, this Court may impinge

upon the responsibility of the fact-finder to judge the credibility of witnesses when

confronted with inherently improbable testimony or coerced, equivocal, wholly

uncorroborated testimony. Manuel v. State, 971 N.E.2d 1262, 1271 (Ind. Ct. App. 2012).

We may reverse a defendant’s conviction where a sole witness presents inherently

improbable testimony and there is a complete lack of circumstantial evidence.              Id.

However, application of this rule is rare, and the standard to be applied is whether the

testimony is so incredibly dubious or inherently improbable that no reasonable person

could believe it. Id.

       McKnelly’s reliance on the incredible dubiosity rule is misplaced because the rule

“applies only when a witness contradicts [herself] in a single statement or while

testifying, not to conflicts between multiple statements.” Glenn v. State, 884 N.E.2d 347,

356 (Ind. Ct. App. 2008), trans. denied. Indeed, Freeman’s testimony may have varied

from that of Kalchthaler, McKnelly, and her deposition, but these variations did not

render her testimony at trial incredibly dubious. The record reveals that Freeman’s

testimony at trial provided more details but that her general assertions of what happened

that evening were consistent.     Furthermore, McKnelly’s convictions are not merely

supported by Freeman’s testimony but by additional circumstantial evidence, such as the

                                            12
Coroner’s report. Therefore, McKnelly’s reliance on the incredible dubiosity rule fails,

and sufficient evidence supports his convictions.

3. Inappropriate Sentence

       Finally, McKnelly claims that his sentence is inappropriate in light of his character

and the nature of the offenses. He suggests that we should revise his sentence to the

advisory term for murder, which is fifty-five (55) years, and the advisory term for Class

C felony battery, which is four (4) years. He also suggests that the convictions should

run concurrently.

       Rule 7(B) of the Indiana Rules of Appellate Procedure gives this Court the power

to revise an inappropriate sentence in light of the nature of the offense and character of

the offender, giving due consideration to the trial court’s decision. The defendant must

persuade us that his sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

(Ind. 2006). Under Rule 7(B), we seek “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).             Whether a sentence is

inappropriate ultimately depends upon “the culpability of the defendant, the severity of

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

given case.” Id. at 1224.

       In determining whether a sentence is appropriate, we first look to the advisory

sentence provided by statute. Childress, 848 N.E.2d at 1081. The sentencing statute for

murder provides a sentencing range between forty-five (45) and sixty-five (65) years,

                                            13
with an advisory sentence of fifty-five (55) years. I.C. § 35-50-2-3. The sentencing

range for Class C felony battery is between two (2) and eight (8) years, with an advisory

sentence of four (4). I.C. § 35-50-2-6(a).4

          As to McKnelly’s character, his criminal history, including juvenile adjudications,

which are not far removed from his adult convictions, is extensive.5 As a juvenile,

McKnelly has adjudications for criminal mischief, possession of paraphernalia, driving

under the influence of alcohol in Clay County, Illinois, and child molesting. As an adult,

McKnelly has convictions for driving under the influence of alcohol and disorderly

conduct in Clay County, Illinois, two convictions for battery, domestic battery, resisting

law enforcement, criminal mischief, operating a vehicle while intoxicated, operating a

vehicle having never received a license, and sexual battery. As an adult and a juvenile,

McKnelly has had his probation revoked, resulting in incarceration at the Department of

Correction. Two of his misdemeanor convictions were pending at the time of the present

case, and he was charged with and convicted of battery in another cause while in custody

awaiting trial.

          Regarding the nature of the murder, McKnelly argues that it is not among the

“worst of the worst” because of a lack of significant premeditation and that Rogers




4
  Effective July 1, 2014, our General Assembly amended and reclassified the offense of battery with a
deadly weapon from a Class C felony to a Level 5 felony with a new sentencing range of one (1) to six (6)
years, with the advisory sentence now being three (3) years. IND. CODE § 35-50-2-6(b). However,
because this offense was committed before the reclassification scheme took effect, we apply the previous
sentencing scheme.
5
    Where not specified, the adjudications or convictions took place in Indiana.

                                                      14
instigated the fight.6 We disagree. The evidence most favorable to the conviction shows

that McKnelly planned to kill Rogers and told Freeman how he was going to do it.

Rogers was simply trying to console a supposedly distraught McKnelly. McKnelly

responded by brutally stabbing Rogers multiple times and then beating him with a metal

flashlight. The stab wounds were so numerous that the Coroner had difficulty reporting

an accurate count. Rogers’s demise at the hands of McKnelly was especially brutal.

          Given McKnelly’s criminal history and the nature and circumstances of the

murder, McKnelly’s sentence is not inappropriate.

          Affirmed and remanded.

FRIEDLANDER, J., and MATHIAS, J., concur.




6
    Though McKnelly asks us to revise his battery sentence, he makes no specific argument why we should.
                                                    15
