MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any                               Aug 15 2019, 10:38 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
Ellen M. O’Connor                                        Curtis T. Hill, Jr.
Marion County Public Defender Agency                     Attorney General of Indiana
Indianapolis, Indiana                                    Samuel J. Dayton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Michael Burkhart,                                        August 15, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2295
        v.                                               Appeal from the Marion Superior
                                                         Court
State of Indiana,                                        The Honorable Steven Rubick,
Appellee-Plaintiff.                                      Magistrate
                                                         Trial Court Cause No.
                                                         49G01-1804-F5-13128



Pyle, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019                   Page 1 of 12
                                        Statement of the Case
[1]   Michael Burkhart (“Burkhart”) appeals his conviction of Level 5 felony

      stalking.1 He specifically argues that the trial court abused its discretion in

      admitting evidence and in refusing to give the jury his tendered instruction.

      Concluding the trial court did not abuse its discretion, we affirm Burkhart’s

      convictions.


[2]   We affirm.


                                                      Issues
              1.       Whether the trial court abused its discretion in admitting
                       evidence.


              2.       Whether the trial court abused its discretion in refusing to
                       give Burkhart’s tendered jury instruction.


                                                      Facts
[3]   The evidence most favorable to the verdict reveals that in 1993, Burkhart’s

      mother contacted the Roman Catholic Archdiocese of Indianapolis (“the

      Archdiocese”) to report that her then-twenty-two-year-old son had been

      molested by a priest when he was a teenager. Burkhart had apparently hired an

      attorney regarding a potential civil claim against the Archdiocese. The

      Archdiocese found Burkhart’s molestation claim to be credible but advised him



      1
       IND. CODE § 35-45-10-5. A jury also convicted Burkhart of Class A misdemeanor resisting law enforcement.
      See I.C. § 35-44.1-3-1. Burkhart does not appeal that conviction.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019                Page 2 of 12
      that his civil claim was barred by the statute of limitations. The Archdiocese

      offered Burkhart “what the [Archdiocese] normally offer[s] a victim, and that

      was [its] pastoral outreach, which is to provide counseling, counseling

      assistance, [and] medical assistance to help with any trauma that [Burkhart]

      may have suffered.” (Tr. Vol. 2 at 26).


[4]   Fourteen years later, in May 2007, Burkhart sent a letter to the Archdiocese’s

      attorney, John Mercer (“Mercer”). In the letter, Burkhart, who was living in

      Pennsylvania at the time, asked the Archdiocese to provide him with: (1)

      $275,000 for a house: (2) $40,000 for furnishings; (3) $35,000 for a car; (4)

      $40,000 after taxes annually for life; (5) therapy for life and medications; (6)

      payment of all mental health bills; (7) payment for back S.S.I.; and (8) payment

      of 40% of attorney fees, plus any additional costs incurred for travel, lodging,

      meals, and rental cars. Burkhart told Mercer that he was attempting to “resolve

      [the] case short of filing a lawsuit[.]” (Ex. 3). Mercer responded that he had

      explained to Burkhart in 1993 that any legal claim was barred by the statute of

      limitations. Mercer explained that the Archdiocese would “continue to offer

      the pastoral response to [] Burkhart.” (Ex. 4).


[5]   In January 2008, Burkhart sent another letter to Mercer stating that he was “so

      tired of empty promises from [Mercer] and the Church.” (Ex. 5). Burkhart

      further explained his circumstances as follows: “I really don’t know what I am

      going to do or where I am going to live once I get out of treatment. I have

      nothing and no one to count on or anyone to turn to.” (Ex. 5). Burkhart ended

      his letter by stating that he was “giving [Mercer] and the Archdiocese one week

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019   Page 3 of 12
      to show [him] how sincere [they] were when [they] said that [they] wanted to

      support [him] in every way possible.” (Ex. 5). Mercer responded that the

      Archdiocese intended “to continue to reach out to [Burkhart] with its pastoral

      response” but was “not in a position to provide [him] with the financial

      assistance [he was] seeking.” (Ex. 6).


[6]   Six years later, in September 2014, Burkhart began making harassing telephone

      calls to Mercer. Burkhart demanded compensation for being molested and

      threatened to become violent if his demands were not met. In August 2017,

      Burkhart contacted Carla Hill (“Hill”), the victim’s assistance coordinator for

      the Archdiocese. Hill was responsible for assisting sexual abuse victims in

      scheduling counseling appointments. Burkhart asked Hill to schedule him an

      appointment with a specific psychiatrist. When Hill explained that that specific

      psychiatrist “was not an option for him,” Burkhart threatened to catch a

      Greyhound bus to Indianapolis and kill Mercer. (Tr. Vol. 2 at 84).


[7]   One month later, in September 2017, Mercer recorded one of Burkhart’s calls

      (“the September 2017 Telephone Call”). During the call, Burkhart told Mercer

      that he was going to kill Mercer and “eat [Mercer’s] guts.” (Tr. Vol. 2 at 40).

      Burkhart also threatened Mercer’s wife and children. The State charged

      Burkhart with two counts of Level 6 felony intimidation (“the 2017

      Intimidation Case”). Burkhart pled guilty to one of the counts, and the State

      dropped the other one. The trial court sentenced him to one year in the county

      jail.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019   Page 4 of 12
[8]    In early 2018, the trial court granted Mercer and Archdiocese employees,

       including Cathy Meyer (“Meyer”), an executive assistant at the Archdiocese

       who works with Hill to assist sexual abuse victims, a protective order against

       Burkhart (“the 2018 Protective Order”). The trial court specifically ordered

       Burkhart to stay away from the Archdiocese and to cease communication with

       Mercer and other Archdiocese employees, including Meyer. The only

       Archdiocese employee that Burkhart was allowed to contact was Hill to

       schedule counseling appointments.


[9]    In April 2018, while he was in Indianapolis, Burkhart contacted Meyer and told

       her that he wanted to speak with Hill. Meyer responded that she would let Hill

       know that he had called. Meyer immediately contacted Hill and told her about

       the call. However, shortly thereafter, Meyer received another call from

       Burkhart, who was angry that he had not heard back from Hill. Burkhart

       threatened to kill Meyer.


[10]   That same month, Burkhart contacted Hill and told her that he needed

       prescriptions for Xanax and Adderall. Burkhart, who was staying in a motel in

       Indianapolis, also demanded that Hill pay his two-night bill. Burkhart further

       told Hill that if she did not pay the bill, he would kill someone. Hill believed

       that Burkhart was referring to killing Mercer. Hill asked Burkhart the address

       of the motel where he was staying. After getting the address, Hill contacted

       Mercer, who directed her to two Indianapolis Metropolitan Police Department

       officers. The officers went to the motel to confront Burkhart about violating the

       2018 Protective Order. Burkhart became “irrational, very irate, screaming,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019   Page 5 of 12
       [and] yelling.” (Tr. Vol. 2 at 110). When the officers attempted to lead

       Burkhart out of the motel room, Burkhart began kicking the officers.


[11]   The State charged Burkhart with the Level 5 felony stalking of Mercer, and/or

       Hill, and/or Meyer. The information specifically alleged that Burkhart had

       threatened Mercer, Hill, and Meyer with the intent to place them in reasonable

       fear of serious bodily injury or death by engaging in a course of conduct that

       included the following relevant conduct: (1) making the 2017 Telephone Call;

       (2) engaging in conduct that led to the issuance of a the 2018 Protective Order;

       (3) threatening Meyer in April 2018; and (4) threatening Hill in 2018. The State

       also charged Burkhart with Level 6 felony intimidation of Meyer; Level 6

       felony intimidation of Hill; Class A misdemeanor resisting law enforcement;

       Class B misdemeanor disorderly conduct; and Class A misdemeanor invasion

       of privacy.


[12]   At trial, Burkhart objected to the admission into evidence of the recording of

       the September 2017 Telephone Call. He specifically argued that there were

       “403 issues of any probative value being outweighed by the risk of prejudice.”

       (Tr. Vol. 2 at 39). In addition, the State offered and the trial court admitted into

       evidence without objection the charging information, the plea agreement, and

       the sentencing order in the 2017 Intimidation Case.


[13]   Also at trial, Burkhart asked the trial court to give the jury Indiana Pattern

       Instruction Number 13.3300, Unanimous Decision on Generic Evidence of

       Multiple Acts, which provides as follows:


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019   Page 6 of 12
           The Defendant is accused in this case of having committed the
           crime of [name alleged crime] against [name victim] during [state
           alleged time period].

           The State has presented evidence that the Defendant may have
           committed more than one act of [name alleged crime] against
           [victim] during [date]. The evidence described multiple acts that
           may constitute the crime of [name alleged crime]. Before you may
           find the Defendant guilty of the crime of [name alleged crime] in
           the case:

           (1) You must all unanimously find and agree that the State
           proved beyond a reasonable doubt that the Defendant committed
           all acts of [name alleged crime] against [name victim] described in
           the evidence during [specify time period alleged].

           Or

           (2) You must all unanimously find and agree that the State
           proved beyond a reasonable doubt that the Defendant committed
           the act of [name alleged crime] against [name victim] in [specify first
           time alleged in the charge].

           Or

           (3) You must all unanimously find and agree that the State
           proved beyond a reasonable doubt that the Defendant committed
           the act of [name alleged crime] against [name victim] in [specify second
           time alleged in the charge].

           If you find the Defendant guilty, your verdict does not have to
           specify the particular act of [name alleged crime] Defendant
           committed or the time it was committed.2




2
    The State correctly points out that:

           Burkhart did not tender a written jury instruction on this issue; however, Burkhart’s counsel
           indicated that she was going to electronically file and email a copy, but the trial court said, ‘It

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019                                   Page 7 of 12
[14]   Burkhart explained that the purpose of the instruction was to “remind[] the jury

       that the stalking statute says this date through this date and they are only to

       consider the evidence from this date to this date for the stalking charge[.]” (Tr.

       Vol. 2 at 140). He further explained that the pattern instruction would need to

       be modified so that it applied to the offense of stalking. The State agreed that

       the instruction needed to be modified because the instruction did not “fit the

       crime of stalking.” (Tr. Vol. 2 at 142). The State explained that it was

       attempting to “fashion a way that it [did].” (Tr. Vol. 2 at 142). The State

       further explained that Burkhart “want[ed] to be limited to the dates we’re

       talking about, and I get that, but I don’t know how to do that with this

       instruction and I don’t think this instruction fits what he’s charged with here.”

       (Tr. Vo. 2 at 142). Thereafter, the trial court determined that since “we don’t

       have pattern language that is on point[,] the request to add a modified pattern . .

       . is denied.” (Tr. Vol. 2 at 142). The trial court further explained that Burkhart

       would have the opportunity to read from the pattern as part of his argument

       that the jury could only consider the evidence from specific dates alleged by the

       State for the stalking charges. During closing argument, Burkhart pointed out

       that the crimes with which he had been charged had allegedly been committed

       between September 2017 and April 2018. A jury convicted Burkhart of five of




               might be easier if you just tell us the pattern number.’ (Tr. Vol. 2 at 140). Later the trial court
               stated, ‘Okay. Well, we’ll print out a copy of that and I’ll allow [the deputy prosecutor] to
               look over his version.’ (Tr. Vol. 2 at 141).” (Appellee’s Br. at 20).




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019                            Page 8 of 12
       the six charges, and the trial court merged several of the convictions. Burkhart

       now appeals his convictions of stalking.


                                                         Decision
       1.       Admission of Evidence


[15]   Burkhart first argues that the trial court abused its discretion in admitting the

       recording of the 2017 Telephone Call into evidence because it was more

       prejudicial than probative and, therefore, violated Evidence Rule 403. 3

       Pursuant to Indiana Rule of Evidence 403, relevant evidence may be excluded

       “if its probative value is substantially outweighed by the danger of . . . unfair

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

       presenting cumulative evidence.” Snow v. State, 77 N.E.3d 173, 179 (Ind. 2017).

       This balancing is committed to the trial court’s discretion. Id.


[16]   We also review the trial court’s decision on the admissibility of evidence for an

       abuse of discretion. Hape v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009),

       trans. denied. We will reverse a trial court’s decision only if it is clearly against



       3
         In addition, Burkhart argues that the trial court erred in admitting his 2017 intimidation conviction into evidence.
       However, Burkhart failed to object to the admission of this evidence at trial. In order to preserve an issue for
       appeal, a contemporaneous objection must be made when the evidence is introduced at trial. Palilonis v. State, 970
       N.E.2d 713, 730 (Ind. Ct. App. 2012), trans. denied. If no such objection is made, the issue is waived for appellate
       review. Id. The fundamental error doctrine is an exception to the general rule that the failure to object at trial
       constitutes a procedural default precluding consideration of the issue on appeal. Id. In order to be fundamental,
       the error must represent a “blatant violation of basic principles rendering the trial unfair to the defendant and
       thereby depriving the defendant of fundamental due process.” Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012).
       “Harm is not shown by the fact that the defendant was ultimately convicted; rather harm is found when error is so
       prejudicial as to make a fair trial impossible.” Id. Further, this exception is available only in egregious
       circumstances. Palilonis, 970 N.E.2d at 730. Here, Burkhart has failed to allege or show how the admission of this
       evidence made a fair trial impossible or why the circumstances in this case were egregious. He has therefore failed
       to show fundamental error.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019                           Page 9 of 12
       the logic and effect of the facts and circumstances of the case. Id. However, the

       erroneous admission of evidence is to be disregarded as harmless if the

       conviction is supported by substantial independent evidence of guilt satisfying

       the reviewing court that there is no substantial likelihood the challenged

       evidence contributed to the conviction. Hoglund, 962 N.E.2d at 1238.


[17]   To convict Burkhart of stalking, the State was required to prove that he (1)

       knowingly or intentionally, (2) engaged in a course of conduct involving

       repeated or continuing harassment of the victims, (3) that would cause a

       reasonable person to feel terrorized, frightened, intimidated, or threatened, and

       (4) that actually caused the victims to feel terrorized, frightened, intimidated, or

       threatened. Nicholson v. State, 963 N.E.2d 1096, 1101 (Ind. 2012). Repeated in

       this context means more than once. See id. (holding repeated meant more than

       once).


[18]   Here, our review of the transcript reveals substantial evidence apart from the

       September 2017 Telephone Call to support Burkhart’s stalking conviction.

       Specifically, the evidence reveals that in early April 2018, the trial court issued a

       protective order that, based on Burkhart’s prior threats, ordered Burkhart to

       cease any communication with Mercer and Meyer. Later that month, Burkhart

       threatened to kill Meyer and someone else at the Archdiocese. This

       overwhelming evidence, all of which was admitted without objection, leads us

       to conclude that there is no substantial likelihood that the challenged evidence




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019   Page 10 of 12
       contributed to Burkhart’s conviction. Any error in the admission of this

       evidence was therefore harmless. 4


       2.       Jury Instruction


[19]   Burkhart also argues that the trial court erred in refusing to give his tendered

       jury instruction. A defendant is entitled to have the jury instructed correctly on

       an essential rule of law. McCarthy v. State, 751 N.E.2d 753, 755 (Ind. Ct. App.

       2001), trans. denied. The giving of jury instructions is a matter within the sound

       discretion of the trial court, and we review the trial court’s refusal to give a

       tendered instruction for an abuse of discretion. Id. Generally, we will reverse a

       trial court for failure to give a tendered instruction if: (1) the instruction is a

       correct statement of the law; (2) it is supported by the evidence; (3) it does not

       repeat material adequately covered by other instructions; and (4) the substantial

       rights of the tendering party would be prejudiced by a failure to give it. Id.


[20]   Here, our review of the testimony regarding Burkhart’s tendered instruction

       reveals that Burkhart tendered Pattern Jury Instruction 13.3300 because he

       wanted to remind the jury that they were only to consider evidence between

       two specific dates set forth in the charging information. However, both

       Burkhart and the State agreed that the crime of stalking did not fit the




       4
         Burkhart also argues that the 2017 Telephone Call violated double jeopardy principles because the it was used to
       convict him of both intimidation and stalking. However, Burkhart has waived appellate review of this issue
       because he did not present this evidence to the trial court. See Ferguson v. State, 40 N.E.3d 954 (Ind. Ct. App. 2015),
       trans. denied. We further note that Burkhart has again failed to allege or show how the admission of this evidence
       made a fair trial impossible or why the circumstances in this case were egregious. In addition, waiver
       notwithstanding, we have already determined that any error in the admission of this evidence was harmless.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019                          Page 11 of 12
instruction and that the instruction would need to be modified. In light of the

required modification, the trial court refused to give the jury the instruction.

However, the trial court further explained that it would allow Burkhart to

advise the jury that it could only consider evidence from specific dates set forth

in the charging information for the stalking charges. During closing argument,

Burkhart pointed out to the jury that the crimes with which he had been

charged had allegedly been committed between September 2017 and April

2018. Based on these facts and circumstances, Burkhart’s substantial rights

were not prejudiced by the trial court’s refusal to give his tendered instruction.

We therefore find no abuse of the trial court’s discretion.


Affirmed.


Riley, J., and Bailey, J., concur.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2295 |August 15, 2019   Page 12 of 12
