 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any                        Mar 19 2013, 9:13 am
 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:

EUGENE C. HOLLANDER                                  GREGORY F. ZOELLER
Special Assistant to the State Public Defender       Attorney General of Indiana
Indianapolis, Indiana
                                                     GEORGE P. SHERMAN
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana



                                IN THE
                      COURT OF APPEALS OF INDIANA

DEREK F. WILLIAMS,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
                vs.                                  )      No. 14A01-1205-CR-201
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                      APPEAL FROM THE DAVIESS SUPERIOR COURT
                           The Honorable Dean A. Sobecki, Judge
                              Cause No. 14D01-1102-MR-141


                                           March 19, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
         Derek F. Williams appeals from his conviction of and sentence for murder.1 Williams

presents the following issues for our review:

         1. Did the trial court abuse its discretion by refusing to instruct the jury on
            voluntary manslaughter as a lesser-included offense of murder?

         2. Is Williams’s sentence inappropriate in light of the nature of the offense
            and the character of the offender?

         We affirm.

         The facts most favorable to the jury’s verdict reveal that Williams and the victim, Kim

Williams, were married in 1995 and two children were born of the marriage. T.W. was born

in 1997, and R.W. was born in 2004. After serving in the military, Williams began working

for a company that installed electronic warfare equipment on military ships located all over

the world.

         On January 18, 2012, Kim spoke with her attorney, Meredith McIntyre. McIntyre

observed that Kim was physically shaking, had tears in her eyes, and was clearly upset. Kim

allowed McIntyre to listen to several cell phone messages she had received from Williams

and stated that she wanted to commence dissolution proceedings. Near the end of January

2011, Williams, who was working in Hawaii, learned that Kim had filed a petition for the

dissolution of their marriage.

         Williams told his work supervisor, Scott Greenan about his concern that the divorce

would result in Williams losing some of his retirement money. The week of Kim’s death,

Williams had several conversations with Greenan about the financial aspects of the divorce.


1
    Ind. Code Ann. § 35-42-1-1 (West, Westlaw current through 2012 2nd Reg. Sess.).

                                                    2
Greenan observed that Williams seemed bothered quite a bit and was upset about the matter.

Their discussions centered around the topic of how the retirement money could be divided.

Ultimately, Greenan told Williams that he should hire an attorney.

       Williams also discussed the topic his impending dissolution with Kevin Chase, a co-

worker. Williams told Chase that he was upset about losing some of his retirement money

and asked Chase, who had previously been divorced, about divorce attorneys. Chase

indicated that he had been represented by McIntyre in his dissolution action. When Williams

told Chase that Kim had hired McIntyre, Chase responded by saying, “[Y]ou’re screwed.”

Transcript at 559. Chase responded the same way on the few occasions Williams discussed

the issue with him, and made that statement on the day Kim died. One day after work,

Williams told Chase that it would “just be easier to kill the bitch.” Id. at 560.

       On the evening of February 3, 2011, T.W. and Kim watched several television shows

together while R.W. was already asleep in bed. At approximately, 8:40 p.m., Williams came

home and went to his office in the family’s home. T.W. went to bed sometime between 9:00

p.m. and 9:30 p.m. At approximately, 12:40 a.m., T.W. awoke to hear his mother screaming

and crying, in a manner which he had never before heard, and which was indicative of the

fact that she was in a great deal of pain. T.W. heard Kim ask “Why are you doing this?”

Transcript at 317. Williams responded in an angry voice, “Does that hurt?” Id. T.W. arose

from bed to use the bathroom and then returned to his bed. A few minutes after lying back

down, T.W. heard the sound of four gunshots.




                                              3
       T.W. got out of bed, turned on the lights, and walked to the area between the living

room and the kitchen. He observed his mother’s motionless body on the floor next to the

fireplace and could tell that she had been shot. Williams was rolling around on the floor and

it appeared to T.W. that Williams had shot himself. T.W. cursed at his father and asked him

why he would do something like that. He then ran to the kitchen, and grabbed Kim’s phone.

On his way back to his bedroom, T.W. encountered R.W. in the hallway. R.W. asked T.W.

why he was yelling. T.W. placed R.W. in his room and dialed 911.

       Daviess County Sheriff’s Deputy Mark Bledsoe was dispatched to Williams’s home,

and after arriving at the house, looked for any signs of light. The dispatcher had advised him

that the children were scared and wanted to know when it would be safe to come out. Deputy

Bledsoe asked the dispatcher to inquire if T.W. could unlock the front door. The dispatcher

advised Deputy Bledsoe that the boy was scared and did not want to come to the door. When

Deputy Horace Wise arrived at the Williams home, Deputy Bledsoe told him he was going to

kick in the front door. Deputy Bledsoe announced himself and stated that he was coming in

the house. Before he could enter the house, he saw someone walking in the living room area.

Deputy Bledsoe relayed that information to Deputy Wise who looked into the house from

another window. Deputy Wise saw an individual who appeared to be bloody. Deputy

Bledsoe observed that the person seemed to be frantically searching for something.

       Deputy Bledsoe knocked on the door again and announced that he was with the

sheriff’s department. Deputy Wise informed Deputy Bledsoe that the individual in the house

had run downstairs and returned. He also observed that the person was covered in blood.


                                              4
Deputy Bledsoe knocked and announced his presence again before attempting to kick in the

door. The third time Deputy Bledsoe kicked the door, it flew open. He entered, drew his

sidearm, and used a small flashlight to scan the interior of the house. Williams suddenly

appeared in front of the deputy, and Deputy Bledsoe observed that Williams was covered in

blood and looked as if his face was coming apart. Williams assumed a shooter’s stance and

yelled, “Bang!” Transcript at 227. Williams then disappeared before reappearing and

engaging in the same behavior. Williams then approached Deputy Bledsoe at a rapid pace

and grabbed him. During the ensuing struggle, Deputy Bledsoe attempted to subdue

Williams and prevent him from grabbing the sidearm. With Deputy Wise’s help, Deputy

Bledsoe was able to restrain Williams.

       Deputy Bledsoe asked Williams, “Who did this?” Transcript at 236. Williams

motioned toward the living room and responded, “Ask her.” Id. Deputy Bledsoe observed

Kim’s body for the first time when he looked in the direction indicated by Williams. Kim

was bleeding from her face. Deputy Bledsoe then asked Williams where the gun was

located. Williams again responded, “Ask her.” Transcript at 237. The left sleeve of Deputy

Bledsoe’s coat and his left boot were covered in blood from the struggle with Williams.

       When the emergency medical technicians arrived, Deputy Bledsoe and Deputy Wise

searched the house for the children. They directed T.W. and R.W. to exit the house through a

bedroom window instead of the front door, so the children could avoid further exposure to

what had taken place in the living room.




                                             5
       During the ensuing police investigation, Williams’s Glock handgun was found in the

living room and divorce papers were found in the passenger seat of Williams’s car. A

forensic DNA analyst from the Indiana State Police Department determined that the blood

and DNA found at the scene belonged to Williams and Kim. A bullet retrieved from the

ceiling rafters had Williams’s DNA on it from passing through his face when he was shot. A

Naval Criminal Investigative Service Special Agent, who worked as a forensic consultant on

the case, concluded that Kim was lying down when she was shot.

       Investigators discovered that Williams had worked as a reserve sheriff’s deputy from

1993 to 1994, and had received specialized training on the use of the firearm that was used to

kill Kim. An Indiana State Police forensic firearms examiner tested the murder weapon and

found that it was working properly, and concluded that it required six to seven and a half

pounds of pressure applied to the trigger in order for the weapon to fire.

       During the forensic pathologist’s examination of Kim, he found that she had sustained

four gunshot wounds, including two wounds to her face as well as gunshot wounds on her

arm. The pathologist concluded from the location of the wounds that Kim had been shot first

in the arm while she was in a defensive position, and that when the bullet exited her arm, it

struck her face. That bullet then entered Kim’s brain, leaving her incapacitated and unable to

take any conscious action. Kim was then shot again in the face from less than a foot away.

The pathologist concluded that Kim died as a result of a gunshot to her face, which caused

the bullet to pass through her brain.




                                              6
       The State charged Williams with murder on February 22, 2011. After evidence was

presented, Williams requested that the jury be instructed on voluntary manslaughter. The

trial court heard the argument of counsel on the issue and denied Williams’s request. At the

conclusion of the jury trial, Williams was found guilty of murder. Williams’s version of the

events that occurred on the evening of Kim’s death is included in the pre-sentence

investigation report, which, obviously, was not before the jury. Williams claimed that Kim

awakened him to talk about the divorce and that she had a gun in her hand. He contended

that they scuffled for the gun and the gun went off when he had it in his hand with his finger

on the trigger. He further claimed that the gun may have gone off from the impact of their

struggle. Williams stated that he woke up and discovered that he had been wounded.

       The trial court found the following mitigating circumstances: 1) Williams’s lack of

criminal history; 2) his military record; 3) his employment record; 4) the health and age of his

mother; and 5) his volunteer service. The following aggravating circumstances were found

by the trial court: 1) Williams’s position of trust with the victim; 2) the murder took place in

the presence of T.W. and R.W.; 3) Williams’s actions exposed T.W., in particular, to a great

deal of trauma; 4) Kim was shot more than one time; 5) Williams attempted to orphan his

children by shooting himself; and 6) Williams wrestled with police officers who were

dispatched to the scene. After concluding that the aggravating factors outweighed the

mitigating factors, the trial court sentenced Williams to sixty-five years executed. Williams

now appeals.




                                               7
                                              1.

       Williams contends that the trial court erred by denying his request that the jury receive

an instruction on a lesser-included offense, voluntary manslaughter. Our standard of review

in matters such as this is well settled.

       To resolve an appellate claim of trial court error in refusing an instruction, we
       consider: (1) whether the tendered instruction is a correct statement of the law;
       (2) whether there is evidence in the record to support the instruction; and (3)
       whether the substance of the instruction is covered by other instructions given
       by the court. When evaluating these factors, we are mindful that instructing
       the jury generally lies within the sole discretion of the trial court and that
       reversal is appropriate only for abuse of discretion.

Raess v. Doescher, 883 N.E.2d 790, 798–99 (Ind. 2008) (internal citations omitted). Even

where a trial court errs in giving or refusing to give a tendered instruction, the defendant is

entitled to reversal only if he or she affirmatively shows that the error prejudiced his or her

substantial rights. Mateo v. State, 981 N.E.2d 59 (Ind. Ct. App. 2012), trans. denied. “Errors

in the giving or refusing of instructions are harmless where a conviction is clearly sustained

by the evidence and the jury could not properly have found otherwise.” Lee v. State, 964

N.E.2d 859, 862–63 (Ind. Ct. App. 2012) (quoting Dill v. State, 741 N.E.2d 1230, 1233 (Ind.

2001)).

       When a party requests a trial court to instruct a jury on a lesser included
       offense of a charged crime, the court must perform a three part analysis. First,
       it must determine whether the alleged lesser included offense is inherently
       included in the greater offense. An offense is inherently included if (a) the
       alleged lesser included offense may be established by proof of the same
       material elements or less than all the material elements defining the crime
       charged, or (b) the only feature distinguishing the alleged lesser included
       offense from the crime charged is that a lesser culpability is required to
       establish the commission of the lesser offense. Second, if an offense is not
       inherently included, then the court must determine whether the offense is

                                               8
        factually included by comparing the charging instrument to the statute defining
        the alleged lesser included offense.

        Third, if an offense is either inherently or factually included within a greater
        offense, then the court must look at the evidence presented in the case by both
        parties and determine whether there is a serious evidentiary dispute about the
        element or elements distinguishing the greater from the lesser offense. If there
        is such a dispute, such that a jury could conclude that the lesser offense was
        committed but not the greater, then it is reversible error for a trial court not to
        give an instruction, when requested, on the inherently or factually included
        lesser offense. If the evidence does not so support the giving of a requested
        instruction on an inherently or factually included lesser offense, then a trial
        court should not give the requested instruction. When the propriety of giving a
        lesser included offense instruction turns on the existence or not of a serious
        evidentiary dispute, and the trial court has made an express finding on the
        existence or lack of such a dispute, our standard of review for a lesser included
        offense instruction is abuse of discretion. If a trial court makes no explicit
        finding regarding a serious evidentiary dispute, we review the ruling de novo.

True v. State, 954 N.E.2d 1105, 1108 (Ind. Ct. App. 2011) (internal quotations and citations

omitted).

        In the present case, when the parties presented their arguments about the propriety of

instructing the jury on voluntary manslaughter, the trial court correctly found that it should

turn to the third part of the analysis regarding the tendered instruction. 2 As the statutes are

currently drafted, the offense of voluntary manslaughter as a class B felony is an inherently

lesser-included offense of murder. Ross v. State, 877 N.E.2d 829 (Ind. Ct. App. 2007). The

offense of voluntary manslaughter as a class A felony requires the State to prove the

additional element that the crime was committed by use of a deadly weapon. Id. Thus,




2
 The trial court found that voluntary manslaughter was an inherently lesser-included offense of murder, when
in this case, it was a factually lesser-included offense of murder. This misstatement does not negate the
ultimate conclusion reached by the trial court.

                                                     9
voluntary manslaughter, as a class A felony, can be a factually lesser-included offense of

murder if the charging instrument alleges that the accused used a deadly weapon to commit

the offense. Id. (emphasis supplied). Here, there is no dispute that Williams was accused of

committing the offense by use of a deadly weapon. Thus, in this situation, class A felony

voluntary manslaughter would be a factually lesser-included offense of murder. Nonetheless,

the trial court turned to the third consideration in its analysis of the appropriateness of giving

the tendered instruction, and that analysis would be proper in the case of either a factually or

inherently lesser-included offense.

       The element distinguishing voluntary manslaughter from murder is sudden heat. I.C.

§35-42-1-3 (West, Westlaw current through 2012 2nd Reg. Sess.); Washington v. State, 808

N.E.2d 617 (Ind. 2004). Our Supreme Court has characterized sudden heat as an evidentiary

predicate allowing for the mitigation of a murder charge to voluntary manslaughter.

Washington v. State, 808 N.E.2d 617. The evidence indicative of the existence of sudden

heat is “anger, rage, resentment, or terror sufficient to obscure the reason of an ordinary man;

it prevents deliberation and premeditation, excludes malice, and renders a person incapable

of cool reflection.” Wilson v. State, 697 N.E.2d 466, 474 (Ind. 1998) (quoting McBroom v.

State, 530 N.E.2d 725, 728 (Ind. 1988)).

       The trial court analyzed whether there was a serious evidentiary dispute over the

existence of sudden heat, the element distinguishing the two offenses at issue here. In its

analysis, the trial court noted the conversation to which Chase testified between Williams and

Chase about Williams’s impending divorce from Kim. In particular, the trial court noted


                                               10
Chase’s testimony that Williams indicated “it would just be easier to kill the bitch.”

Transcript at 560. The trial court then analyzed T.W.’s testimony about the sequence of the

events on the night of Kim’s murder and concluded that there was no serious evidentiary

dispute concerning sudden heat. The trial court explicitly rejected that tendered instruction.

Transcript at 670.

       On appeal, Williams claims that the trial court abused its discretion by refusing to give

the tendered instruction on voluntary manslaughter. Williams appears to argue that the

State’s detailed description of the evidence to the jury was compelled by some sudden heat

evidence that had been introduced, albeit through its own witnesses, as the defense rested

without calling any witnesses after the State had rested its case. Our focus on review of the

issue presented, however, is not on the abundance of evidence presented in an effort to

establish Williams’s guilt, but on the existence of evidence of sudden heat in order to

evaluate the trial court’s ruling on the tendered instruction.

       Williams seems to argue that evidence of sudden heat was introduced through T.W.’s

testimony regarding the argument he overheard between Kim and Williams prior to the

shooting. T.W. testified that he awoke from sleep to the sound of Kim screaming and crying

in a manner he had not heard before that evening. He described her tone as one of someone

who was in a great deal of pain. T.W. testified that he heard Kim ask, “Why are you doing

this?” and heard Williams respond in an angry tone, “Does that hurt?” T.W. went to the

restroom and then returned to his bedroom. He testified that approximately two minutes later




                                              11
he heard three gunshots fired in rapid succession, followed by a pause, and then another

gunshot.

       Although T.W. testified that on the night of Kim’s death Williams was angry and that

his parents were involved in an argument resulting in the infliction of pain upon Kim, anger

alone is not sufficient to support an instruction on sudden heat. See Wilson v. State, 697

N.E.2d 466, 474 (Ind. 1998) (standing alone, anger is not sufficient to support an instruction

on sudden heat). Indeed, words alone will not “‘constitute sufficient provocation to warrant a

jury instruction on voluntary manslaughter[.]’” Suprenant v. State, 925 N.E.2d 1280, 1282

(Ind. Ct. App. 2010) (quoting Allen v. State, 716 N.E.2d 449, 452 (Ind. 1999)). Furthermore,

“[a] mere expression of one[’]s desire to end a relationship cannot, as a matter of law,

constitute sufficient provocation to induce passion that renders a reasonable person incapable

of cool reflection sufficient to warrant a voluntary manslaughter instruction.” Massey v.

State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (citing and comparing Perigo v. State, 541

N.E.2d 936 (Ind. 1989) and Evans v. State, 727 N.E.2d 1072 (Ind. 2000)).

       Here, the record reflects that Williams learned while he was working in Hawaii that

Kim intended to begin dissolution proceedings. Williams told his work supervisor, Greenan,

about his concern that the divorce would result in Williams losing some of his retirement

money. The week of Kim’s death, Williams had several conversations with Greenan about

the financial aspects of the divorce. Greenan observed that Williams seemed bothered quite a

bit and was upset about the matter. Williams also had discussions about the matter with his

co-worker, Chase, and the last conversation concluded with Williams’s statement, “it would


                                             12
just be easier to kill the bitch.” Transcript at 560. These conversations occurred several days

prior to the evening of Kim’s death. Williams signed for the dissolution petition, which

arrived by certified mail on the Monday prior to Kim’s death on Friday. The trial court

correctly concluded that there was no evidence to support giving the tendered instruction.

The trial court would have committed reversible error had it given the instruction. See Watts

v. State, 885 N.E.2d 1228 (Ind. 2008) (it is reversible error to give a voluntary manslaughter

instruction where there is no evidence of sudden heat).

                                              2.

       Williams also claims that his sixty-five year executed sentence is inappropriate in light

of the nature of the offense and the character of the offender. We have the constitutional

authority to revise a sentence if, after careful consideration of the trial court’s decision, we

conclude the sentence is inappropriate in light of the nature of the offense and character of

the offender. See Ind. Appellate Rule 7(B); Anglemyer v. State, 868 N.E.2d 482 (Ind.2007),

clarified on reh’g, 875 N.E.2d 218. Even if a trial court follows the appropriate procedure in

arriving at its sentence, we maintain the constitutional power to revise a sentence we find

inappropriate. Hope v. State, 834 N.E.2d 713 (Ind. Ct. App. 2005). Although we are not

required under App. R. 7(B) to be “extremely” deferential to a trial court’s sentencing

decision, we recognize the unique perspective a trial court brings to such determinations.

Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). On appeal, Williams bears

the burden of persuading us that his sentence is inappropriate. Rutherford v. State, 866

N.E.2d 867.


                                              13
       Turning to the nature of the offense, prior to killing Kim, Williams caused her to

experience pain such that she screamed and cried. Kim was killed while in a defensive

position, trying to protect herself. After Kim was wounded in a manner that left her

incapacitated, Williams fired another shot at her, this time in the face at close range. The

crime was committed in the family home and while Williams was aware that his two sons

were present. Williams has failed to carry his burden of establishing that the sentence is

inappropriate in regard to the nature of the offense.

       Turning to the character of the offender, the trial court took into consideration and

explicitly found that Williams’s military record, employment history, and lack of criminal

record were mitigating circumstances. The trial court also took into consideration, however,

the fact that Williams violated his position of trust with Kim by killing her in the family’s

home, and did so with her children present. Indeed, T.W. heard his mother’s screams of pain

and saw her lifeless body in the living room of the family’s home. Williams attempted to

orphan his children by shooting himself after murdering their mother. Williams attacked

Deputy Bledsoe and engaged in a struggle with him, after Deputy Bledsoe gained entry into

the house. Williams has failed to carry his burden of establishing that his sentence is

inappropriate in this regard as well.

       Judgment affirmed.

NAJAM, J., and BRADFORD, J., concur.




                                             14
