      MEMORANDUM DECISION
                                                                              FILED
      Pursuant to Ind. Appellate Rule 65(D),
      this Memorandum Decision shall not be                              Aug 07 2018, 5:39 am

      regarded as precedent or cited before any                               CLERK
                                                                          Indiana Supreme Court
      court except for the purpose of establishing                           Court of Appeals
                                                                               and Tax Court
      the defense of res judicata, collateral
      estoppel, or the law of the case.


      ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      William Byer, Jr.                                        Curtis T. Hill, Jr.
      Byer & Byer                                              Attorney General of Indiana
      Anderson, Indiana
                                                               George P. Sherman
                                                               Supervising Deputy Attorney
                                                               General
                                                               Indianapolis, Indiana



                                                 IN THE
          COURT OF APPEALS OF INDIANA

      Mark A. Emerson,                                         August 7, 2018
      Appellant-Defendant,                                     Court of Appeals Case No.
                                                               48A02-1706-CR-1430
              v.                                               Appeal from the Madison Circuit
                                                               Court
      State of Indiana,                                        The Honorable Mark K. Dudley,
      Appellee-Plaintiff.                                      Judge
                                                               Trial Court Cause No.
                                                               48C06-1506-MR-962



      Mathias, Judge.


[1]   Following a jury trial in Madison Circuit Court, Mark A. Emerson

      (“Emerson”) was convicted of one count of murder, four counts of Level 3

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018       Page 1 of 25
      felony kidnapping, and one count each of Level 5 felony intimidation, Level 5

      felony battery by means of a deadly weapon, Level 6 felony auto theft, and

      Class A misdemeanor interfering with the reporting of a crime. Emerson

      appeals and presents two issues for our review, which we restate as: (1) whether

      the trial court abused its discretion in instructing the jury, and (2) whether the

      State presented evidence sufficient to support Emerson’s convictions for

      kidnapping.

[2]   We affirm.


                                 Facts and Procedural History
[3]   In June 2015, Emerson and his then-wife Lara had separated but not yet

      divorced. The two had one child together, and Lara had two other children

      from a previous relationship. After the split, Lara and her children remained in

      the marital home in Anderson, while Emerson stayed with a friend in

      Indianapolis. At this time, Lara was in a romantic relationship with Cody Gay

      (“Gay”). Emerson was aware that Lara was dating Gay and that Lara had been

      in sexual relationships with other men.


[4]   On June 21, 2015, Emerson sent Lara a text message asking if he could come

      over to the house to see the children for Father’s Day, a request she denied.

      Later that day, she had a friend, Willard Chilton (“Chilton”), drive her to a

      local auto dealership to pick up her vehicle, which had been in the shop. After

      picking up the vehicle, she stopped at a Walmart. But when she came back out

      of the store, she noticed that the left side tires of her vehicle were flat. Lara

      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 2 of 25
      called Chilton, who came to pick her up. Chilton told Lara that she could

      borrow his car after dropping him off at work. Lara then drove Chilton to work

      and went to Gay’s apartment afterward. At Gay’s apartment, her cell phone

      began to lock her out and repeatedly ask for a passcode. Although she did not

      know it at the time, Emerson later told Lara that he had access to her phone

      and had been locking her out. Lara drove Gay and her children back to her

      home. She put the children in the play room to watch a movie while she and

      Gay went to her bedroom in the basement to engage in sexual activity.


[5]   Emerson knew that Lara and Gay were on their way to Lara’s house, as he had

      access to her phone messages. Emerson bought an air pistol that looked like a

      real firearm so that he could frighten Gay. He had also stopped by Lara’s home

      earlier in the day and placed a machete in the basement because he thought he

      “might have to have a weapon.” Tr. Vol. 3, p. 74. He also placed a hatchet,

      which he already owned, inside the garage. He then waited behind the garage

      as Lara and Gay arrived.


[6]   As Lara and Gay were engaged in sexual activities, they heard a loud bang

      come from upstairs as Emerson came down the stairs and into the bedroom,

      brandishing the air pistol and the machete. Emerson caught the couple engaged

      in sexual activity and told Lara that she “could have waited ‘til we were at least

      divorced[.]” Tr. Vol. 1, p. 143. Gay backed up from the bed on which Lara was

      lying and held up his hands. Gay claimed that he thought Lara was divorced

      and stated, “If I was in your situation, I’d be mad.” Id. Emerson with the pistol



      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 3 of 25
      still pointed at Gay’s head, pulled the trigger several times, shooting Gay with

      BBs. Only then did Lara realize the pistol was an air pistol and not a firearm.


[7]   Emerson dropped the gun and began to swing the machete at Gay, who

      defended himself by holding up his arms. Gay was injured but managed to take

      the machete away from Emerson. Emerson then began to attack Gay with the

      hatchet, which he brought with him from the garage. Gay was again able to

      disarm Emerson by taking the hatchet from him. Emerson then pulled out a

      knife from his pocket. Gay asked Emerson if he could wash the blood off his

      hand, which had sustained a substantial cut as a result of grabbing the machete.

      Emerson agreed and told Gay to go over to a nearby sink.


[8]   As the two men talked by the sink, Lara asked them to give the weapons to her,

      but they declined. As Gay washed the blood off his hands, Lara grabbed her

      phone to call 911, but Emerson snatched the phone from her hands. Gay then

      “jumped right on top of [Emerson].” Id. at 151. Although Gay was armed with

      the machete and hatchet, he did not strike Emerson with these weapons.

      Emerson stabbed Gay in the chest with the knife. Lara ran up the stairs, and

      heard Gay shout, “Oh my God, Lara, call the cops!” Id. at 151–52. Lara ran

      outside to seek assistance but saw no one. Emerson then followed her outside,

      covered in blood, and told her that Gay was bleeding profusely. Emerson asked

      Lara, who had first aid training in the Army National Guard, to help him.


[9]   When Lara went back downstairs, she saw Gay at the bottom of the stairs lying

      in a pool of blood. Gay’s knife wound was still bleeding profusely, and Lara


      Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 4 of 25
       attempted to stop the bleeding by pressing a towel on the wound. Lara told

       Emerson that they needed to telephone the police, and Emerson initially

       agreed, saying, “Yeah, we’ll call the cops.” Id. at 156. He then went upstairs for

       a few minutes as Lara tended to the dying Gay. Lara saw Gay’s phone and

       picked it up to call for help, but the phone was locked. Emerson returned

       downstairs, saw Lara with the phone, took it from her, and threw it across the

       bed. Emerson then spoke of cleaning up and leaving the scene, saying, “We’re

       gonna clean up. We’re gonna get outta here.” Id. Lara initially objected. She

       soon realized, however, that Emerson would not let her leave him, so she

       agreed to his plan, and the two attempted to clean the blood off their hands.


[10]   After cleaning up, Emerson and Lara went upstairs. Emerson still had the knife

       in his pocket, and Lara attempted to grab the knife from him. When she did,

       Emerson grabbed her by the hair and made her go back downstairs. Emerson

       then began to talk about leaving and suggested that they dispose of Gay’s body.

       Lara objected to this plan, so Emerson instead covered Gay’s body with a

       blanket. Lara was scared of Emerson, so when he told her to prepare to leave

       the house, she got the children and prepared to leave. Lara’s thought at that

       time was, “if we got in the front yard with the kids, I could try again and

       scream for help. And at the same time, I was also scared. I was just gonna do

       everything he told me to do.” Id. at 161.


[11]   Lara testified that, once they got in the front yard:


               I started screaming, just looking around screaming for someone
               to come out here and call the cops. And then [Emerson] looked

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 5 of 25
               at me with this extreme look of panic on his face and said that we
               needed to just get in the car. And he told me that he would let me
               drive to the police station.


       Id. at 162.


[12]   Once the children were in the car, Lara got into the driver’s seat and began to

       drive. When she asked Emerson if she could go to the police station like he

       said, Emerson responded, “No.” Id. at 189. Instead, Emerson stated that he

       wanted to drive to Canada. Because Emerson still had the knife in his hands at

       his side, Lara complied.


[13]   Lara drove until she had to stop to refuel the car. When she did, Emerson took

       the car keys with him into the gas station to pay. Lara did not attempt to flee

       because she was afraid that Emerson would kill her if she did. As they

       continued northward, Emerson tore the OneStar system out of the vehicle so

       that they could not be tracked. That night, they pulled the car into a field in the

       country to sleep. Emerson stayed awake until Lara fell asleep before he slept.

       The next morning Emerson got out of the car. Seeing a chance to escape, Lara

       jumped into the driver’s seat and tried to drive away. Emerson, however, was

       able to quickly get back into the car before Lara could get away. Emerson

       threatened Lara with the knife and warned her “not to pull anything like that

       ever[] again.” Id. at 196.


[14]   As they continued to drive north, Emerson told Lara that, once they got to

       Canada, he would let her and the children go. In Minnesota, the car began to

       run low on fuel again, but neither Emerson nor Lara had enough money to buy
       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 6 of 25
       gasoline. Lara suggested that they stop at a Walmart, steal something inside,

       then return it for a gift card they could use to purchase gasoline. Emerson

       agreed, but took the children with him inside, apparently believing that Lara

       would not run away if he had the children. Lara, however, had already planned

       to try to find help once Emerson went inside the store.


[15]   Once Emerson was inside, Lara ran away from the car and went to a nearby car

       dealership and asked them if she could use their telephone to call 911. The

       dealership employees allowed Lara to call 911, and Lara told the dispatcher

       that, “I think he killed him, and he kidnapped me and my kids and took us all

       the way here, and he’s trying to make it to Canada. And he took my kids into

       Walmart[,] and this is the first time I got to get away[.]” Id. at 207. Police from

       Hermantown, Minnesota arrived on the scene and arrested Emerson as he

       exited the store.


[16]   The Minnesota police advised Emerson of his Miranda rights and questioned

       him. Emerson proceeded to give them his version of events. Emerson told the

       police that he knew he was not supposed to be at Lara’s house.1 Emerson

       admitted that he knew Gay was there and bought the air pistol to scare him. He

       also admitted that he placed the machete in the basement earlier so he could

       have access to a weapon when he confronted Gay. Emerson also told the police

       that when he confronted Gay, he did not believe Gay’s protestations that he



       1
        In fact, both Lara and Emerson were under the mistaken belief that there was a protective order issued
       against Emerson.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018           Page 7 of 25
       was unaware that Emerson and Lara were still married, as he had had previous

       conversations with Gay in which he referred to Lara as Emerson’s wife.

       Emerson claimed that Gay was first injured trying to take the machete away

       from him and that he then grabbed the hatchet. Emerson claimed that, after

       cleaning his hand, Gay lunged at him and took the hatchet away from him and

       that he stabbed Gay only when Gay raised the hatchet into the air to attack

       him. Emerson claimed that he did not call the police because his phone was

       dead, Gay’s phone was locked, and Lara’s phone was not available. Emerson

       also told the police that Lara had told him to run so he would not have to go to

       prison. However, Emerson further admitted that Lara was afraid of him and

       that the car they took was not Lara’s or Gay’s but belonged to Lara’s friend.


[17]   The State subsequently charged Emerson as follows: Count I, Level 5 felony

       intimidation; Count II, Level 5 felony battery by means of a deadly weapon;

       Count III, Class A misdemeanor interfering with the reporting of a crime;

       Count IV, murder; Counts V–VIII, Level 3 felony kidnapping; and Count IX,

       Level 6 felony auto theft.


[18]   A jury trial was held on April 25–28 and May 1–4, 2017. At the conclusion of

       the presentation of evidence, Emerson tendered jury instructions on the defense

       of mistake of fact, voluntary manslaughter, and involuntary manslaughter. The

       trial court rejected these instructions as unsupported by the evidence. Emerson

       also tendered an instruction on self-defense, but the trial court instead chose to

       give to the jury its own self-defense instruction, which was based on the pattern

       jury instruction on self-defense. At the conclusion of the trial, the jury found

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 8 of 25
       Emerson guilty as charged. On June 1, 2017, the trial court sentenced Emerson

       to an aggregate term of eighty-six years and nine months of incarceration.2

       Emerson now appeals.


                                         Discussion and Decision
[19]   On appeal, Emerson argues that the trial court abused its discretion when it

       declined to give his tendered jury instructions and also argues that the evidence

       is insufficient to support his convictions for kidnapping.


                                                 I. Jury Instructions

[20]   It is well settled that instructing the jury lies within the trial court’s sound

       discretion, and we review the trial court’s decisions with regard to jury

       instructions only for an abuse of that discretion. Shelby v. State, 986 N.E.2d 345,

       360 (Ind. Ct. App. 2013), trans. denied. In determining whether the trial court

       abused its discretion in refusing to give a tendered instruction we consider: (1)

       whether the instruction correctly states the law; (2) whether there is evidence in

       the record supporting the instruction; and (3) whether the substance of the

       instruction is covered by other instructions. Id. To constitute an abuse of

       discretion, an instruction that is given to the jury must be erroneous, and the


       2
         Specifically, the trial court imposed the following sentences: Count I, four and one-half years; Count II, four
       and one-half years; Count III, eleven months; Count IV, sixty years; Counts V–VIII, twelve and one-half
       years each; and Count IX, twenty-one months. The sentences on Counts I, II, and IV were ordered to run
       concurrently for a total of sixty years; the sentences on Counts III and V were ordered to be served
       concurrently with each other, but consecutive to the sentences on Counts I, II, and IV, for an additional
       twelve and one-half years; the sentences on Counts VI, VII, and VIII were ordered to run for a concurrent
       twelve and one-half years, but consecutive to the sentences on Counts I, II, and IV and on Counts III and V;
       and the sentence on Count XI was ordered to be served consecutively to all other counts, for an aggregate
       sentence of eighty-six years and nine months.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018               Page 9 of 25
       instructions viewed as a whole must misstate the law or otherwise mislead the

       jury. Id. When a defendant seeks reversal based on instructional error, he must

       demonstrate a reasonable probability that his substantial rights have been

       adversely affected. Id.


[21]   Here, Emerson claims that the trial court abused its discretion by refusing three

       of his tendered instructions covering the subjects of mistake of fact, self-defense,

       voluntary manslaughter, and involuntary manslaughter. We address each of

       these tendered instructions in turn.


       A. Mistake of Fact

[22]   Emerson first claims that, with regard to the auto theft charge, the trial court

       should have instructed the jury on the defense of mistake of fact. Pursuant to

       Indiana Code section 35-41-3-7, “[i]t is a defense that the person who engaged

       in the prohibited conduct was reasonably mistaken about a matter of fact, if the

       mistake negates the culpability required for commission of the offense.” Once

       the State has made a prima facie case of guilt, “the burden is on the defendant to

       establish an evidentiary predicate of his mistaken belief of fact, which is such

       that it could create a reasonable doubt in the fact-finder’s mind that the

       defendant had acted with the requisite mental state.” Saunders v. State, 848

       N.E.2d 1117, 1121 (Ind. Ct. App. 2006) (citing Hoskins v. State, 563 N.E.2d 571,

       575 (Ind. 1990)), trans. denied. “Upon invoking mistake of fact as a defense, the

       burden shifts to the defendant to satisfy three elements: ‘(1) that the mistake be

       honest and reasonable; (2) that the mistake be about a matter of fact; and (3)


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 10 of 25
       that the mistake negate the culpability required to commit the crime.’” Chavers

       v. State, 991 N.E.2d 148, 151 (Ind. Ct. App. 2013) (quoting Potter v. State, 684

       N.E.2d 1127, 1135 (Ind. 1997)), trans. denied.


[23]   Still, the State retains the ultimate burden of proving beyond a reasonable doubt

       every element of the charged crime, including culpability or intent, which

       would in turn entail proof that there was no reasonably held mistaken belief of

       fact. Saunders, 848 N.E.2d at 1121 (citing Hoskins, 563 N.E.2d at 575–76). And

       the State may meet its burden by directly rebutting evidence, by affirmatively

       showing that the defendant made no such mistake, or by simply relying upon

       evidence from its case-in-chief. Id. (citing Bergmann v. State, 486 N.E.2d 653,

       660 (Ind. Ct. App. 1985)).


[24]   To convict Emerson of auto theft, the State was required to prove that he

       knowingly or intentionally exerted unauthorized control over Chilton’s motor

       vehicle with the intent to deprive Chilton of the vehicle’s value or use. See Ind.

       Code § 35-43-4-2.5(b)(1) (2014)3; Appellant’s App. p. 22. Emerson argues that

       there was no evidence indicating that Lara did not have authority to use

       Chilton’s auto without restriction. Thus, he argues that he was mistaken with

       regard to the scope of Lara’s permission to use the car, thereby vitiating any

       possible intent he may have had to use the vehicle without authorization. The

       State makes no argument that Emerson’s tendered mistake-of-fact instruction



       3
        This statute was repealed effective July 1, 2018. See P.L. 176-2018, § 7. The theft of a motor vehicle is now
       encompassed in the general theft statute. See Ind. Code § 35-43-4-2 (2018).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018             Page 11 of 25
       contained an incorrect statement of law.4 It instead argues that there was no

       evidence in the record to support giving the instruction. We agree with the

       State.


[25]   Lara testified that she had Chilton’s permission to drive his car to and from

       work the following day, and Chilton testified that Lara was supposed to return

       his car the following day and that he did not give Lara or Emerson permission

       to drive his car to Minnesota. Thus, contrary to Emerson’s claims, there was

       ample evidence adduced at trial that he did not have permission to drive

       Chilton’s vehicle and that Lara’s permission to use the car was limited to

       driving to and from work for one day. Emerson testified that although he did

       not personally know who owned the car, he knew it was not his. His testimony

       also indicates that he knew it did not belong to Lara, as he claimed that Lara

       told him she could use the car “as long as she needed while her car was done.”

       Tr. Vol. VI, p. 218. Emerson argues that this testimony raised the mistake-of-

       fact defense regarding his knowledge of the scope of Lara’s permission to use




       4
           Emerson’s tendered instruction provided:

                  The defense of mistake of fact is defined as follows:
                  It is a defense that the person who engaged in the prohibited conduct was reasonably
                  mistaken about a matter of fact, if the mistake negates the culpability required for the
                  commission of the offense.
                  The reasonable mistake about a fact must have prevented the defendant from[:]
                  forming the intent to commit the offense of which he is charged, or
                  knowing that the offense charged was being committed, or
                  being reckless in his conduct.
                  The State has the burden of disproving this defense beyond a reasonable doubt.
       Appellant’s App. p. 70.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018                 Page 12 of 25
       the car. But the question before the jury was not the extent of Lara’s permission

       to use Chilton’s car. The question was whether Emerson exerted unauthorized

       control over Chilton’s vehicle with the intent to deprive Chilton of the vehicle’s

       value or use. Although Emerson claims the he did not drive the car, he forced

       Lara to do so at knifepoint. Suffice it to say that there was no evidence that

       Emerson was honestly and reasonably mistaken that he had permission to use

       the car to force Lara to drive him away from a murder scene and flee to

       Canada.


[26]   Thus, there was no evidence that would support giving a mistake-of-fact

       instruction regarding Emerson’s claim that he believed that either he or Lara

       had unrestricted use of the vehicle. Accordingly, the trial court did not abuse its

       discretion by refusing Emerson’s tendered instruction on the defense of mistake

       of fact.


       B. Self-Defense Instruction

[27]   Emerson also claims that the trial court abused its discretion by failing to give

       the jury his tendered instruction on self-defense, which provided in relevant

       part:


               The defense of self-defense is defined by law as follows:

               a. A person is justified in using reasonable force against another
               person to protect himself or a third person from what he
               reasonably believes to be the imminent use of unlawful force.

                  However, a person is justified in using deadly force only if he
               reasonably believes that that force is necessary to prevent serious

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 13 of 25
        bodily injury to himself or a third person or the commission of a
        felony.

           No person in this State shall be placed in legal jeopardy of any
        kind whatsoever for protecting himself or his family by
        reasonable means necessary.

        b. A person is justified in using reasonable force, including
        deadly force, against another person if he reasonably believes that
        the force is necessary to prevent or terminate the other person’s
        entry of or attack on his dwelling or curtilage.

        c. With respect to property other than a dwelling or curtilage, a
        person is justified in using reasonable force against another
        person if he reasonably believes that the force is necessary to
        immediately prevent or terminate the other person’s trespass on
        or criminal interference with property lawfully in his possession,
        lawfully in possession of a member of his immediate family, or
        belonging to a person whose property he has authority to protect.
        However, a person is not justified in using deadly force unless the
        force is justified under subsection (a) of this section.

        d. Notwithstanding subsections (a), (b), and (c) of this section, a
        person is not justified in using force if:

            1. he is committing, or is escaping after the commission, of a
            crime;

            2. he provokes unlawful action by another person with intent
            to cause bodily injury to the other person; or

            3. he has entered into combat with another person or is the
            initial aggressor, unless he withdraws from the encounter and
            communicates to the other person his intent to do so and the
            other person nevertheless continues or threatens to continue
            unlawful action.

        The State has the burden of disproving this defense beyond a
        reasonable doubt.

Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 14 of 25
       Appellant’s App. p. 72.


[28]   The trial court instead gave the following self-defense instruction:


               USE OF FORCE TO PROTECT A PERSON

               A person may use reasonable force against another person to
               protect himself from what he reasonably believes to be the
               imminent use of unlawful force.

               A person is justified in using deadly force, and does not have a
               duty to retreat, only if he reasonably believes that deadly force is
               necessary to prevent serious bodily injury to himself.

               However a person may not use force if:

               • He is committing a crime that is directly and immediately
               connected to the confrontation, or

               • He provokes a fight with another person with intent to cause
               bodily injury to that person, or

               • He has willingly entered into a fight with another person or
               started the fight, unless he withdraws from the fight and
               communicates to the other person his intent to withdraw and the
               other person nevertheless continues or threatens to continue the
               fight.

               The State has the burden of proving beyond a reasonable doubt
               that the Defendant did not act in self-defense.


       Id. at 64–65 (emphasis added).


[29]   Emerson’s only complaint about the trial court’s instruction is that it includes

       the word “only” when describing when a person is justified in using deadly

       force. That is, the trial court’s instruction informed the jury that “[a] person is


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 15 of 25
       justified in using deadly force, and does not have a duty to retreat, only if he

       reasonably believes that deadly force is necessary to prevent serious bodily

       injury to himself.” Id. (emphasis added). The word “only” does not appear in

       the text of the self-defense statute itself.5 Thus, Emerson contends that the trial

       court’s instruction was an incorrect statement of the law.


[30]   The addition of the word “only,” however, does not materially alter the

       meaning of the instruction. Informing the jury that a person is justified in using

       deadly force if he reasonably believes that such force is necessary to prevent

       serious bodily injury is not meaningfully different from informing the jury that a

       person is justified in using deadly force only if he reasonably believes that such

       force is necessary to prevent serious bodily injury. Both convey the same

       essential meaning that the defendant be required to have a reasonable belief that

       deadly force is necessary to prevent serious bodily injury before he may resort to

       the use of deadly force.




       5
         Prior to 2006, the self-defense statute provided in relevant part “a person is justified in using deadly force
       only if the person reasonably believes that that force is necessary to prevent serious bodily injury to the
       person or a third person or the commission of a forcible felony.” I.C. § 35-41-3-2(a) (2002) (emphasis added).
       Effective July 1, 2006, the statute was amended to provide in relevant part, “a person: (1) is justified in using
       deadly force; and (2) does not have a duty to retreat; if the person reasonably believes that that force is
       necessary to prevent serious bodily injury to the person or a third person or the commission of a forcible
       felony.” I.C. § 35-41-3-2(a) (2006). Thus, the word “only” was removed from the statute in 2006, but as
       explained infra, this did not materially change the meaning of the statute.
       The statute was amended again in 2012, moving the language at issue from subsection (a) to (c). It was
       amended yet again the following year, but the changes did not affect subsection (c).

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018              Page 16 of 25
[31]   We further note that the language of the trial court’s self-defense instruction

       was taken from the Indiana Pattern Jury Instructions.6 Compare Appellant’s

       App. pp. 64–65 with Indiana Pattern Jury Instruction 10.0300. “The Indiana

       Pattern Jury Instructions are prepared under the auspices of the Indiana Judges

       Association in conjunction with the Indiana Judicial Conference Criminal and

       Civil Instruction Committees. Although they are not formally approved for use,

       they are tacitly recognized by Indiana Trial Rule 51(E).” Campbell v. State, 19

       N.E.3d 271, 275 n.3 (Ind. 2014). Thus, although the Pattern Jury Instructions

       have not been formally approved by our supreme court, and certain pattern




       6
           The pattern jury instruction on self-defense provides:

                  It is an issue whether the Defendant acted in [self-defense] [defense of another
                  person].
                  A person may use reasonable force against another person to protect (himself/herself from
                  what he/she) or (someone else) from what the Defendant reasonably believes to be the
                  imminent use of unlawful force.
                  A person is justified in using deadly force, and does not have a duty to retreat, only if
                  he/she reasonably believes that deadly force is necessary [to prevent serious bodily injury
                  to himself/herself or a third person] [to prevent the commission of a forcible felony].
                  [However, a person may not use force if:
                  (he/she is committing a crime that is directly and immediately connected to the
                  (confrontation) (use a descriptive term based on evidence). (or)
                  (he/she is escaping after the commission of a crime that is directly and immediately
                  connected to the (confrontation) (use a descriptive term based on evidence).)
                  (or)
                  (he/she provokes a fight with another person with intent to cause bodily injury to that
                  person).
                  (or)
                  (he/she has willingly entered into a fight with another person or started the fight, unless he
                  withdraws from the fight and communicates to the other person his intent to withdraw and
                  the other person nevertheless continues or threatens to continue the fight).]
                  The State has the burden of proving beyond a reasonable doubt that the Defendant did not
                  act in self-defense.
       Indiana Pattern Jury Instruction 10.0300. The trial court’s self-defense instruction merely eliminated the
       introductory sentence from this pattern instruction.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018                Page 17 of 25
       instructions have even been held to not be a correct statement of the law,

       pattern jury instructions are given “preferential treatment” during litigation, and

       the preferred practice is to use the pattern instructions. Harrison v. State, 32

       N.E.3d 240, 252 n.5 (Ind. Ct. App. 2015), trans. denied.


[32]   The trial court here followed the preferred practice to use the pattern instruction

       on self-defense, and the trial court’s instruction was not an incorrect statement

       of the law. Accordingly, the trial court did not abuse its discretion in instructing

       the jury regarding self-defense.


       C. Voluntary Manslaughter

[33]   Emerson next contends that the trial court erred by failing to instruct the jury

       regarding the lesser-included offense of voluntary manslaughter. As set forth in

       Wright v. State, 658 N.E.2d 563, 566–67 (Ind. 1995), a trial court should instruct

       the jury regarding a lesser-included offense if the lesser offense is either

       inherently or factually included in the greater offense and there is a serious

       evidentiary dispute about an element that distinguishes the two offenses.


[34]   A person who knowingly or intentionally kills another human being commits

       murder. Ind. Code § 35-42-1-1(1). But a person who knowingly or intentionally

       kills another human being while acting under “sudden heat” commits voluntary

       manslaughter. Ind. Code § 35-42-1-3(a). “Sudden heat occurs when a defendant

       is provoked by anger, rage, resentment, or terror, to a degree sufficient to

       obscure the reason of an ordinary person, prevent deliberation and

       premeditation, and render the defendant incapable of cool reflection.” Conner v.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 18 of 25
       State, 829 N.E.2d 21, 24 (Ind. 2005). “Sudden heat excludes malice, and neither

       mere words nor anger, without more, provide sufficient provocation.” Id. Since

       voluntary manslaughter is simply murder mitigated by evidence of sudden heat,

       it is an inherently included offense of murder. Wilkins v. State, 716 N.E.2d 955,

       956–57 (Ind. 1999); see also Watts v. State, 885 N.E.2d 1228, 1232 (Ind. 2008)

       (“[V]oluntary manslaughter is a lesser-included offense of murder[.]”).


[35]   The only question before the trial court was therefore whether there was a

       serious evidentiary dispute regarding the existence of sudden heat. And here,

       the trial court made an explicit finding that there was an absence of any

       evidence of sudden heat. Tr. Vol. 7, pp. 27–29. Thus, we review the trial court’s

       decision on this matter only for an abuse of discretion. Washington v. State, 808

       N.E.2d 617, 626 (Ind. 2004).


[36]   Emerson argues that there was a serious evidentiary dispute as to the existence

       of sudden heat because the evidence showed that he walked in on his estranged

       wife and her lover engaged in sexual activity. We have stated before that

       “discovery of alleged infidelity can ‘introduce the element of sudden heat.’”

       Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App. 2010) (quoting Evans v.

       State, 727 N.E.2d 1072, 1077 (Ind. 2000)), trans. denied. Thus, if Emerson had

       simply walked in unawares and caught Lara with Gay, the evidence might have

       supported a jury instruction on voluntary manslaughter. But this is not what

       happened.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 19 of 25
[37]   Instead, Emerson was already well aware that Lara was dating Gay and

       admitted that he knew she had been in sexual relationships with other men.

       Emerson stored weapons in the home and even bought an air pistol in his plan

       to scare Gay. We agree with the State that this demonstrates a degree of

       planning and forethought that belies a claim of sudden heat. Moreover,

       Emerson himself testified that he was “[n]ot really mad” about Lara and Gay’s

       sexual activity because he had known about it “for a while.” Tr. Vol. 6, p. 198.

       Under these facts and circumstances, the trial court did not abuse its discretion

       in finding that there was no serious evidentiary dispute regarding the existence

       of sudden heat. Therefore, the trial court did not abuse its discretion in

       declining to instruct the jury with regard to the lesser-included offense of

       voluntary manslaughter.


       D. Involuntary Manslaughter

[38]   Emerson’s final claim of evidentiary error is that the trial court abused its

       discretion by declining his tendered instruction on the lesser-included offense of

       involuntary manslaughter. Involuntary manslaughter is committed when a

       person kills another human being while committing or attempting to commit

       (1) a Level 5 or Level 6 felony that inherently poses a risk of serious bodily

       injury, (2) a Class A misdemeanor that inherently poses a risk of serious bodily

       injury, or (3) battery. Ind. Code § 35-42-1-4(b). In contrast to voluntary

       manslaughter, involuntary manslaughter is not an inherently included lesser

       offense of murder. Evans, 727 N.E.2d at 1081. However, involuntary

       manslaughter may be a factually included lesser offense of murder if the

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 20 of 25
       charging information alleges that the killing was accomplished by means that

       would be a battery. Id. Where, however, the charging information merely

       alleges that the defendant killed the victim, without specifically alleging that the

       killing was accomplished by means that would be a battery, involuntary

       manslaughter is not a factually included offense. See Champlain v. State, 681

       N.E.2d 696, 702 (Ind. 1997) (holding that involuntary manslaughter was not a

       factually included lesser offense of the charged crime of murder because the

       charging information did not assert a battery but merely alleged that the

       defendant knowingly killed the victim).


[39]   Here, the charging information alleged simply that “Mark Alyn Emerson

       knowingly or intentionally killed Cody Gay.” Appellant’s App. p. 51. This does

       not allege a battery, nor does it allege a Class A misdemeanor, Level 6 felony,

       or Level 5 felony that inherently poses a risk of serious bodily injury.

       Accordingly, involuntary manslaughter was not a factually included offense of

       the charged crime of murder, and the trial court properly declined to instruct

       the jury on involuntary manslaughter.


[40]   Emerson appears to argue that involuntary manslaughter was factually included

       in the charged crime of murder because the State also charged him with Level 5

       felony battery by means of a deadly weapon. See Appellant’s Brief at 33

       (arguing that “involuntary manslaughter is a lesser included offense of the

       charged battery and murder.”). However, the charged battery alleged that

       Emerson battered Gay with a “BB gun or a machete or a hatchet.” Appellant’s

       App. p. 50. Notably, none of these are the weapon that inflicted the fatal wound

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 21 of 25
       to Gay, which was instead a knife. Thus, the State charged Gay with a separate

       and distinct act of battery—the initial attack on Gay with the air pistol,

       machete, and hatchet—in addition to the subsequent stabbing with the knife.

       The State did not allege that the killing was accomplished by means that would

       constitute a battery. Therefore, despite the additional charge of battery, the

       information charging Emerson with murder did not factually include the lesser-

       included offense of involuntary manslaughter, and the trial court did not abuse

       its discretion in rejecting Emerson’s tendered instruction on involuntary

       manslaughter.


                                     II. Sufficiency of the Evidence

[41]   Emerson also contends that the State failed to present evidence sufficient to

       support his convictions for kidnapping. When reviewing a claim that the

       evidence is insufficient to support a conviction, we neither reweigh the evidence

       nor judge the credibility of the witnesses. Harrison, 32 N.E.3d at 247. We

       instead respect the exclusive province of the jury to weigh any conflicting

       evidence. Id. We consider only the probative evidence supporting the verdict

       and any reasonable inferences which may be drawn from this evidence, and we

       will affirm if the probative evidence and reasonable inferences drawn therefrom

       could have allowed a reasonable trier of fact to find the defendant guilty beyond

       a reasonable doubt. Id.


[42]   To convict Emerson of kidnapping, the State was required to prove that he

       knowingly or intentionally removed Lara and the three children by fraud,

       enticement, force, or threat of force from one place to another, and committed
       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 22 of 25
       that offense while armed with a deadly weapon, i.e., a knife. See Ind. Code §§

       35-42-3-2(a), (b)(2)(A); Appellant’s App. pp. 52–53. Emerson argues that there

       was no evidence that he removed any individual by a threat of force or that he

       was armed with a deadly weapon. We disagree.


[43]   Emerson claims that Lara was not forced against her will to travel with him and

       that she participated in his plan to escape. But the evidence favorable to the

       jury’s verdict shows that Emerson was armed with a knife—the very knife he

       had just used to fatally stab Lara’s boyfriend—and that he initially told Lara

       that they would drive to the police station. When Lara asked if she could drive

       to the police station, Emerson told her no and instead that he wanted to drive to

       Canada. Lara complied because Emerson was still armed with a knife.


[44]   The evidence also reveals that Emerson was well aware that Lara was not a

       willing participant in his plans to escape. When they stopped for fuel, Emerson

       took the keys with him when he went to pay for the gasoline. After they slept in

       the car in a field, Lara attempted to drive off without Emerson after he exited

       the car. When he managed to jump in the car before Lara could leave, he

       threatened her with the knife and warned her “not to pull anything like that

       ever[] again.” Tr. Vol. 1, p. 196. Emerson was also well aware that Lara’s three

       children were in the car when he threatened Lara and asked her to drive toward

       Canada.


[45]   From this evidence, and the reasonable inferences that can be drawn from this

       evidence, the jury could reasonably conclude that Emerson knowingly removed


       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 23 of 25
       Lara and her children by the threat of force from one place to another and did

       so while armed with a knife, which is a deadly weapon.


[46]   Emerson’s citation to Clayton v. State, 658 N.E.2d 82 (Ind. Ct. App. 1995), is

       unavailing. In that case, the armed defendant approached the victim outside her

       home while she was unloading her car, which still contained two sleeping

       children: her son and her niece. Id. at 83. The defendant pointed his gun at the

       victim and demanded her money and purse. Id. The victim told the defendant

       that her purse was in the house, grabbed her niece, and went into her house with

       the defendant to find her purse. Id. Unable to find any money in the victim’s

       purse, the defendant ordered the victim to go back outside and place the keys into

       the ignition. Id. He then ordered her to get the other child out of the car. Id. at

       83–84. The victim did so, grabbed her son, and ran back into her house as the

       defendant drove her car away. Id. at 84. The defendant was subsequently

       convicted of kidnapping, burglary, robbery, and criminal confinement. Id.


[47]   On appeal, the defendant argued inter alia that the evidence was insufficient to

       support his conviction for kidnapping. A panel of this court agreed, noting that

       there was no evidence that the defendant used force to keep either of the

       children in the car. Id. at 88. Instead, the victim voluntarily took one of the

       children into her house when she went to look for her purse. Id. And the

       defendant told the victim to remove the other child from the car before driving

       away. Id. Because the defendant permitted the victim to remove one child and

       ordered the victim to remove the other before her took the car, we held that

       there was insufficient evidence to support the kidnapping conviction. Id.

       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 24 of 25
[48]   The facts of Clayton stand in stark contrast to the facts present in the case before

       us. As noted above, Emerson was aware that Lara and her children were in the

       car when he forced her at knifepoint to drive north and not stop at the police

       station as he had earlier told her. He kept the keys with him when he left the

       car, and he threatened Lara when she attempted to drive away without him.

       Accordingly, we do not find Clayton to be controlling, and we conclude that the

       State presented sufficient evidence to support Emerson’s convictions for

       kidnapping.


                                                 Conclusion
[49]   The trial court did not abuse its discretion in instructing the jury because: there

       was no evidence that would support a mistake-of-fact instruction regarding

       Emerson’s claim that he mistakenly believed that Lara had unrestricted use of

       the vehicle; the trial court’s self-defense instruction, which was based on the

       pattern jury instruction, was a correct statement of the law; there was no

       evidence supporting a finding of sudden heat and an instruction on voluntary

       manslaughter was therefore properly rejected; and the State did not allege the

       murder was accomplished by means of a battery, and involuntary manslaughter

       was therefore not a factually included offense. Lastly, the State presented

       evidence sufficient to support Emerson’s convictions for kidnapping.


[50]   Affirmed.


       Riley, J., and May, J., concur.



       Court of Appeals of Indiana | Memorandum Decision 48A02-1706-CR-1430 | August 7, 2018   Page 25 of 25
