                                                                                    FILED
                                                                            May 30 2018, 5:57 am

                                                                                    CLERK
                                                                                Indiana Supreme Court
                                                                                   Court of Appeals
                                                                                     and Tax Court




      ATTORNEYS FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
      Stephen T. Owens                                          Curtis T. Hill, Jr.
      Public Defender of Indiana                                Attorney General of Indiana
      William D. Polansky                                       George P. Sherman
      Deputy Public Defender                                    Deputy Attorney General
      Indianapolis, Indiana                                     Indianapolis, Indiana




                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Racxon Cruze McDowell,                                    May 30, 2018
      Appellant-Petitioner,                                     Court of Appeals Case No.
                                                                82A01-1710-PC-2469
              v.                                                Appeal from the Vanderburgh
                                                                Superior Court
      State of Indiana,                                         The Honorable Robert J. Pigman,
      Appellee-Respondent.                                      Judge
                                                                Trial Court Cause No. No.
                                                                82D03-1412-PC-6080



      Mathias, Judge.


[1]   Racxon Cruze McDowell (“McDowell”) was convicted of murder in 2012.

      Following his unsuccessful direct appeal, McDowell filed a petition for post-

      conviction relief, which the Vanderburgh Superior Court denied. McDowell



      Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                           Page 1 of 25
      appeals and presents three issues, which we consolidate and restate as whether

      McDowell was denied the effective assistance of trial counsel.


[2]   We affirm.


                                  Facts and Procedural History
[3]   The facts surrounding McDowell’s convictions are as follows.1 On the morning

      of June 3, 2012, McDowell called 911 to report that his girlfriend, Rachel

      Lomax (“Rachel”) was unresponsive. McDowell told the responding

      paramedic, Dylan Woods (“Woods”), that he and Rachel had been out

      drinking the night before and that when they came home from the bar, she took

      six sleeping pills and went to bed. He claimed that when he woke up, he found

      Rachel sitting naked on the toilet and not breathing. Woods initially suspected,

      based on McDowell’s story, that Rachel might have overdosed. While

      attending to Rachel, however, he noticed numerous injuries on her body. When

      confronted with these injuries, McDowell claimed that Rachel had gotten into a

      fight at the bar the night before. Woods and a responding firefighter attempted

      to perform CPR on Rachel. But the efforts to resuscitate Rachel were

      unsuccessful, and she was pronounced dead at the scene.


[4]   Woods summoned the Evansville Police Department (“EPD”) to the scene,

      who subsequently sought a search warrant. Both the police and Woods noted



      1
        A detailed statement of facts was unnecessary to address McDowell’s arguments on direct appeal. See
      McDowell v. State, 82A01-1311-CR-492, 2014 WL 3408336, slip op. at 2–3 (Ind. Ct. App. July 11, 2014). We
      therefore set forth a more detailed recitation of the facts here.

      Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                      Page 2 of 25
      that McDowell had scratches on his face. After obtaining the search warrant,

      the police examined the scene and noted a shoe print on Rachel’s shirt that was

      consistent with McDowell’s shoe. Some of Rachel’s clothing had also been

      ripped or damaged. Rachel’s blood was on the door of the bathroom and her

      right hand. Testing of Rachel’s fingernails revealed the presence of McDowell’s

      skin under her fingernails.


[5]   McDowell was taken to jail by EPD Officer Raymond Holden (“Holden”).

      McDowell asked Holden if he remembered him from a prior traffic stop. When

      Holden stated that he did not remember him, McDowell responded, “Well, you

      remember Rachel, don’t you?” Trial Tr. p. 607. When Holden asked who

      Rachel was, McDowell stated, “You know Rachel, the girl I f**kin’ killed?” Id.

      When being booked into jail, McDowell told the booking officer, “I loved the

      bitch. I killed her. I loved the bitch. I killed her.” Id. at 617.


[6]   McDowell was subsequently interviewed by police and denied any involvement

      in Rachel’s death. Instead, he claimed that she had been assaulted by a man

      and woman at the riverfront. The police confronted McDowell about

      inaccuracies in his story, and McDowell admitted his story was untrue.

      McDowell later wrote a letter to Rachel’s parents, admitting that he attacked

      her after she had punched and kicked him.


[7]   An autopsy revealed the extent of Rachel’s injuries, which were horrifying. She

      suffered black eyes and a bruise on her chin. She also had a large contusion on

      the right side of her face that was the result of a “serious injury” that itself


      Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018      Page 3 of 25
      would have caused unconsciousness and even death from internal bleeding.

      Trial Tr. pp. 189–90. The injury causing the contusion was so severe that it also

      caused multiple, potentially-fatal skull fractures and a subdural hematoma. The

      subdural hematoma caused Rachel’s brain to swell and was also a potentially

      fatal injury. Id. at 199, 217. These injuries were caused by blunt force trauma.

      Rachel also sustained bruises to her forehead, left temple, behind the left ear,

      and on her chin and neck. The autopsy also revealed an injury to the right

      temporalis muscle,2 which was so severe that it tore the muscle loose from the

      skull. Rachel also had several bruises on the top of her scalp and multiple

      bruises on her extremities.


[8]   Rachel also sustained bruises to her small and large intestines and a hematoma

      to one of her kidneys. In addition, Rachel’s breastbone was fractured as a result

      of a severe blow to the chest. Another blow caused multiple fractured ribs on

      her left side. These ribs were “displaced” fractures, where the bone was so

      damaged that it came apart. Trial Tr. p. 203. Such fractures require a significant

      amount of force. The chest injuries also caused damage to her lungs, which

      would have caused bleeding in the left lung. There was also a large laceration to

      Rachel’s liver, such that the organ was almost severed in two. This injury

      caused massive, fatal bleeding and was identified as the main cause of death.




      2
       The temporalis, or temporal muscle, is used to close the jaw. See PubMed Health, Temporalis Muscle,
      https://www.ncbi.nlm.nih.gov/pubmedhealth/PMHT0025338/.

      Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                        Page 4 of 25
[9]    On June 6, 2012, the State charged McDowell with murder, Class D felony

       obstruction of justice, and Class A misdemeanor false informing. A three-day

       jury trial commenced on August 26, 2013. At trial, the State dismissed the lesser

       two counts and proceeded only on the murder charge. During defense counsel’s

       opening statement, he admitted that McDowell and Rachel had gotten into a

       physical fight but argued that the jury should find McDowell guilty of

       involuntary manslaughter.

[10]   McDowell testified on his own behalf and claimed that he and Rachel had

       gotten into a fight about missing pills. According to him, Rachel pushed him

       and knocked him down, and he pushed her and knocked her down. He then

       locked himself in the bathroom, but Rachel began to pound on the door. When

       he opened the door, he punched Rachel in the chin; when she retaliated by

       spitting in his face, he slammed her to the ground and pressed his knee into her

       stomach to restrain her, which he believed in hindsight to be what caused the

       fatal injury to her liver. He maintained that he did not intend to kill Rachel.


[11]   McDowell’s trial counsel requested that the jury be instructed on involuntary

       manslaughter, but the trial court rejected the instruction. The trial court did,

       however, instruct the jury regarding voluntary manslaughter. In closing

       arguments to the jury, McDowell’s trial counsel argued that there was

       insufficient evidence to show that McDowell intended to kill Rachel. Focusing

       on the medical examiner’s conclusion that the cause of death was the laceration

       to the liver and loss of blood, McDowell’s counsel argued:



       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018   Page 5 of 25
               To convict [McDowell] of murder, you have to say that [he]
               knew that by pressing down on her liver with his body weight
               with his knee, and by hitting her, that he was going to kill her,
               that he knew he was going to split that liver. That’s what you got
               to get to. That’s how you got to get to murder from here. And
               that’s a big jump.


       Trial Tr. p. 756. The jury found McDowell guilty as charged, and the trial court

       subsequently sentenced McDowell to sixty-five years of incarceration.


[12]   On direct appeal, McDowell presented three issues: (1) whether the trial court

       committed fundamental error by admitting into evidence certain autopsy

       photographs and the videotape of the police interview with McDowell in which

       he stated that he had previously battered his ex-wife; (2) whether the trial court

       committed fundamental error when it admitted McDowell’s testimony

       regarding his legal status at the time of the crime and the past incident of

       domestic violence between him and his ex-wife; and (3) whether the trial court

       abused its discretion when it admitted a picture of a tattoo on McDowell’s back

       that referenced gang affiliation. McDowell v. State, 82A01-1311-CR-492, 2014

       WL 3408336, slip op. at 1 (Ind. Ct. App. July 11, 2014). We rejected

       McDowell’s appellate claims and affirmed his conviction. Id. at 3.


[13]   On December 22, 2014, McDowell filed a pro se petition for post-conviction

       relief. On December 7, 2016, McDowell, now represented by counsel from the

       Indiana Public Defender’s Office, filed an amended petition for post-conviction

       relief. The post-conviction court held an evidentiary hearing on the petition on



       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018   Page 6 of 25
       February 17, 2017, and entered findings of fact and conclusions of law on

       September 29, 2017, denying McDowell’s petition. McDowell now appeals.


                            Post-Conviction Standard of Review
[14]   Our standard of review of claims that a post-conviction court erred in denying

       relief is well settled:


               Post-conviction proceedings are not “super appeals” through
               which convicted persons can raise issues they failed to raise at
               trial or on direct appeal. Rather, post-conviction proceedings
               afford petitioners a limited opportunity to raise issues that were
               unavailable or unknown at trial and on direct appeal. A post-
               conviction petitioner bears the burden of establishing grounds for
               relief by a preponderance of the evidence. On appeal from the
               denial of post-conviction relief, the petitioner stands in the
               position of one appealing from a negative judgment. To prevail
               on appeal from the denial of post-conviction relief, the petitioner
               must show that the evidence as a whole leads unerringly and
               unmistakably to a conclusion opposite that reached by the post-
               conviction court.


               Where, as here, the post-conviction court makes findings of fact
               and conclusions of law in accordance with Indiana Post-
               Conviction Rule 1(6), we cannot affirm the judgment on any
               legal basis, but rather, must determine if the court’s findings are
               sufficient to support its judgment. Although we do not defer to
               the post-conviction court’s legal conclusions, we review the post-
               conviction court’s factual findings under a clearly erroneous
               standard. Accordingly, we will not reweigh the evidence or judge
               the credibility of witnesses, and we will consider only the
               probative evidence and reasonable inferences flowing therefrom
               that support the post-conviction court’s decision.



       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018   Page 7 of 25
       Manzano v. State, 12 N.E.3d 321, 325 (Ind. Ct. App. 2014) (citations omitted)

       trans. denied.


                           Ineffective Assistance of Trial Counsel
[15]   In Timberlake v. State, our supreme court summarized the law regarding claims

       of ineffective assistance of trial counsel as follows:


               A defendant claiming a violation of the right to effective
               assistance of counsel must establish the two components set forth
               in Strickland v. Washington, 466 U.S. 668 (1984). First, the
               defendant must show that counsel’s performance was deficient.
               This requires a showing that counsel’s representation fell below
               an objective standard of reasonableness, and that the errors were
               so serious that they resulted in a denial of the right to counsel
               guaranteed the defendant by the Sixth Amendment. Second, the
               defendant must show that the deficient performance prejudiced
               the defense. To establish prejudice, a defendant must show that
               there is a reasonable probability that, but for counsel’s
               unprofessional errors, the result of the proceeding would have
               been different. A reasonable probability is a probability sufficient
               to undermine confidence in the outcome.

               Counsel is afforded considerable discretion in choosing strategy
               and tactics, and we will accord those decisions deference. A
               strong presumption arises that counsel rendered adequate
               assistance and made all significant decisions in the exercise of
               reasonable professional judgment. The Strickland Court
               recognized that even the finest, most experienced criminal
               defense attorneys may not agree on the ideal strategy or the most
               effective way to represent a client. Isolated mistakes, poor
               strategy, inexperience, and instances of bad judgment do not
               necessarily render representation ineffective. The two prongs of
               the Strickland test are separate and independent inquiries. Thus,



       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018    Page 8 of 25
               if it is easier to dispose of an ineffectiveness claim on the ground
               of lack of sufficient prejudice . . . that course should be followed.


       753 N.E.2d 591, 603 (Ind. 2001) (citations and quotations omitted).


                                     I. Reckless Homicide Instruction

[16]   McDowell first argues that his trial counsel was ineffective for failing to request

       that the jury be instructed with regard to the lesser-included offense of reckless

       homicide. When it comes to instructing a jury on lesser-included offenses, our

       supreme court explained that it has:


               developed a three-part test that trial courts should perform when
               called upon by a party to instruct on a lesser included offense to
               the crime charged. First, the trial court must compare the statute
               defining the crime charged with the statute defining the alleged
               lesser included offense to determine if the alleged lesser included
               offense is inherently included in the crime charged. Second, if a
               trial court determines that an alleged lesser included offense is
               not inherently included in the crime charged under step one, then
               it must determine if the alleged lesser included offense is factually
               included in the crime charged. If the alleged lesser included
               offense is neither inherently nor factually included in the crime
               charged, the trial court should not give an instruction on the
               alleged lesser included offense. Third, if a trial court has
               determined that an alleged lesser included offense is either
               inherently or factually included in the crime charged, “it must
               look at the evidence presented in the case by both parties” to
               determine if there is a serious evidentiary dispute about the
               element or elements distinguishing the greater from the lesser
               offense and if, in view of this dispute, a jury could conclude that
               the lesser offense was committed but not the greater. “[I]t is
               reversible error for a trial court not to give an instruction, when



       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018         Page 9 of 25
                requested, on the inherently or factually included lesser offense”
                if there is such an evidentiary dispute.


       Webb v. State, 963 N.E.2d 1103, 1106 (Ind. 2012) (citing and quoting Wright v.

       State, 658 N.E.2d 563, 566–67 (Ind. 1995)).


[17]   McDowell claims that his trial counsel was ineffective because he initially

       argued that McDowell should be convicted of involuntary manslaughter, even

       though that crime was not an included offense of the charged crime of murder,

       and that this mistake was compounded when his counsel failed to request an

       instruction regarding reckless homicide. This left the jury with the choice to

       convict McDowell of murder, the lesser-included offense of voluntary

       manslaughter, or acquit him. McDowell’s trial counsel argued, unsuccessfully,

       for acquittal based on the argument that McDowell never had the intent to kill

       Rachel. To address McDowell’s arguments, it is necessary to consider the

       definition of murder and its included offenses.


[18]   The crime of murder is defined as knowingly3 or intentionally4 killing another

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

       intentionally kills another human being while acting under “sudden heat”5




       3
        “A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high
       probability that he is doing so.” Ind. Code § 35-41-2-2(b).
       4
         “A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective
       to do so.” I.C. § 35-41-2-2(a).
       5
        “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

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                           Page 10 of 25
       commits voluntary manslaughter. Ind. Code § 35-42-1-3(a). “The existence of

       sudden heat is a mitigating factor that reduces what otherwise would be murder

       under section 1(1) of this chapter to voluntary manslaughter.” Id. at § 3(b).

       Thus, voluntary manslaughter is an included offense of murder. Watts v. State,

       885 N.E.2d 1228, 1232 (Ind. 2008). Reckless homicide is defined,

       unsurprisingly, as recklessly6 killing another human being. Ind. Code § 35-42-1-

       5. The only distinguishing feature in the elements of murder and reckless

       homicide is the mens rea required of each offense. Evans v. State, 727 N.E.2d

       1072, 1082 (Ind. 2000). Reckless homicide is therefore an inherently included

       offense of murder. Id.


[19]   McDowell claims that his trial counsel was ineffective for failing to request that

       the jury be instructed regarding reckless homicide. He argues that this obviously

       would have been a better strategy than arguing that McDowell committed

       involuntary manslaughter, which was foreclosed by the language of the

       charging information.7 Had the jury been instructed on reckless homicide,



       defendant incapable of cool reflection.” Conner v. 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.
       6
         “A person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable
       disregard of harm that might result and the disregard involves a substantial deviation from acceptable
       standards of conduct.” I.C. § 35-41-2-2(c).
       7
         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). Involuntary manslaughter is not an inherently included lesser offense of murder. Evans v. State, 727
       N.E.2d 1072, 1081 (Ind. 2000). However, it may be a factually included lesser offense if the charging
       information alleges that the killing was accomplished by means that would be a battery. Id.
       As noted above, McDowell’s trial counsel initially argued to the jury that McDowell should be convicted of
       involuntary manslaughter. However, this possibility was foreclosed by the language of the charging

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                            Page 11 of 25
       McDowell claims, there was a reasonable probability that he would have been

       convicted of this lesser crime. We disagree.


[20]   The nature of the injuries to Rachel’s body indicate a brutal, extended beating.

       She was viciously beaten in the head, sufficient to cause the temporal muscle to

       be torn from the skull. And the injuries to the right side of her face included

       multiple skull fractures and were severe enough to have caused death from

       internal bleeding or the resulting swelling of the brain. Rachel had bruises on

       her intestines and a hematoma on one of her kidneys. Her ribs were not only

       broken, but so damaged that they literally came apart and injured her lungs.

       This sort of injury requires a significant amount of force. Moreover, her liver

       was not only lacerated, but almost severed in two.


[21]   The beating inflicted on Rachel necessary to cause such injuries was so severe

       that no reasonable person could have found it to have been inflicted only

       recklessly without also having been done knowingly, i.e., “to engage in conduct

       with an awareness that the conduct has a high probability of resulting in death.”

       Lyttle v. State, 709 N.E.2d 1, 3 (Ind. 1999) (citing Ind. Code § 35-41-2-2(b)). To

       beat someone as severely as Rachel was beaten goes well beyond the realm of

       acting recklessly, i.e., “with a plain, conscious, and unjustifiable disregard of




       information, which alleged simply that McDowell “did knowingly or intentionally kill another human being,
       to-wit: Rachel Lomax[.]” Direct Appeal App. p. 17. Because the charging information did not allege facts
       that would establish a battery, involuntary manslaughter was 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 defendant knowingly killed the victim).

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                         Page 12 of 25
       harm that might result and is a substantial deviation from accepted standards of

       conduct.” Id. (citing I.C. § 35-41-2-2(c)).


[22]   Accordingly, even if McDowell’s trial counsel had requested an instruction on

       reckless homicide, such an instruction could not have been properly given. See

       id. at 3 (holding that trial court did not err in refusing to instruct jury on reckless

       homicide where defendant repeatedly hit victim with a baseball bat and

       therefore jury could not have found defendant guilty of recklessly killing the

       victim without also finding that he knowingly killed the victim); Horan v. State,

       682 N.E.2d 502, 508 (Ind. 1997) (holding that trial court properly denied

       defendant’s request for reckless homicide instruction where defendant

       repeatedly kicked and punched the victim in such a severe manner that the jury

       could not conclude the lesser offense of reckless homicide was committed but

       not the greater offense of knowing murder); see also Dearman v. State, 743 N.E.2d

       757, 760 (Ind. 2001) (holding that trial court properly refused to instruct the jury

       on reckless homicide and involuntary manslaughter where evidence showed

       that victim died of being struck in head with large concrete block); Jones v. State,

       948 N.E.2d 1197, 1201 (Ind. Ct. App. 2012) (holding that trial court properly

       refused jury instructions on reckless homicide and involuntary manslaughter

       where evidence showed that defendant punched victim in the chest, then placed

       his hands on his neck until bloody foam came out of victim’s mouth), trans.

       granted, opinion adopted, 966 N.E.2d 1256 (Ind. 2012).


[23]   Instructing the jury on reckless homicide would have been improper given the

       nature of Rachel’s injuries and the severity of the beating necessary to inflict

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018     Page 13 of 25
       them. And even if the reckless homicide instruction had been given, there is no

       reasonable possibility that the jury would have concluded that McDowell only

       recklessly, as opposed to knowingly, killed Rachel, given the extent of her

       injuries. Accordingly, McDowell’s trial counsel was not ineffective for failing to

       request that the jury be instructed on reckless homicide.


[24]   The cases cited by McDowell are distinguishable, in that the facts in those cases

       permitted a reasonable jury to conclude that the defendant acted recklessly but

       not knowingly. See Webb v. State, 963 N.E.2d 1103, 1108 (Ind. 2012) (holding

       on direct appeal that trial court erred by refusing reckless homicide instruction

       where there was evidence that defendant did not know whether the gun he used

       to shoot his girlfriend was loaded); Fisher v. State, 810 N.E.2d 674, 680 (Ind.

       2004) (holding that post-conviction court erred in concluding that defendant

       was not denied ineffective assistance of appellate counsel where counsel failed

       to present claim that trial court erred in refusing to instruct the jury on reckless

       homicide where defendant admitted the shooting but claimed it was accidental

       and there was evidence that defendant had been “playing around” with the

       gun); Brown v. State, 770 N.E.2d 275, 281 (Ind. 2002) (holding on direct appeal

       that trial court erred in refusing reckless homicide instruction where

       erroneously excluded evidence indicated that defendant’s husband’s fatal act of

       striking child in the head with a large wooden paddle was accidental); Garrett v.

       State, 756 N.E.2d 523, 529 (Ind. Ct. App. 2001) (holding on direct appeal that

       trial court did not err in giving instruction on reckless homicide over

       defendant’s objection where evidence showed that defendant was frustrated


       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018    Page 14 of 25
       with her two-year-old son and squeezed his neck for “too long” while playing

       with him, thereby crushing his larynx, and causing the child to stop breathing),

       trans. denied; Sharkey v. State, 672 N.E.2d 937, 941 (Ind. Ct. App. 1996) (holding

       that post-conviction court erred in concluding that defendant was not deprived

       of the ineffective assistance of counsel where counsel failed to request a jury

       instruction on reckless homicide where the evidence showed that defendant got

       into an altercation with a prostitute during which he put his hands on her neck

       and squeezed tightly, attempting to push her away, when she went limp and

       motionless), trans. denied.8


[25]   We agree with the State that in each of the above cases, there was a relatively

       brief act that resulted in the victim’s death (shooting a gun that might have been

       loaded, playing around with a handgun, striking a small child with a paddle,

       squeezing a small child’s neck during play). Each of these actions could have

       been performed recklessly. In contrast, the evidence here shows that Rachel was

       subject to an extensive beating, not a momentary action, such that there is no

       way that McDowell could have acted merely recklessly without also acting

       knowingly, i.e., with an awareness that the conduct has a high probability of

       resulting in death.




       8
         We further agree with the State that the two other cases McDowell cites are inapposite. In both Lehman v.
       State, 730 N.E.2d 701 (Ind. 2000), and Wilkins v. State, 716 N.E.2d 955 (Ind. 1999), the defendants were
       convicted of murder, and our supreme court simply noted that the jury in each case had been instructed on
       reckless homicide. Lehman, 730 N.E.2d at 703; Wilkins, 716 N.E.2d at 956. However, in neither case did the
       court comment on the propriety of these instructions.

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                        Page 15 of 25
[26]   In summary, the post-conviction court did not clearly err in concluding that

       McDowell’s trial counsel was not ineffective for failing to request an instruction

       on reckless homicide. Although his trial counsel was mistaken with regard to

       the availability of the lesser-included offense of involuntary manslaughter, he

       did not err by failing to request an instruction on reckless homicide. The facts of

       this case show that the victim was so savagely beaten that there was no serious

       evidentiary dispute that McDowell acted recklessly without also acting

       knowingly. Thus, the trial court would properly have rejected such an

       instruction had one been requested, and there is no reasonable probability that,

       had such an instruction been given, the jury would have convicted McDowell

       of reckless homicide.


                      II. Propriety of Voluntary Manslaughter Instruction

[27]   McDowell also argues that his trial counsel was ineffective for failing to object

       to the trial court’s instructions regarding voluntary manslaughter. His argument

       regarding the failure to object to the jury instructions is twofold. He argues that

       his trial counsel should have objected to Final Instruction 5 because it

       misallocated the burden of proof on the element of sudden heat, and he also

       argues that his counsel should have objected to Final Instruction 4 because it

       improperly instructed the jury with regard to the lesser-included offense of

       voluntary manslaughter.




       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018    Page 16 of 25
       A. Final Instruction 5

[28]   We first address McDowell’s contention that Final Instruction 5 was

       “confusing and internally inconsistent” regarding the burden of proof as to

       sudden heat. Appellant’s Br. at 39. Final Instruction 5 provided as follows:


               The included offense of Voluntary Manslaughter is defined by
               statute as follows: A person who knowingly or intentionally kills
               another human being while acting under sudden heat commits
               Voluntary Manslaughter, a Class B Felony.

               The existence of sudden heat is a mitigating factor that reduces
               what otherwise would be Murder to Voluntary Manslaughter.
               The State has the burden of proving beyond a reasonable doubt that the
               defendant was not acting under sudden heat.

               To convict the defendant, the State must prove each of the
               following elements:

               The defendant

               1. Knowingly or intentionally

               2. killed

               3. Rachel Lomax.

               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the defendant not guilty of
               Voluntary Manslaughter.

               If the State did prove each of these elements beyond a reasonable
               doubt, and you further find the defendant did the killing while
               acting in sudden heat, you should find the defendant guilty of
               Voluntary Manslaughter.


       Direct Appeal App. p. 144 (emphasis added).


       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018          Page 17 of 25
[29]   McDowell argues that, after listing the elements of murder, this instruction

       informs the jury that, to convict the defendant of voluntary manslaughter, it

       needed to find that the defendant acted in sudden heat. This, he argues,

       suggests that the burden is on the State to prove that the defendant was acting in

       sudden heat. We disagree.


[30]   The complained-of portion of the instruction merely explains that the defendant

       can be convicted of voluntary manslaughter only if the jury finds the existence

       of sudden heat, which is indeed the law. See Watts, 885 N.E.2d at 1232.

       Moreover, Final Instruction 5 explicitly informs the jury that “[t]he State has

       the burden of proving beyond a reasonable doubt that the defendant was not

       acting under sudden heat.” Direct Appeal App. p. 144 (emphasis added). Thus,

       the instruction did not misinform the jury that the State had to prove the

       existence of sudden heat, but properly instructed it that the State had to prove

       that the defendant did not act under sudden heat.


[31]   McDowell’s citation to Eichelberger v. State, 852 N.E.2d 631 (Ind. Ct. App.

       2006), trans. denied, is therefore unavailing. In that case, the jury instruction

       incorrectly told the jury that the State had to prove the existence of sudden heat to

       obtain a conviction for voluntary manslaughter, not that the State had to prove

       the absence of sudden heat to obtain a conviction for murder. Id. at 639. Because

       Final Instruction 5 was not improper, McDowell’s trial counsel did not perform

       deficiently by failing to object to this instruction.




       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018    Page 18 of 25
       B. Final Instruction 4

[32]   McDowell also contends that his trial counsel was ineffective for failing to

       object to Final Instruction 4, which reads:

               If you find that the State has failed to prove any one of the essential
               elements of the charged crime of Murder, you should then decide whether
               the State has proved beyond a reasonable doubt all elements of the
               included crime of Voluntary Manslaughter which has been defined for
               you.

               If the State failed to prove each of the essential elements of the
               included crime beyond a reasonable doubt, the defendant should
               be found not guilty. If the State did prove each of the elements of
               the included crime beyond a reasonable doubt, you should find
               the defendant guilty of the lesser included crime. You must
               resolve reasonable doubt in favor of the accused downward from
               the specific crime charged through the included offense. You
               may not find the defendant guilty of more than one offense.
               Where there is a reasonable doubt existing in your minds as to
               which degree of an offense the defendant may be guilty of, he
               must be convicted of the lower degree only. If there is reasonable
               doubt as to all, then you must find the defendant not guilty.


       Direct Appeal App. p. 143 (emphasis added).


[33]   McDowell claims that this instruction is erroneous and that his trial counsel

       was ineffective for failing to object to it. Specifically, he claims that the first

       sentence misstates the law by instructing the jury to consider the lesser-included

       offense of voluntary manslaughter only if it first determines that the State has

       not proved all the elements of murder. As the State concedes, this is incorrect.




       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018      Page 19 of 25
[34]   In Watts, our supreme court explained that, although voluntary manslaughter is

       a lesser-included offense of murder, it is not a typical lesser included offense.

       885 N.E.2d at 1232. A typical lesser-included offense requires proof of some,

       but not all, of the elements of the greater offense. Id. Thus, a defendant

       convicted of the greater offense necessarily commits the lesser. Id. With

       voluntary manslaughter, however, the existence of “sudden heat” is a

       mitigating factor, not an element, that the State must prove in addition to the

       elements of murder. Id. Accordingly, a conviction for murder does not mean

       that a defendant could also have been convicted of voluntary manslaughter,

       because sudden heat must be separately proved. Id.


[35]   Accordingly, for the jury to convict McDowell of voluntary manslaughter, it

       would have had to first conclude that the State did prove the elements of

       murder, then consider whether the Sate negated the existence of sudden heat.9

       Final Instruction 4, however, informs the jury that it should decide whether

       McDowell committed the lesser-included offense if it finds that the State failed

       to prove one of the elements of murder. As explained in Watts, although this is

       true of most lesser-included offenses, it is not true of voluntary manslaughter.

       With voluntary manslaughter, the failure to prove one of the essential elements




       9
         “Although the State has the burden of negating the existence of sudden heat beyond a reasonable doubt, in
       order to inject that issue at all the defendant must point to some evidence supporting sudden heat whether
       this evidence be in the State’s case or the defendant’s own.” Jackson v. State, 709 N.E.2d 326, 328 (Ind. 1999).

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                           Page 20 of 25
       of the greater offense of murder is also the failure to prove one of the essential

       elements of the lesser offense of voluntary manslaughter. See id.


[36]   McDowell claims that his counsel was ineffective for failing to object to Final

       Instruction 4 on these grounds, citing McWhorter v. State, 970 N.E.2d 770 (Ind.

       Ct. App. 2012), trans. granted, summarily aff’d in relevant part, 993 N.E.2d 1141

       (Ind. 2013).10 In McWhorter, the defendant claimed that his trial counsel was

       ineffective for failing to object to the trial court’s instruction on voluntary

       manslaughter, which informed the jury that if the State failed to prove the

       elements of murder, it must find the defendant not guilty of murder. Id. at 777.

       Immediately after this, however, it stated, “[y]ou may then consider any

       included crime,” and set forth the elements of voluntary manslaughter. Id.

       (emphasis added).


[37]   The McWhorter court held that the instruction improperly directed the jury to

       consider the lesser included offense of voluntary manslaughter only if the State

       failed to prove all the elements of murder. Id. Thus, the jury was effectively

       instructed to “find that McWhorter did not knowingly or intentionally kill [the

       victim], but that he did knowingly or intentionally kill [the victim] while acting

       in sudden heat.” Id. We held that trial counsel’s failure to object to this




       10
         In this court’s opinion in McWhorter, we also held that the defendant could be retried on a charge of
       reckless homicide but not voluntary manslaughter. 970 N.E.2d at 778. The State sought transfer, challenging
       only this aspect of our opinion. Our supreme court granted transfer and concluded that the defendant could
       be retried on charges of both reckless homicide and voluntary manslaughter. McWhorter, 993 N.E.2d at 1144–
       45. The court summarily affirmed our conclusion that the defendant’s trial counsel rendered ineffective
       assistance. Id. at 1145 n.3.

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                       Page 21 of 25
       improper instruction was deficient performance. Id. We further held that the

       defendant was prejudiced by this deficiency because the jury was advised that

       the defendant could be convicted of voluntary manslaughter if less than all the

       elements of murder were proven. Id. at 778. We therefore concluded that the

       defendant was prejudiced because he was convicted of voluntary manslaughter,

       which, according to the jury instructions, could only be proved on a failure to

       find all the elements of murder, yet a conviction for voluntary manslaughter

       requires proof of all the elements of murder.11 Id.


[38]   Here, it is undisputed that Final Instruction 4 was improperly worded. But it is

       well-settled that jury instructions are to be considered as a whole, not in

       isolation. O’Connell v. State, 970 N.E.2d 168, 172 (Ind. Ct. App. 2012). To

       constitute an abuse of discretion, the instructions taken as a whole must

       misstate the law or otherwise mislead the jury.” Id. And the jury here was

       instructed to consider the instructions as a whole. Direct Appeal App. p. 140.




       11
          We also held that “McWhorter was prejudiced in that he ultimately stood convicted of Voluntary
       Manslaughter, an offense not initially charged by the State and one upon which McWhorter did not proffer
       evidence or request instruction.” Id. Upon further reflection, we do not think that this is a proper
       consideration in determining whether the defendant was prejudiced, as it is irrelevant that the defendant did
       not request the lesser-included offense instruction. It has long been held that, even if a defendant is charged
       with a greater offense, the State may request that the jury be instructed on a lesser-included offense so long as
       there is evidence to support the lesser offense. See Garrett, 756 N.E.2d at 529–30 (holding that, even though
       State charged defendant only with murder, it was proper to instruct the jury on the lesser included offense of
       reckless homicide, over defendant’s objection, where there was some evidence to support the lesser-included-
       offense instruction); cf. Watts, 885 N.E.2d at 1230 (holding that it was error to give, over defendant’s
       objection, State’s requested instruction on lesser-included offense of voluntary manslaughter where there was
       no evidence to support the lesser-included-offense instruction).

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                            Page 22 of 25
[39]   Here, Final Instruction 5 properly set forth the law regarding voluntary

       manslaughter. That is, Final Instruction 5 informed the jury: that voluntary

       manslaughter is defined as knowingly or intentionally killing another human

       being while acting under sudden heat; that the existence of sudden heat is a

       mitigating factor that reduces what would otherwise be murder to voluntary

       manslaughter; and that the State had the burden of proving that McDowell was

       not acting under sudden heat. Final Instruction 5 then provided:

               To convict the defendant, the State must prove each of the
               following elements:

               The defendant

               1. Knowingly or intentionally

               2. killed

               3. Rachel Lomax.

               If the State failed to prove each of these elements beyond a
               reasonable doubt, you should find the defendant not guilty of
               Voluntary Manslaughter.

               If the State did prove each of these elements beyond a reasonable
               doubt, and you further find the defendant did the killing while
               acting in sudden heat, you should find the defendant guilty of
               Voluntary Manslaughter.


       Id. at 144.




       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018   Page 23 of 25
[40]   Thus, unlike in McWhorter,12 here the jury was properly instructed that if the

       State failed to prove that McDowell knowingly or intentionally killed Rachel, it

       was to find him not guilty of voluntary manslaughter, but that if the State did

       prove that he knowingly or intentionally killed Rachel while acting in sudden

       heat (which the State had the burden to disprove), it should find him guilty of

       voluntary manslaughter. Viewing the instructions as a whole, we do not think

       that the jury was misinformed of the law regarding voluntary manslaughter.

       The post-conviction court therefore did not clearly err in rejecting McDowell’s

       claim of ineffective assistance of counsel for failing to object to these jury

       instructions.


                                                      Conclusion
[41]   The post-conviction court did not clearly err in concluding that McDowell was

       not denied the effective assistance of trial counsel. The evidence shows that

       McDowell brutally beat the victim in such a manner that he could not have

       simply been acting recklessly. Thus, even if his trial counsel had requested an

       instruction on reckless homicide, it could not have been properly given, and if




       12
          McDowell also cites Roberson v. State, 982 N.E.2d 452 (Ind. Ct. App. 2013), which we also find to be
       distinguishable. In that case, the jury was instructed that, if the State proved the defendant guilty of murder, it
       “need not” consider the included crimes of voluntary manslaughter, involuntary manslaughter, and reckless
       homicide. Id. at 457. And when reading the instruction, the trial court worsened this error by telling the jury
       that it “must not” consider the included crimes if it found the defendant guilty of murder. Id. at 458. Here,
       the jury was informed of the opposite in Final Instruction 4, i.e., that it should consider the lesser included
       offense if it found that the State failed to prove the greater offense of murder. Moreover, the instruction in
       Roberson, further misinformed the jury that the State had the burden of proving sudden heat, and no
       instruction properly informed the jury that the State had the burden of disproving sudden heat. Id. at 460–61.
       Here, the jury was properly informed as to the burden of proof, and the improper wording of Final
       Instruction 4 was cured by the correct statement of law contained in Final Instruction 5.

       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018                              Page 24 of 25
       such an instruction had been given, there is no reasonable probability that the

       jury would have convicted him of reckless homicide while acquitting him of

       murder. Furthermore, the jury instructions properly set forth the elements of the

       included offense of voluntary manslaughter, and the error in Final Instruction 4

       was cured by the proper statement of law contained in Final Instruction 5.

       Accordingly, we affirm the judgment of the post-conviction court.


[42]   Affirmed.


       Riley, J. and May, J. concur.




       Court of Appeals of Indiana | Opinion 82A01-1710-PC-2469 | May 30, 2018   Page 25 of 25
