Pursuant to Ind.Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before
any court except for the purpose of
establishing the defense of res judicata,
                                                            FILED
                                                         Aug 09 2012, 9:15 am
collateral estoppel, or the law of the
case.                                                            CLERK
                                                               of the supreme court,
                                                               court of appeals and
                                                                      tax court




ATTORNEY FOR APPELLANT:                         ATTORNEYS FOR APPELLEE:

JAY A. RIGDON                                   GREGORY F. ZOELLER
Rockhill Pinnick, LLP                           Attorney General of Indiana
Warsaw, Indiana
                                                KARL M. SCHARNBERG
                                                Deputy Attorney General
                                                Indianapolis, Indiana


                              IN THE
                    COURT OF APPEALS OF INDIANA

JAMES A. CARR,                                  )
                                                )
       Appellant-Defendant,                     )
                                                )
              vs.                               )      No. 25A04-1112-CR-650
                                                )
STATE OF INDIANA,                               )
                                                )
       Appellee-Plaintiff.                      )


                    APPEAL FROM THE FULTON SUPERIOR COURT
                         The Honorable Wayne E. Steele, Judge
                            Cause No. 25D01-0611-MR-277


                                      August 9, 2012

               MEMORANDUM DECISION - NOT FOR PUBLICATION

BARNES, Judge
                                        Case Summary

       James Carr appeals his conviction for murder. We affirm.

                                            Issues

       Carr raises two issues on appeal, which we restate as:

            I.      whether the trial court erred by denying his motion for change of
                    judge; and

           II.      whether the trial court erred by denying his request for a reckless
                    homicide instruction.

                                             Facts

       On November 4, 2006, Carr entered the Denton Corner Tavern in Monterey,

Indiana. The bartender, Jan French, was informed by a customer that Carr had blood on

his pants. French spoke with Carr, and Carr said that he needed to go home. French did

not believe that Carr could safely drive because he was intoxicated. French offered to

drive him home and arranged to have Darlene Denton, the tavern owner, follow them in a

separate vehicle.

       During the drive, Carr informed French that “he was going to jail.” Tr. p. 381.

She assured him that he need not worry because she was driving. He then told her that he

had shot Roy Shaffer. He said that Shaffer “wouldn’t tell me the truth, so I pulled the

trigger.” Id. at 382. Carr was allowing Shaffer to stay at Carr’s mother’s vacant house

and was providing support until Shaffer could become self-sufficient. Carr and Shaffer

had spent the night drinking at Shaffer’s home. According to Carr, an argument began

between the two men, which resulted in the shooting.
                                               2
       After French delivered Carr to his home, she relayed to Denton what Carr had told

her. French and Denton returned to the tavern and called the sheriff’s department to

report the incident. Both women drove to the house in order to provide the sheriff’s

department with more information. When they arrived at Shaffer’s house, the women

found Shaffer lying in a wheelbarrow with his legs draped over the side. French was on

the phone with the sheriff’s department when they discovered Shaffer’s body.

       Deputy Terry Engstrand of the Fulton County Sheriff’s Department responded to

the dispatch. Deputy Engstrand found Shaffer in the wheelbarrow, and it was apparent

that he had been shot in the face and had a wound on his right cheek. Detective Daniel

Pryor arrived a short time later. When Detective Pryor questioned Denton and French,

the women confirmed that Carr had admitted to killing Shaffer. Officers searched Carr’s

house, and he was taken into custody. During the search, Carr said, “I haven’t told

anyone. Oh wait, I did tell someone.” Id. at 471.

       On November 8, 2006, Carr was charged with murder. A jury trial was conducted

in April 2009, and Carr was found guilty of murder. On June 16, 2009, Carr was

sentenced to fifty-five years imprisonment. Carr appealed this conviction and raised the

issue of an erroneous police interview conducted in disregard of his right to counsel. In a

memorandum decision, we affirmed Carr’s conviction. The supreme court, however,

granted Carr’s petition to transfer, and on September 29, 2010, the supreme court

reversed our determination and remanded the case for a new trial.


                                            3
          On March 1, 2011, Carr requested a change of venue and moved for a change of

judge. On April 8, 2011, the trial court found that Carr’s motion for change of venue was

premature and denied his motion for change of judge. On September 6, 2011, Carr filed

a petition for writ of mandamus in our supreme court requesting the trial court be ordered

to grant his motion for change of judge. The supreme court denied Carr’s petition stating

that it was not timely filed and that it failed to demonstrate any bias. See Appellant App.

p. 467.

          A second jury trial was conducted in October 2011.        At the trial, the State

presented evidence from forensic pathologist Dr. Joseph Prahlow who performed the

autopsy on Shaffer. Dr. Prahlow concluded that Shaffer suffered a stellate shotgun

wound to the face. Shaffer’s wound also showed signs of soot on the outside of and deep

within the wound. Through his study of the wound, which included an examination of

the soot and the charring of the wound, he could not determine if the wound was inflicted

from a distance or in contact with Shaffer’s face. He did state that it was unlikely to find

deep charring in a distant wound and that Shaffer’s wound had signs that were more

characteristic of a contact wound.

          Carr’s counsel presented two hypothetical scenarios to Dr. Prahlow during cross-

examination. First, counsel asked whether the wound was consistent with a scenario in

which a person is holding a shotgun, stumbles, reaches across a table, and discharges a

gun. Dr. Prahlow agreed that this is a possible scenario in which the wound could have

occurred. Second, Carr’s counsel asked if the wound was consistent with a scenario in
                                              4
which one person is holding the shotgun and the victim shoves the person who falls to the

floor and pulls the trigger as a result of the fall. Again, Dr. Prahlow agreed. Beyond the

presentation of these hypothetical scenarios, Carr provided no evidence to prove the

hypothetical scenarios.

       At trial, Carr tendered a jury instruction on the lesser included offense of reckless

homicide. Carr asserted that there was a serious evidentiary dispute as to Carr’s state of

mind at the time of the shooting, which was evidenced by Dr. Prahlow’s positive

responses to his hypothetical scenarios. The trial court denied this request, finding no

serious evidentiary dispute, and instructed the jury only on the charge of murder. The

jury found Carr guilty of murder, and he was sentenced to fifty-five years. He now

appeals.

                                           Analysis

                                I. Motion for Change of Judge

       Carr contends that the trial court erred by not granting his motion for change of

judge. Either party may move for a change of judge when a conviction is reversed on

appeal and a new trial ordered. See Ind. Code § 34-35-4-2(b). “The request shall be

granted if the historical facts recited in the affidavit support a rational inference of bias or

prejudice.” Ind. Crim. Rule 12(b). The ruling on a motion for change of judge is

reviewed under the clearly erroneous standard. See Sturgeon v. State, 719 N.E.2d 1173,

1181 (Ind. 1999). The law presumes that a judge is unbiased and unprejudiced. See

Lasley v. State, 510 N.E.2d 1340, 1341 (1987). A motion for change of judge is neither
                                               5
automatic nor discretionary. Sturgeon, 719 N.E.2d at 1181. “A showing of prejudice

that calls for a change of judge must be established from personal, individual attacks on a

defendant’s character, or otherwise. A defendant cannot merely claim prejudice on the

grounds that the judge has ruled against him in a prior proceeding.” Garland v. State, 788

N.E.2d 425, 433 (Ind. 2003). Carr has not alleged any specific bias and asks that we

reconsider the decision in Garland.

       We have no authority to set aside supreme court decisions and are bound by the

precedents set by that court. See Culbertson v. State, 929 N.E.2d 900, 906 (Ind. Ct. App.

2010) (citing Horn v. Hendrickson, 824 N.E.2d 690, 694 (Ind. Ct. App. 2005)). We

decline to question this well-settled precedent. As Carr presents no evidence to suggest

any personal prejudice on the part of the trial court judge, we do not address that aspect

of the analysis. Carr has not demonstrated that the trial court erred when it denied his

motion for change of judge.

                              II. Reckless Homicide Instruction

       Carr argues that the trial court erred by denying his request for an instruction on

the lesser included offense of reckless homicide. In Wright v. State, 658 N.E.2d 563,

566-567 (Ind. 1995), our supreme court clarified the circumstances under which the trial

court should instruct a jury on a lesser included offense and set forth a three-part test.

First, the trial court should determine whether the lesser offense is inherently included in

the charged offense. Id. at 566. Second, if the offense is not inherently included, then the

trial court should determine if it is factually included in the charged offense. Id. at 567.
                                             6
Finally, if the offense is either inherently or factually included in the charged offense, the

court should examine the evidence and determine whether there is a serious evidentiary

dispute about the element or elements distinguishing the greater from the lesser offense.

Id. “It is reversible error for a trial court not to give an instruction, when requested, on

the inherently or factually included lesser offense.” Id.

       When applying the foregoing framework to Carr’s request, the only element

distinguishing murder and reckless homicide is the defendant’s mens rea. Reckless

homicide occurs when one recklessly kills another, and murder occurs when one

knowingly or intentionally kills another. Compare I.C. § 35-42-1-5, with I.C. § 35-42-1-

1(1). Reckless conduct is action taken 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). A person knowingly engages in conduct if

that person is aware of a high probability that he or she is doing so. I.C. § 35-41-2-2(b).

Reckless homicide is an inherently included lesser offense of murder. See Davenport v.

State, 749 N.E.2d 1144, 1150 (Ind. 2001).          The determinative issue then becomes

whether the evidence produced an issue of serious evidentiary dispute, particularly in

determining Carr’s state of mind at the time of the shooting.

       In defining the existence of a serious evidentiary dispute, the trial court “must look

at the evidence presented in the case by both parties.” Wright, 658 N.E.2d at 567. The

trial court reviewed Carr’s arguments concerning the events leading up to the shooting

and determined that “all the other evidence points otherwise.” Tr. p. 716. The trial court
                                              7
determined that the shooting was at close range and that Carr was well aware of the high

probability of Shaffer’s death. The trial court reviewed the evidence of both parties and

determined that there was not a serious evidentiary dispute as to Carr’s knowing and

intentional state of mind at the time of the shooting. We agree.

       Carr presented a series of hypothetical scenarios to Dr. Prahlow. Dr. Prahlow

agreed that the scenarios were possible but was unable to state with any certainty that the

scenarios occurred. Carr perhaps proved that there may be some question as to whether

the wound was distant or contact, but this proof would have no effect on the

determination of Carr’s state of mind at the time of the shooting.           In fact Carr’s

statements to French directly contradict his counsel’s hypothetical scenarios. Carr said

that Shaffer “wouldn’t tell me the truth, so I pulled the trigger.” Id. at 382. This is clear

evidence that he intended to fire the shotgun at Shaffer. Also, it is evident that the

shotgun was pointed at Shaffer’s face the moment Carr pulled the trigger. Carr made no

mention to anyone at Denton’s Tavern or to French that there was any argument between

him and Shaffer or that the shooting was accidental. His actions and statements directly

contradict the hypothetical scenarios proposed to Dr. Prahlow.

       Carr also mentions Webb v. State, 963 N.E.2d 1103 (Ind. 2012), to assert that the

trial court must look to the evidence presented by both parties to determine if there is a

serious evidentiary dispute. In Webb, the supreme court reversed the trial court and held

that Webb should have received the reckless homicide instruction. The circumstances in

Webb diverge greatly from this case, and the two cases are clearly distinguishable.
                                             8
       In Webb, four people were present in a house drinking throughout the evening.

Webb and his girlfriend had been fighting, and at one point, his girlfriend retreated to the

bathroom to call a friend. When Webb confronted his girlfriend in the bathroom, he shot

her. The friend on the phone testified that she could hear Webb’s voice over the phone

saying, “Cherlyn, baby, wake up, wake up.” Webb, 963 N.E.2d at 1105. Upon hearing

the shot, the other two occupants of the house ran to the bathroom and met Webb outside

in the hallway. Webb told one of the other occupants, “I just shot my baby’s momma.”

Id. The other witness testified that Webb accidentally shot his girlfriend. Id.

       Webb requested a reckless homicide instruction based on the evidence presented

by other witnesses. This evidence is clearly more substantial than the two hypothetical

scenarios put forth by Carr’s counsel. The testimony in Webb concerned what actually

happened; whereas, the hypotheticals proposed to Dr. Prahlow at trial did not coincide

with evidence of Carr’s actions or statements the night of the shooting. Carr presented no

actual evidence or witness testimony suggesting he did anything other than knowingly or

intentionally shoot Shaffer in the face.

       Carr presented the hypothetical scenarios as proof of an evidentiary dispute, but he

presented no evidence beyond these arguments to substantiate his claim of a reckless

shooting. “It is axiomatic that the arguments of counsel are not evidence.” Wilkerson v.

State, 728 N.E.2d 239, 244 (Ind. Ct. App. 2000) (citing Blunt-Keene v. State, 708 N.E.2d

17, 19 (Ind. Ct. App. 1999)). There was no serious evidentiary dispute that would


                                             9
support Carr’s request for a reckless homicide instruction. The trial court properly denied

Shaffer’s request.

                                       Conclusion

       We conclude that the trial court properly denied Carr’s motion for change of judge

and properly denied Carr’s request for a reckless homicide jury instruction. We affirm.

       Affirmed.

FRIEDLANDER, J., and MAY, J., concur.




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