MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Mar 06 2018, 9:05 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Matthew J. McGovern Curtis T. Hill, Jr. Anderson, Indiana Attorney General of Indiana George P. Sherman Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Travis Dean Fentress, March 6, 2018 Appellant-Defendant, Court of Appeals Case No. 31A01-1703-CR-687 v. Appeal from the Harrison Superior Court State of Indiana, The Honorable Joseph L. Appellee-Plaintiff. Claypool, Judge Trial Court Cause No. 31D01-1601-MR-49
Brown, Judge.
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 1 of 15 [1] Travis Dean Fentress appeals from his convictions for murder and attempted
murder. Fentress raises two issues which we revise and restate as:
I. Whether the trial court committed fundamental error in instructing the jury; and
II. Whether the evidence is sufficient to sustain his habitual offender determination.
We affirm Fentress’s convictions and habitual offender determination but
remand with instructions that the trial court attach his habitual offender
enhancement to either his sentence for murder or to his sentence for attempted
murder.
Facts and Procedural History
[2] Ralph and Rebecca Thomas were married and lived in a house in Palmyra,
Indiana. Rebecca had been addicted to methamphetamine and had known
Fentress for about one to one and one-half years and had sometimes given
Fentress methamphetamine, when on the evening of January 12, 2016, Fentress
and Tara, Fentress’s girlfriend, stopped at the Thomases’ residence, but no one
was at home.
[3] On January 13, 2016, Fentress and Tara again visited the Thomases’ residence
and entered the house, at which time the Thomases, Kyle Day, and Carrie Ule
were in the residence, Day was taking a shower, and Rebecca was in her
bedroom. Fentress told Day he needed to dress and that “[h]e thought Becca
and Ralph tried to give him a hot shot which is bad drugs.” Transcript Volume
3 at 52. Fentress held a sawed-off shotgun in his hand which had initially
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 2 of 15 belonged to Day and which Day had left in a duffle bag on a couch. In the
living room, Fentress and Tara said that they had stopped in the previous night
“[b]ecause they was going to take care of the situation about the bad drugs” but
that no one had been home. Id. at 55. Day believed that he, Fentress, Tara,
and Ule were in the living room for ten to fifteen minutes. Day tried to calm
Fentress and Tara down and “tried to talk to them and tell them there was other
ways to handle it.” Id. at 56. Fentress and Tara went into the bedroom in the
back of the house, Rebecca woke up, and Fentress and Tara started to argue
with Ralph and Rebecca. Rebecca heard “yelling and hollering” and “just kept
remembering hearing the words hot shot.” Id. at 11. A “hot shot” is “when
you supposedly give somebody a shot of something that they believed to be one
thing and really it’s something that’s supposed to kill them, or it’s not what it’s
supposed to be and it[] hurts them in some sort of way.” Id. Tara ended up on
top of Rebecca and was choking her and the struggle lasted for thirty to forty-
five seconds.
[4] Fentress and Tara left the Thomases’ house with Day and Ule. While driving
to take Ule to the home at which she had been staying, Fentress and Tara “were
arguing because [Fentress] didn’t really want to take care of the situation the
way that they was talking about” and Tara told Fentress that “he needed to
handle the situation.” Id. at 60. Day believed “that meant for [Fentress] to kill
Becca and Ralph.” Id. At some point, Tara exited the vehicle and Day
believed she wanted out of the car because she was upset that Fentress did not
handle the situation. Fentress continued on to drop Ule off, then took the same
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 3 of 15 route back, and picked up Tara near the area he had dropped her off. Fentress
and Tara continued to argue about “[t]he same thing.” Id. at 62.
[5] Fentress, Tara, and Day then returned to the Thomases’ house. When they
arrived, Fentress, Tara, and Day entered the house, and at the time Fentress
had a revolver in his pants and Tara had Day’s sawed-off shotgun. Fentress,
Tara, Ralph, and Rebecca were “arguing about the situation” in the living
room. Id. at 63. After a couple of minutes, Fentress told Tara to take Day out
to the car. Rebecca walked to the bedroom, and Ralph and Fentress followed
her. Fentress continued to argue with Ralph and Rebecca. At some point
when Rebecca was sitting on the end of her bed and crying, she said “[Fentress]
are you honestly telling me that I would ever do anything to try to kill you,” id.
at 21, or “you know I would never do that to you and I’d wouldn’t have done it
to Tara either,” id. at 189-190, and Fentress walked out of the room. Fentress
walked back into the room, fired a shot toward Ralph which missed, shot
Rebecca in the face, turned back to Ralph and shot him in the head, and then
shot Rebecca in the shoulder. Rebecca felt the bullet strike her in the jaw and
her teeth hit her tongue and then passed out. Fentress ran out of the house,
entered the car, and “told Tara not to ever tell him that he didn’t love her. He
just shot two people for her.” Id. at 65. Rebecca regained consciousness and
was not sure if she was dying, called 911, and reported that she and Ralph had
been shot by Fentress. Ralph was transported to the hospital and later died.
[6] During a subsequent police interview, Fentress stated that Tara had overdosed
during the prior September. He stated “[y]eah, walked back to the back
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 4 of 15 bedroom, and I woke them up and I said, hey you know guys we got a
problem” and “if you think you’re . . . going to steal my car, and you’re going
give me a hotshot too, that ain’t going to happen.” Id. at 181. He stated that,
after they left the Thomases’ house and before they returned to the house the
second time, he argued with Tara and “said, oh yeah, well you don’t think I
love you, you don’t think I’m protecting you, you don’t think that I take up for
you” and “said, alright then, you know, alright, watch this and I pulled in the
driveway slammed on the brakes and ran in the house.” Id. at 187. He stated,
“I’m standing there screaming and I looked up and she’s gone, the first thought
was, I remember thinkin, these two done cost me, you know, now these two
have caused us so many arguments.” Id. Fentress stated that “I seen Tara . . .
sittin in the car,” that Rebecca “started saying . . . you know I would never do
that to you and I’d wouldn’t have done it to Tara either,” and that “[t]he first
thing I thought was why would you even say that . . . because . . . [t]he only
person I ever said anything to was Tara that I thought that somebody tried to
purposely kill her whenever she OD’d.” Id. at 189-190. He stated that “I know
Tara wasn’t in that house whenever that happened, she already took off walkin
in the road is what -- seeing her walking in the snow again, and just walkin
away is when I snapped.” Id. at 190.
[7] At one point in the interview, Fentress asked the officer who had called the
police and told them what happened, the officer answered “Rebecca,” Fentress
responded “[a]re you lying or being serious,” and the officer stated “I’m being
honest with you. She called 911 with a bullet hole in the side of her face and a
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 5 of 15 shattered jaw to say that she had just been shot in the face and to say that her
husband was laying there dying after being shot in the head.” Id. at 224. Later
during the interview, Fentress stated that Tara “took off walking because she
said, you weren’t going to do it anyway because you haven’t done it already, as
far as (inaudible).” Transcript Volume 4 at 9. Fentress stated that he thought
one of his shots struck Rebecca, one struck Ralph, and one hit the wall. When
asked to “[t]ell me what you do know,” Fentress replied “[w]hen she walked
away from me I cried like a baby,” and when asked “[o]kay. What else do you
know,” Fentress answered “[b]ecause I hadn’t shot them” and “[t]hat’s what I
was told.” Id. at 14.
[8] On January 27, 2016, the State charged Fentress with: Count I, murder; and
Count II, attempted murder, a level 1 felony. The State later alleged that
Fentress was an habitual offender. At Fentress’s jury trial, the court instructed
the jury on the offenses of murder, attempted murder, voluntary manslaughter,
and attempted voluntary manslaughter. The jury found Fentress guilty of
murder and attempted murder as charged. The jury later found that Fentress
was an habitual offender. The court sentenced Fentress to fifty-five years for his
murder conviction, forty years for his attempted murder conviction, and ten
years for his habitual offender adjudication, and it ordered that he serve the
sentences consecutively for an aggregate sentence of 105 years.
Discussion
I.
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 6 of 15 [9] The first issue is whether the trial court committed fundamental error in
instructing the jury. Fentress does not point to the record to show that he
objected to the trial court’s instructions for voluntary manslaughter and
attempted voluntary manslaughter, and on appeal he claims the instructions
resulted in fundamental error. Fentress has waived his challenge. See Baker v.
State, 948 N.E.2d 1169, 1178 (Ind. 2011) (observing the defendant did not
object to the trial court’s instruction and accordingly waived any challenge to
the instruction); Ind. Trial Rule 51(C) (“No party may claim as error the giving
of an instruction unless he objects thereto before the jury retires to consider its
verdict, stating distinctly the matter to which he objects and the grounds of his
objection.”).
[10] We will review an issue that was waived at trial if we find fundamental error
occurred. Baker, 948 N.E.2d at 1178. In order to be fundamental, the error
must represent a blatant violation of basic principles rendering the trial unfair to
the defendant and thereby depriving the defendant of fundamental due process.
Id. The error must be so prejudicial to the defendant’s rights as to make a fair
trial impossible. Id. In considering whether a claimed error denied the
defendant a fair trial, we determine whether the resulting harm or potential for
harm is substantial. Id. at 1178-1179. Harm is not shown by the fact that the
defendant was ultimately convicted. Id. at 1179. Rather, harm is determined
by whether the defendant’s right to a fair trial was detrimentally affected by the
denial of procedural opportunities for the ascertainment of truth to which he
would have been entitled. Id.
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 7 of 15 [11] Fentress asserts that, although he does not dispute that he shot Rebecca and
Ralph, the court’s instructions for voluntary manslaughter and attempted
voluntary manslaughter resulted in fundamental error and were not harmless
because, among other deficiencies, they informed the jury that it could find a
defendant guilty of voluntary manslaughter only if it first found that the State
did not prove the elements of murder whereas, properly instructed, a jury must
consider a manslaughter charge only if it first finds a defendant guilty of
murder. Fentress claims that there was more than enough evidence to justify
the instructions, that he believed that Ralph and Rebecca had given Tara a “hot
shot,” that Rebecca said something during the argument which caused him to
lose it, and that seeing Tara outside or walk away is when he “snapped.”
Appellant’s Brief at 16.
[12] The State maintains that the evidence did not reveal a serious evidentiary
dispute concerning whether Fentress acted in sudden heat when he shot Ralph
and Rebecca and that any error regarding the voluntary manslaughter and
attempted voluntary manslaughter instructions was harmless and did not
constitute fundamental error. It argues that Fentress had ample time to reflect
upon his actions before shooting the victims, had several months to think about
his claim that Rebecca and Ralph tried to kill Tara, and had already confronted
Rebecca and Ralph about the drugs in an earlier encounter.
[13] We find that Fentress was not entitled to instructions on voluntary
manslaughter and attempted voluntary manslaughter and that the instructions,
even assuming they were erroneous, do not serve as grounds for reversal. A
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 8 of 15 person commits murder when the person knowingly or intentionally kills
another human being. Ind. Code § 35-42-1-1. A person commits voluntary
manslaughter when the person knowingly or intentionally kills another human
being “while acting under sudden heat.” Ind. Code § 35-42-1-3(a). The
existence of sudden heat is a mitigating factor that reduces what otherwise
would be murder to voluntary manslaughter. Ind. Code § 35-42-1-3(b).
[14] “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. State, 829 N.E.2d 21, 24 (Ind. 2005). Also, the
existence of “sudden heat” can be negated by a showing that a sufficient
“cooling off period” elapsed between the provocation and the homicide.
Morrison v. State, 588 N.E.2d 527, 531-532 (Ind. Ct. App. 1992). Anger alone is
not sufficient to support an instruction on sudden heat. Suprenant v. State, 925
N.E.2d 1280, 1282 (Ind. Ct. App. 2010) (citing Wilson v. State, 697 N.E.2d 466,
474 (Ind. 1998)), trans. denied. Nor will words alone “constitute sufficient
provocation to warrant a jury instruction on voluntary manslaughter,” and this
is “especially true” when the words at issue “are not intentionally designed to
provoke the defendant, such as fighting words.” Id. (citing Allen v. State, 716
N.E.2d 449, 452 (Ind. 1999)).
[15] “In addition to the requirement of something more than ‘mere words,’ the
provocation must be ‘sufficient to obscure the reason of an ordinary man,’ an
objective as opposed to subjective standard.” Id. at 1282-1283 (citing Stevens v.
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 9 of 15 State, 691 N.E.2d 412, 426 (Ind. 1997), reh’g denied, cert. denied, 525 U.S. 1021
(1998)). Finally, voluntary manslaughter involves an “impetus to kill” which
arises “suddenly.” Id. at 1283 (citing Stevens, 691 N.E.2d at 427).
[16] Voluntary manslaughter is an inherently included lesser offense of murder.
Washington v. State, 808 N.E.2d 617, 625 (Ind. 2004). The only element
distinguishing murder from voluntary manslaughter is “sudden heat,” which is
an evidentiary predicate that allows mitigation of a murder charge to voluntary
manslaughter. Id. An instruction on voluntary manslaughter as a lesser
included offense to a murder charge is warranted only if the evidence reflects a
serious evidentiary dispute regarding the presence of sudden heat. Isom v. State,
31 N.E.3d 469, 486 (Ind. 2015), reh’g denied, cert. denied, 136 S. Ct. 1161 (2016).
[17] To the extent Fentress became angry or upset as a result of Tara walking away
or indicating that he was not “going to do it anyway,” or Rebecca stating that
she would never try to kill him or Tara, we note that words, without more, do
not provide sufficient provocation to support sudden heat. This is especially
true when the words, as with Rebecca’s statement, were not designed to
provoke the defendant such as fighting words. See Isom, 31 N.E.3d at 486
(holding that, “even assuming Cassandra or the children said something to
Isom that may have been provocative, ‘[w]ords alone are not sufficient
provocation to reduce murder to manslaughter’”) (citation omitted); Suprenant,
925 N.E.2d at 1282 (observing that words alone do not warrant a jury
instruction on voluntary manslaughter and that this is especially true when the
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 10 of 15 words are not intentionally designed to provoke the defendant such as fighting
words).
[18] Moreover, as for the suggestion that Rebecca’s statement that she would never
to try to kill Fentress or Tara constituted provocation, we observe that Tara
overdosed months prior to the date of the shootings, that Fentress and Tara had
stopped by the Thomases’ house on January 12th but no one was home, and
that a protracted argument on the day of the shootings including two separate
visits to the Thomases’ home culminated in Fentress shooting Ralph and
Rebecca. Both Day and Rebecca testified regarding the arguing between
Fentress and Tara and the Thomases and that they remembered Fentress or
Tara referring to “hot shots” during their first visit on January 13, 2016. Day
also indicated that, while traveling to drop off Ule, Fentress and Tara continued
to argue, that Tara told Fentress that he needed “to handle the situation,” and
that he “believe[d] that meant for [Fentress] to kill Becca and Ralph.”
Transcript Volume 3 at 60. Fentress and Tara left the Thomases’ residence for
a period of sufficient length for Fentress to drop off Tara, take Ule home, pick
up Tara, and to discuss the matter with Tara and Day. Day testified that
Fentress should have had time to calm down. During their second visit to the
Thomases’ home on January 13th, Fentress carried a revolver and Tara carried
a saw-off shotgun and, at some point, Tara exited the residence. Fentress stated
during the police interview that Tara “took off walking because she said, you
weren’t going to do it anyway because you haven’t done it already, as far as
(inaudible).” Transcript Volume 4 at 9. Rebecca told Fentress that she would
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 11 of 15 never try to kill him or Tara. Fentress exited the room, walked back into the
room, shot Rebecca in the face and shoulder and Ralph in the head, ran to the
car, and told Tara that he had just shot two people for her.
[19] The evidence does not indicate that Fentress was provoked to a degree
sufficient to prevent deliberation or reflection or that the impetus to kill arose in
response to a contemporaneous event. The length of the extended argument on
the day of the shooting including two separate visits to the Thomases’ home,
Fentress’s interactions with Tara and Day, and Fentress’s calculating shots all
belie his claim of sudden heat. We conclude that there was no evidentiary
dispute regarding whether Fentress committed the offenses of shooting Rebecca
and Ralph while acting in sudden heat. See Potts v. State, 594 N.E.2d 438, 439
(Ind. 1992) (observing that the defendant had argued with one victim during the
course of the evening, at one point the defendant and the victim entered an
office and persons outside could hear loud voices as though they were arguing,
that the defendant later exited the office and attempted to confront another
victim, and that the defendant then drew a gun and shot the multiple victims,
shooting one three times, another in the heart killing her, and another in the
head killing him, and holding that there was no evidence that the defendant’s
disagreement with one of the victims resulted in anything but an exchange of
words and that the defendant’s cold and calculating firing of shots and the fact
that he deliberately made every shot count belied his claim of sudden heat),
reh’g denied, cert. denied, 507 U.S. 1039 (1993); Suprenant, 925 N.E.2d at 1284
(observing that the record was replete with evidence “that the impetus to kill did
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 12 of 15 not ‘suddenly’ arise in response to a contemporaneous event,” that the couple
had been arguing at length, and that, earlier on the day of the victim’s death,
the defendant had told his mother that the victim planned to leave and take the
children, and holding that the defendant was not entitled to a voluntary
manslaughter instruction).
[20] Accordingly, we find that Fentress was not entitled to instructions on voluntary
manslaughter and attempted voluntary manslaughter and that the instructions
do not serve as grounds for reversal of his convictions. See Burris v. State, 590
N.E.2d 576, 581 (Ind. Ct. App. 1992) (“Where there is no evidence of sudden
heat, an incorrect instruction on voluntary manslaughter is not reversible
error.”) (citing Hensley v. State, 499 N.E.2d 1125, 1127 (Ind. 1986) (holding that
there was no evidence of provocation or sudden heat and that the defendant
“was not entitled to an instruction on attempted voluntary manslaughter and
thus giving an incorrect definition of that offense cannot be a basis for reversal
of the attempted murder conviction”)), trans. denied; see also Fleenor v. State, 622
N.E.2d 140, 146 (Ind. 1993) (finding that the evidence did not support a
voluntary manslaughter instruction and that the error in the court’s voluntary
manslaughter instruction was harmless), cert. denied, 513 U.S. 999 (1994), and
abrogated on other grounds by Dill v. State, 741 N.E.2d 1230, 1232 (Ind. 2001).
II.
[21] The next issue is whether the evidence is sufficient to sustain the finding that
Fentress is an habitual offender. When an habitual offender finding is
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 13 of 15 challenged, we do not reweigh the evidence but rather look at the evidence in
the light most favorable to the verdict. White v. State, 963 N.E.2d 511, 518 (Ind.
2012). If an appellate court deems the evidence insufficient, an habitual
offender determination must be vacated. Id.
[22] Fentress asserts that one of the predicate felonies relied upon to find him to be
an habitual offender was a class D felony in violation of Ind. Code § 35-50-2-8
and thus that the evidence does not support his habitual offender adjudication.
The State responds that Fentress had a prior class C felony conviction, that thus
at least one of his prior felonies was not a class D felony conviction, and that
the State presented sufficient evidence that he was an habitual offender.
[23] Ind. Code § 35-50-2-8 provides in part:
A person convicted of murder . . . is a habitual offender if the state proves beyond a reasonable doubt that:
(1) the person has been convicted of two (2) prior unrelated felonies; and
(2) at least one (1) of the prior unrelated felonies is not a Level 6 felony or a Class D felony.
[24] The State presented evidence that Fentress was convicted of burglary as a class
C felony in 2002 and of possession of methamphetamine as a class D felony in
2012. Fentress does not challenge the determination that he was convicted of
two prior unrelated felonies. One of the prior felonies upon which the State
relied is Fentress’s 2002 conviction for burglary as a class C felony; thus, at least
one of the prior unrelated felonies is not a class D felony. We conclude that
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 14 of 15 Fentress’s prior convictions support the determination that he was an habitual
offender pursuant to Ind. Code § 35-50-2-8.
[25] While we affirm Fentress’s convictions and habitual offender determination, we
observe that the trial court erroneously entered a separate ten-year sentence for
the habitual offender finding to be served consecutive to the sentences for
murder and attempted murder. An habitual offender finding does not
constitute a separate crime, nor does it result in a separate sentence. See Ind.
Code § 35-50-2-8. Rather, an habitual offender finding results in a sentence
enhancement imposed upon the conviction of a subsequent felony. Hendrix v.
State, 759 N.E.2d 1045, 1048 (Ind. 2001). We remand with instructions that the
trial court vacate the separate sentence on the habitual offender finding and
attach the enhancement to either Fentress’s sentence for murder or to his
sentence for attempted murder and amend the sentencing order and abstract of
judgment accordingly.
Conclusion
[26] For the foregoing reasons, we affirm Fentress’s convictions and habitual
offender determination and remand.
[27] Affirmed and remanded.
Baker, J., and Riley, J., concur.
Court of Appeals of Indiana | Memorandum Decision 31A01-1703-CR-687 | March 6, 2018 Page 15 of 15