Morice Ervin v. State of Indiana (mem. dec.)

MEMORANDUM DECISION
FILED
Pursuant to Ind. Appellate Rule 65(D), Jul 22 2016, 9:31 am
this Memorandum Decision shall not be CLERK
regarded as precedent or cited before any Indiana Supreme Court
Court of Appeals
court except for the purpose of establishing and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Ellen M. O’Connor Gregory F. Zoeller
Marion County Public Defender Attorney General of Indiana
Indianapolis, Indiana
Monika Prekopa Talbot
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Morice Ervin, July 22, 2016
Appellant-Defendant, Court of Appeals Cause No.
49A02-1510-CR-1547
v. Appeal from the Marion Superior
Court
State of Indiana, The Honorable Kurt Eisgruber,
Appellee-Plaintiff. Judge
Trial Court Cause No.
49G01-1406-MR-31398
Barnes, Judge.
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Case Summary
[1] Morice Ervin appeals his convictions for murder and Class A felony rape. We
affirm.
Issue
[2] The sole issue is whether the trial court abused its discretion by admitting
gruesome photographs of the crime scene and the victim’s body.
Facts
[3] On March 27, 2014, Shannon Kleeman (“Shannon”) spent the night at her step-
mother Jenny Kleeman’s (“Jenny”) Marion County house to care for Jenny’s
pets while Jenny was hospitalized. Jenny called to check on Shannon that
evening, and Shannon told Jenny that Morice Ervin had stopped by. Ervin and
his wife Mary Ervin lived next door to Jenny, and Jenny socialized with them
regularly. Jenny owned her late husband’s Mossberg twelve-gauge shotgun and
previously asked Ervin to load it for her so it was available for her protection.
Ervin thus knew where Jenny kept the gun. Ervin was also familiar with
Jenny’s dogs. Ervin had met Shannon, who visited Jenny daily, and Jenny had
told Ervin that Shannon was “special, that she didn’t have the mentality of the
21-year-old that she looked like.” Tr. p. 165.
[4] On March 28, 2014, Crystal Combs, the sister with whom Shannon lived, went
to Jenny’s house to check on Shannon because she had been unable to reach
her by telephone. When Combs arrived, the front door to Jenny’s house was
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unlocked, and Combs discovered Shannon’s half-naked body lying in a pool of
blood in Jenny’s basement.
[5] Shannon had been shot in the head at close range with a twelve-gauge shotgun
resulting in massive trauma. In order to better assess the injuries to Shannon’s
face and head, the forensic pathologist used surgical yarn “and sewed her face
back together to better approximate and document the injuries . . . .” Id. at 244.
He observed “an area of shotgun injury to the right and left eyes, there’s
fractured teeth, there’s some birdshot, entry shotgun injury [] to the left cheek,
her back of her skull was markedly fragmented into multiple skull fractures.”
Id. She had bird shot pellets embedded in her right hand. Shannon’s right
thumb was almost completely amputated by a gunshot wound. One of her
breasts was bruised. There were scrapes and bruises on her neck that indicated
her neck was compressed, but the forensic pathologist was unable to determine
if she was strangled because the trauma to Shannon’s eyes was so severe he
could not assess them for petechial hemorrhages. Shannon’s shirt was torn, and
her pants and underwear had been removed. She suffered tears to her vagina
and anus that the forensic pathologist testified would have been “extremely
painful[.]” Id. at 254.
[6] Swabs taken from one of Shannon’s breasts and under the fingernails on her left
hand revealed the presence of Ervin’s DNA. Ervin’s DNA was also found on
swabs from Shannon’s vagina. Jenny’s shotgun was missing from her home at
the time Shannon’s body was discovered; it was never found.
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[7] The State charged Ervin with murder, Class A felony rape, and with an
habitual offender enhancement. A jury found him guilty as charged, and the
trial court sentenced Ervin to an aggregate sentence of 135 years in the
Department of Correction. Ervin appeals his murder and rape convictions.
Analysis
[8] During the trial, the trial court admitted into evidence several photographs—
Exhibits 27, 28, 31, 147, and 1511—to which Ervin objected. Ervin contends
the trial court abused its discretion by admitting these photographs of the crime
scene and Shannon’s body because they are gory, “served to inflame the
passions of the jury,” and were more prejudicial than probative. Appellant’s Br.
p. 10.
[9] The standard of review with regard to the admission of evidence is well-settled.
We review a trial court’s ruling on the admissibility of evidence for an abuse of
discretion. Moore v. State, 49 N.E.3d 1095, 1101 (Ind. Ct. App. 2016). We
reverse such a decision only when the admission of evidence is clearly against
the logic and effect of the facts and circumstances before the court and the error
affects a party’s substantial rights. Id.
[10] “Generally, photographs depicting the crime scene and victim’s body are
admissible as long as they are relevant and competent aids to the jury.”
1
Appellant’s Brief identifies one of the objectionable exhibits as 152. This appears to be a typographical
error. It is clear in the record that Appellant objected to Exhibit 151, the Appellee’s Brief references Exhibit
151, and, in a different portion of his Appellant’s Brief, Ervin cites to Exhibit 151.
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Halliburton v. State, 1 N.E.3d 670, 676 (Ind. 2013). “[E]ven gory and revolting
photographs may be admissible as long as they are relevant to some material
issue or show scenes that a witness could describe orally . . . although a
photograph may arouse the passions of the jurors, it is admissible unless its
probative value is substantially outweighed by the danger of unfair prejudice.”
Id. (quotation omitted) (citation omitted).
[11] “Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Indiana Evidence Rule 401. A trial
court may, however, “exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, or needlessly
presenting cumulative evidence.” Evid. R. 403.
[12] There can be no dispute the photographs, which depict Shannon’s half-naked
body and the extensive injuries to her face and skull at the crime scene and in
the forensic pathologist’s examination room, are “gory and revolting,” and they
may well have aroused the passions of the jurors. Halliburton, 1 N.E.3d at 676.
We need not, however, analyze the five photographs to determine whether the
trial court should have excluded any of them pursuant to Evidence Rule 403.
“‘The improper admission [of evidence] is harmless error if the conviction is
supported by substantial independent evidence of guilt satisfying the reviewing
court there is no substantial likelihood the challenged evidence contributed to
the conviction.’” Evans v. State, 30 N.E.3d 769, 776 (Ind. Ct. App. 2015)
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(alteration in original) (quoting Turner v. State, 953 N.E.2d 1039, 1059 (Ind.
2011)), trans. denied.
[13] The statute in effect at the time these crimes were committed defined Class A
felony rape as knowingly or intentionally having sexual intercourse with
another person by using or threatening the use of deadly force, while armed
with a deadly weapon, or resulting in serious bodily injury to a person other
than the defendant. Ind. Code § 35-42-4-1. Indiana Code Section 35-42-1-1
defines murder as knowingly or intentionally killing another human being.
[14] The record reveals Shannon was familiar with Ervin, her step-mother’s
neighbor and friend. Ervin knew Shannon was alone at Jenny’s house.
Investigators did not observe signs of forced entry into Jenny’s house. Ervin
knew Jenny owned a twelve-gauge shotgun and where she kept it. Ervin knew
the gun was loaded; he previously loaded it for Jenny. Shannon was shot and
killed by a twelve-gauge shotgun. Jenny’s shotgun was missing after Shannon’s
murder. Ervin left his house the evening Shannon was murdered. Shannon’s
pants and underwear were removed, and she suffered “extremely painful” tears
to her vagina and anus. Tr. p. 254. Ervin’s DNA was found on Shannon’s
breast, under her fingernails, and in her vagina.
[15] Even absent the five photographs at issue, there was substantial independent
evidence from which the jury could conclude Ervin raped and murdered
Shannon. Therefore, errors, if any, in the admission of the photographs were
harmless. See Evans, 30 N.E.3d at 776.
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Conclusion
We conclude that any abuse of discretion in the admission of evidence was
harmless. We affirm.
Affirmed.
Vaidik, C.J., and Mathias, J., concur.
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