MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Nov 01 2017, 6:26 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
estoppel, or the law of the case. and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
Linda L. Harris Curtis T. Hill, Jr.
Kentland, Indiana Attorney General of Indiana
Michael Gene Worden
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Kurt Stuhlmacher, November 1, 2017
Appellant-Defendant, Court of Appeals Case No.
37A03-1704-CR-833
v. Appeal from the Jasper Superior
Court
State of Indiana, The Honorable James R. Ahler,
Appellee-Plaintiff Judge
Trial Court Cause No.
37D01-1411-F1-913
Baker, Judge.
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[1] Kurt Stuhlmacher appeals his convictions for Level 1 Felony Attempted
Murder,1 Level 3 Felony Attempted Aggravated Battery,2 two counts of Level 6
Felony Resisting Law Enforcement,3 three counts of Level 6 Felony Criminal
Recklessness,4 and Class A Misdemeanor Operating a Vehicle While
Intoxicated Endangering a Person.5 Stuhlmacher raises the following
arguments on appeal: (1) the trial court erroneously admitted certain evidence;
(2) the trial court erroneously instructed the jury on the charge of attempted
murder; and (3) he received the ineffective assistance of trial counsel. Finding
no error and that Stuhlmacher did not receive the ineffective assistance of trial
counsel, we affirm.
Facts
[2] In November 2014, Stuhlmacher and Kelly Wood had been married for over
thirty years.6 Wood was employed, but Stuhlmacher was unemployed because
of back injuries and disabilities. He was dependent on his wife for most things.
[3] On November 17, 2014, Wood went to work. Stuhlmacher called her at
lunchtime and yelled at her and then sent her numerous texts until she left
1
Ind. Code § 35-42-1-1.
2
I.C. § 35-42-2-1.5.
3
Ind. Code § 35-44.1-3-1.
4
I.C. § 35-42-2-2.
5
Ind. Code § 9-30-5-2.
6
They have since divorced.
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work. After she left work, Stuhlmacher called her again, angry because he had
been prohibited from “deer camp” and believed it was her fault. Wood told
him that she was not going to come home unless he agreed to seek substance
abuse treatment. Stuhlmacher told Wood that if she did not come home, he
would hunt her down.
[4] Stuhlmacher eventually agreed to seek substance abuse treatment, so Wood
drove home. When she got there, Stuhlmacher was highly intoxicated and
issued multiple conditions for seeking substance abuse treatment; she concluded
that he had no intention of seeking such treatment. Eventually, Stuhlmacher
became enraged, and Wood felt unsafe and decided to leave.
[5] Wood drove away in her Mustang; Stuhlmacher drove after her in his pickup
truck at a high rate of speed. Wood was afraid and called 911. He chased her
for several miles at high speeds, ramming her car three times. The third time he
rammed her car, the Mustang hit a parked car and then crashed into a
telephone pole. During the chase, Wood believed that Stuhlmacher was trying
to kill her.
[6] After Wood called 911, several officers responded to the dispatch, and had
unsuccessfully attempted to stop Stuhlmacher before he rammed Wood’s car
into the telephone pole. After that final crash, Stuhlmacher continued driving,
leading officers on a chase through the streets of Rensselaer until officers were
able to box in the pickup truck and arrest him.
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[7] On November 24, 2014, the State charged Stuhlmacher with Level 1 felony
attempted murder and three counts of Level 6 felony resisting law enforcement.
The State later added charges of three counts of Level 6 felony criminal
recklessness, Class A misdemeanor operating a vehicle while intoxicated
endangering a person, and Level 3 felony aggravated battery. 7 Stuhlmacher’s
jury trial began on October 25, 2016. Following the trial, the jury found him
guilty of all charges except for one of the counts of Level 6 felony resisting law
enforcement. On January 17, 2017, the trial court sentenced Stuhlmacher to an
aggregate sentence of thirty years imprisonment.
[8] On February 6, 2017, Stuhlmacher filed a motion to correct error; the trial court
held a hearing on the motion on March 20, 2017. After denying the motion,
the trial court engaged in a discussion with Stuhlmacher about the appointment
of appellate counsel. During that discussion, Stuhlmacher made statements
regarding an alleged incident in which an unauthorized person entered the jury
room during deliberations and the judge followed her. The trial court
vehemently denied that it had occurred. Stuhlmacher now appeals.
7
The State also charged Stuhlmacher with Class C misdemeanor operating a vehicle with an ACE of .08 or
more but later dismissed that charge.
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Discussion and Decision
I. Admission of Evidence
[9] Stuhlmacher first argues that the trial court erroneously admitted certain
evidence. The admission and exclusion of evidence falls within the trial court’s
sound discretion, and we will reverse only if the decision is clearly against the
logic and effect of the facts and circumstances before it. Johnson v. State, 6
N.E.3d 491, 498 (Ind. Ct. App. 2014).
[10] Stuhlmacher contends that the trial court erroneously admitted two categories
of evidence: (1) evidence regarding Stuhlmacher having been barred from
hunting deer on a farmer’s land where he and others of his family had hunted
for years (the “deer camp” testimony); and (2) evidence regarding his
tumultuous relationship with Wood. According to Stuhlmacher, the admission
of this evidence violated Indiana Evidence Rule 404(b), which provides
generally that “[e]vidence of a crime, wrong, or other act is not admissible to
prove a person’s character in order to show that on a particular occasion the
person acted in accordance with the character.” The primary purpose of the
rule is to protect the defendant from the forbidden inference that he acted badly
in the past and therefore the present charged offense conforms to his past bad
acts. Erickson v. State, 72 N.E.3d 965, 973-74 (Ind. Ct. App. 2017), trans. denied.
[11] The “deer camp” testimony can be summarized as follows: Stuhlmacher was
told that he could no longer hunt deer on the land of a family friend. The
farmer issued this prohibition because he feared liability based on
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Stuhlmacher’s mental health and prior suicide attempts. The facts that
Stuhlmacher had mental health issues, had attempted suicide in the past, and
was prohibited from hunting on the farmer’s property, do not qualify as crimes,
wrongs, or other bad acts evidence prohibited by Rule 404(b). Consequently,
the trial court did not err by admitting this evidence.
[12] With respect to evidence regarding his tumultuous relationship with Wood, we
note that evidence that would otherwise be excluded by Rule 404(b) may be
admissible for another purpose, such as proving motive. Evid. R. 404(b)(2). It
is well accepted that evidence regarding the relationship between the defendant
and his victim, particularly where it demonstrates a hostile relationship, is
relevant to motive and therefore generally admissible over a Rule 404(b) claim.
See, e.g., Hicks v. State, 690 N.E.2d 215, 222 (Ind. 1997) (holding that “hostility
is a paradigmatic motive for committing a crime”); Ross v. State, 676 N.E.2d
339, 346 (Ind. 1996) (holding that a defendant’s prior bad acts are generally
admissible to show the relationship between the defendant and victim);
Whitham v. State, 49 N.E.3d 162, 166-67 (Ind. Ct. App. 2016) (holding that
defendant’s prior acts against a spouse are admissible to show a hostile
relationship and are relevant to defendant’s motive and state of mind for the
charged offense), trans denied.
[13] Here, the evidence revealed a lengthy and hostile relationship between
Stuhlmacher and Wood. Their marriage was fraught with tension caused by
substance abuse, mental illness, suicidal ideations, an imbalance of household
and familial responsibilities, resentment, and anger management problems. We
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find that the trial court did not err by admitting this evidence, which
demonstrates a hostile relationship and is relevant to proving Stuhlmacher’s
motive in committing the charged offenses.
II. Jury Instruction
[14] Stuhlmacher next argues that the trial court erred in instructing the jury on the
offense of attempted murder. Instructing the jury is within the discretion of the
trial court, and we will reverse only if a particular instruction is erroneous and
the instructions as a whole misstate the law or otherwise mislead the jury.
Winkleman v. State, 22 N.E.3d 844, 849 (Ind. Ct. App. 2014).
[15] To properly instruct a jury on an attempted murder charge, the instruction must
state that the State is required to prove beyond a reasonable doubt that the
defendant, with the specific intent to kill the victim, engaged in conduct that
constituted a substantial step toward such a killing. Rosales v. State, 23 N.E.3d
8, 11 (Ind. 2015). Jury instructions on attempted murder charges that refer to a
“knowing” or a “knowing or intentional” mens rea have generally been found
to be erroneous. E.g., Ramsey v. State, 723 N.E.2d 869, 872 (Ind. 2000);
Kadrovach v. State, 61 N.E.3d 1241, 1243 n.2. (Ind. Ct. App. 2016), trans denied.
[16] Here, the final instruction on the attempted murder charge reads as follows:
[T]he crime of the [sic] attempted murder is defined as follows: a
person attempts to commit a murder when acting with the
specific intent to kill another person, he engages in conduct that
constitutes a substantial step towards the killing of that person.
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Before you may convict the defendant of attempted murder, the
State must prove each of the following elements beyond a
reasonable doubt.
Number 1. The defendant,
2. Acting with a specific intent to kill Kelly [Wood],
3. Did knowingly and intentionally drive a Ford F -150 truck at a
high rate of speed in excess of 90 miles per hour following Kelly
Stuhlmacher in her Mustang and rammed her vehicle three
separate times, the last incident causing her to lose control of the
Mustang and crash into a utility pole.
[4.] Which was conduct constituting a substantial step towards
the commission of the intended crime of killing Kelly
Stuhlmacher. If the State []fails to prove each of these elements
beyond a reasonable doubt, you must find the defendant not
guilty of the crime of attempted [murder] a Level One Felony as
charged in the amended count one.
Tr. Vol. III p. 92.
[17] At the outset, the instruction tells the jury that to convict Stuhlmacher of
attempted murder, it must find that he acted with the specific intent to kill
Wood. This is a correct recitation of the required mens rea. The confusion
arises from the phrase in part three instructing the jury that it must find that
Stuhlmacher “knowingly and intentionally” operated his truck in the manner
specified. We agree with the State that this was “an inartful choice of wording
because ‘knowingly’ should not have been included at all in this attempted
murder instruction . . . .” Appellee’s Br. p. 18. Nonetheless, here, the
conjunction “and” was used between “knowingly” and “intentionally,”
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meaning that the jury was not left with the choice to find Stuhlmacher guilty
based only on a knowing mens rea. Instead, the jury had to find that an
intentional mens rea was required. Under these circumstances, we find that the
instruction as a whole did not mislead the jury with respect to the elements
required for an attempted murder conviction.8
III. Assistance of Trial Counsel
[18] Finally, Stuhlmacher argues that he received the ineffective assistance of trial
counsel. To succeed on a claim of ineffective assistance of trial counsel, a
defendant must establish both deficient performance on the part of trial counsel
and that the deficient performance prejudiced the defendant. Pavan v. State, 64
N.E.3d 231, 233 (Ind. Ct. App. 2016).
[19] Here, Stuhlmacher contends that trial counsel was ineffective for failing to
move for a mistrial regarding alleged extrajudicial contact with the jurors
during deliberations. To prevail on a mistrial motion, a defendant must
demonstrate that he was placed in a position of grave peril to which he should
not have been subjected. Bisard v. State, 26 N.E.3d 1060, 1067-68 (Ind. Ct. App.
2015), trans denied. When a claim of extrajudicial contact or communications
with the jury is made, a defendant has the initial burden of showing by a
preponderance of the evidence that (1) extrajudicial contact occurred; and
8
We do, however, encourage the trial court and counsel to omit the word “knowingly” from future
attempted murder instructions.
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(2) the contact pertained to the matter before the jury. Wahl v. State, 51 N.E.3d
113, 115 (Ind. 2016).
[20] In this case, the only portion of the record relating to Stuhlmacher’s mistrial
argument is the discussion between Stuhlmacher and the trial court following
the hearing on his motion to correct error. They were talking about
appointment of appellate counsel, and Stuhlmacher questioned whether a new
attorney would be able to get up to speed on everything that happened at the
trial, including matters outside the record:
Stuhlmacher: Um, now there will be some things that won’t
be . . . the person who was taking notes . . .
for the court won’t know about. Like . . . Jen
Rusk going back in the jury room after they’d
been picked to deliberate and then you going
back there to get her out of there. That’s not
gonna be in the notes.
Trial court: I would deny your statement that at any time
during the trial I entered the jury room. That
is simply—
Stuhlmacher: You went back in—
Trial court: —stop talking for a moment. That is simply
not true. And I will not allow you to try to
redirect the record into facts that will never
appear, did not happen and simply are
unwarranted so—
***
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Trial court: Mr. Stuhlmacher . . . This is over. I’ll
appoint a public defender. . . . I’m not going
to argue with you without a lawyer here
representing you. I’m not gonna try to have
you make a record of what you believe the
facts are. . . .
Tr. Vol. V p. 16-18.
[21] Stuhlmacher argues that, when this alleged incident occurred during the trial,
his attorney should have requested a mistrial. But Stuhlmacher’s own self-
serving, after-the-fact statements, which were vehemently denied by the trial
court, do not amount to sufficient evidence for us to glean what, if anything,
actually occurred. We cannot discern who Jen Rusk is, when she allegedly
entered the jury room, what was allegedly discussed when she entered, or what
the trial court’s involvement allegedly was. In other words, Stuhlmacher has
not established that there was any extrajudicial contact with the jury at all.
Under these circumstances, we cannot conclude that trial counsel was
ineffective for failing to request a mistrial.9
[22] The judgment of the trial court is affirmed.
Bailey, J., and Altice, J., concur.
9
Because Stuhlmacher raised an ineffective assistance of trial counsel claim on direct appeal, he is foreclosed
from bringing an ineffective assistance of trial counsel claim in a future post-conviction proceeding. Rogers v.
State, 897 N.E.2d 955, 965 (Ind. Ct. App. 2008).
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