Price v. State

ATTORNEY FOR APPELLANT            ATTORNEYS FOR APPELLEE

Katherine A. Cornelius            Steve Carter
Marion County Public Defender           Attorney General of Indiana
  Office
Indianapolis, IN                  Adam M. Dulik
                                        Deputy Attorney General
                                        Indianapolis, Indiana





                                   IN THE

                          SUPREME COURT OF INDIANA



KERRIE PRICE,                           )
                                        )
      Appellant (Defendant Below),      )
                                        )
            v.                          )  No. 49S00-0006-CR-385
                                        )
STATE OF INDIANA,                       )
                                        )
      Appellee (Plaintiff Below). )








                    APPEAL FROM THE MARION SUPERIOR COURT
                     The Honorable Robyn Moberly, Judge
                       Cause No. 49G02-9702-CF-028645



                               April 10, 2002

SHEPARD, Chief Justice.


      Appellant  Kerrie  Price  fatally  shot  two  security  guards  at  an
apartment in an Indianapolis neighborhood called the Meadows, and his  trial
eventually led to a sentence of life without parole.  We affirm.


                         Facts & Procedural History

      On the afternoon of February 19, 1997, security  guards  Robert  Black
and Bryan Northern heard someone making loud “weird” noises at an  apartment
complex where they worked on the northeast side of the city.  They told  the
offender to quiet down, but he made the noise again and added an  obscenity.
 The noisemaker and his cousin then ran into an apartment building  at  4138
Edgemere Court.

      Black and Northern pursued the two young men  into  the  building  and
began knocking on doors to locate them.  The guards asked  the  occupant  of
apartment D2 if she had seen  anyone  wearing  a  white  t-shirt  enter  the
building, but she had not.  She heard the guards go next door and  knock  at
William Colquit’s apartment.

      Price, wanted on an outstanding  warrant  for  failure  to  appear  in
court on a probation violation charge, was  in  that  apartment.   He  later
told a friend that two security guards knocked on the  door,  asked  whether
he lived  there,  and  requested  identification.   He  went  to  a  closet,
purportedly to retrieve his identification, but instead grabbed  a  gun  and
fired at the guards.[1]

      Price hid in a nearby apartment until a friend sneaked him into a  car
and drove him to another  location.   In  the  succeeding  days  he  changed
locations three more times, once in  the  trunk  of  a  car,  to  evade  the
police.  On February 22nd, a SWAT team forced Price out of hiding with  tear
gas after a five-hour effort  to  persuade  him  to  voluntarily  release  a
hostage and surrender.  During the standoff Price told a  police  negotiator
that he was not present at the shootings,  although  he  later  changed  his
story and claimed he shot Black and Northern in self-defense.[2]

      Black died from multiple gunshot wounds.  Northern died after  several
weeks in the hospital of infection caused by multiple gunshot wounds.

      The State charged Price with two  counts  of  murder  and  sought  the
death penalty.  The jury found Price guilty on both counts  and  recommended
a sentence of life without parole, which the court imposed.


                          I. Evidentiary Challenges

      Decisions to admit or exclude  evidence  are  matters  for  the  trial
court’s discretion.  See Minnick v. State, 544 N.E.2d 471 (Ind.  1989).   We
afford these decisions great deference on  appeal,  reversing  only  when  a
manifest abuse of discretion denies the defendant a fair trial.  Id.


      A.  The Photographs of Price.   At  trial  the  State  introduced  two
photographs found at the crime scene.  Each showed  Price  at  a  club  with
four companions.  He was gesturing in a manner that could be interpreted  as
a gang sign.
      The  defense  argued  that  the  photographs  were   prejudicial   and
irrelevant because identification was not an issue.  The State  acknowledged
that the defense was not contesting Price’s presence at  the  shooting,  but
argued that the photographs were relevant “to show the guilty  knowledge  of
the defendant” by demonstrating that he had changed his  hairstyle  and  had
gold caps removed from his teeth.[3]  (R. at 5539-40.)


      Defense counsel took responsibility for advising Price to  change  his
appearance “to look proper and dignified here in a court of law, in a  death
penalty  case.”   (R.  at  5540.)   Nonetheless,  the  court  admitted   the
photographs as “minimally relevant,” saying,  “[O]bviously  his  looks  have
dramatically changed.  I think it’s fair for the . . . jurors on  their  own
to observe what he looked like at that time.”  (R. at 5541.)


      We agree with Price that the court erred in admitting the photographs.
 There is no contention here that Price changed his appearance  as  part  of
his efforts to evade capture, or to otherwise foil identification before  or
during trial.


      Because  identification  was  not  at  issue,  the  photographs   were
irrelevant.  See Ind. Evidence Rule 402.  Mostly, they  seemed  designed  as
character evidence inadmissible under Ind. Evid. R. 404(a) (“Evidence  of  a
person’s character or a  trait  of  character  is  not  admissible  for  the
purpose of proving action in conformity therewith on a particular  occasion,
except:  (1) Character  of  accused.   Evidence  of  a  pertinent  trait  of
character offered by an accused, or by the prosecution to rebut the same;  .
. . .”).


      A defendant does not open the door to otherwise inadmissible character
evidence merely by dressing and grooming in a manner appropriate for  court.
 Tailoring one’s appearance to that occasion may indicate  consciousness  of
social stereotypes as easily  as  consciousness  of  guilt,  because  “[f]or
unnumbered ages the external appearance has been deemed to be  an  index  to
the internal man.”  Henry Hardwicke, The Art  of  Winning  Cases  or  Modern
Advocacy 153 (1894) (quoted in Richard H. Underwood, Truth Verifiers:   From
the Hot Iron to the Lie Detector, 84 Ky. L.J. 597, 622 (1995)).


      Photographs showing how a defendant looked at the time  of  the  crime
are frequently probative.  Here, however, they  largely  invited  jurors  to
evaluate guilt based on whether  the  defendant  looked  like  the  type  of
person who would commit this sort  of  crime.   This  is  what  Rule  404(a)
prohibits.


      Nevertheless, "[w]e disregard  error  in  the  admission  of  evidence
unless it affects the substantial rights of a party."  Willey v. State,  712
N.E.2d 434, 444 (Ind. 1999) (citing, inter alia, Ind. Trial  Rule  61).   In
light of other evidence that Price shot the  two  security  guards  multiple
times while receiving  no  injuries  himself  and  later  confessed  to  two
friends  that  he  fired  first  and  without  provocation,  the   erroneous
admission of the two photographs was harmless.


      B.  The Autopsy Photographs.  The State introduced  seven  photographs
from Black’s autopsy to illustrate a pathologist’s testimony concerning  the
number and location of Black’s gunshot wounds.  The defense objected to  two
photographs that showed wounds caused by surgical  procedures  performed  on
Black during lifesaving efforts, and one that showed  an  autopsy  wound  to
Black’s head.


      The court allowed all  the  photographs  because  each  of  the  seven
uniquely  illustrated  Black’s  wounds.   The  pathologist  identified   and
explained the wounds that resulted from surgical and autopsy procedures.


      One of the  challenged  photographs  illustrated,  in  perspective,  a
gunshot wound that struck Black in his back.  Another  illustrated  a  chest
wound Black suffered when “bent forward, if he was on his feet;  or  .  .  .
already on the ground.”    (R.  at  6701,  6759.)   Both  were  relevant  to
Price’s claim of self-defense.


      The defense also objected to all three autopsy photographs of Northern
that were offered as evidence, arguing that  they  were  irrelevant  because
the pathologist could not distinguish  bullet  entry  wounds  from  surgical
wounds.   The  State  countered   that   the   photographs   supported   the
pathologist’s testimony that he found possible entry wounds consistent  with
bullet holes in the shirt Northern was wearing when he  was  shot  and  with
Northern’s  internal  gunshot  injuries.   The   photographs   also   showed
manifestations  of  sepsis  from  gunshot  wounds,  which  the   pathologist
testified  caused  Northern’s  death.    The   court   allowed   all   three
photographs.


      Although these  photographs  were  unpleasant,  all  were  unique  and
relevant to establishing cause of death and the number and nature of  wounds
the victims suffered.  The trial court  did  not  abuse  its  discretion  in
concluding that any potential prejudice did not substantially  outweigh  the
photographs’ probative value.  See Evid. R. 403.


      C.  Evidence of a Victim’s Character.  Price  argues  that  he  should
have been allowed to attack Black’s character by introducing  evidence  that
Black entered into  an  illicit  arrangement  with  the  Rocky  Ripple  town
marshal  so  that  he  and  employees  of  his  security  company  could  be
deputized.  (Appellant’s Br. at 9-13.)  Price also challenges the  exclusion
of evidence that on  three  prior  occasions  Black  “forced  his  way  into
apartments when he had no authority.”  (Appellant’s Br. at 12-13.)


      Price does not assert that he was aware of  this  information  at  the
time of the shooting, so he cannot claim that it was relevant to  show  that
he acted in self-defense because he had reason to fear  Black.   Rather,  he
argues that repeated references to the  victims  as  “officers”  opened  the
door to evidence of their character, because “[t]he designation  of  ‘police
officer’ carries with it a belief by most people that the [officer] will  be
more calm in the face of opposition, relaxed and ready to respond  in  times
of danger, show more integrity and be more  truthful.”     (Appellant’s  Br.
at 9-10.)


      He cites no authority to support this argument.  He acknowledges  that
defense counsel read a stipulation to  the  jury  that  neither  victim  had
police powers.  (Appellant’s Br. at 10; R. at 7319.)


      Indiana Evidence Rule 404 generally excludes character  evidence,  but
provides an exception for “[e]vidence of a pertinent trait of  character  of
the victim of the  crime  offered  by  an  accused.”   Evid.  R.  404(a)(2).
Evidence Rule 405 governs methods of proving character.  Rule 405(a)  allows
direct examination in the form of testimony as to reputation or in the  form
of an opinion.  Inquiry into specific instances of  conduct  is  limited  to
cross-examination or when character or a trait of character is an  essential
element of a charge, claim, or defense.  Evid. R. 405(a), (b).


      In Brooks v. State, 683 N.E.2d 574 (Ind. 1997), we discussed how these
rules operate in a situation similar to the one  at  hand.   Brooks  fatally
shot a man after an argument that began at a bar.  Id. at  575.   He  sought
to introduce testimony that the victim had been charged with two  counts  of
battery three years earlier and convicted on one  of  the  counts.   Id.  at
576.  We said:
      Indiana Evidence Rule 405 permits proof of the  violent  character  of
      the victim by reputation or opinion testimony.  In this case, however,
      Brooks did not seek to  introduce  reputation  or  opinion  testimony.
      Instead, he attempted to introduce direct testimony  of  two  specific
      prior batteries to show [the victim’s] violent propensities.  Evidence
      of specific incidents is permissible only on  cross-examination  of  a
      character witness pursuant to Rule 405(a), or when  character  ‘is  an
      essential element of a charge, claim, or  defense’  pursuant  to  Rule
      405(b).  Neither situation is presented here.  In an offer  to  prove,
      defense counsel stated that he proposed to call the witness to testify
      about the incidents, not that he intended to cross-examine a character
      or opinion witness.  Nor  was  the  victim’s  character  an  essential
      element of Brooks’ claim of self-defense.  Whether or not [the victim]
      had violent propensities, the jury could still determine  that  Brooks
      did not act in self-defense.


Id. at 576-77 (citations and footnotes omitted).

      The same  is  true  here.   Price  sought  to  introduce  evidence  of
specific instances of Black’s prior conduct to show that Black  had  violent
propensities.   The  trial  court  appropriately  refused  to   admit   this
evidence.[4]


      D.  A Witness’s Plea  Agreement.   Turkessa  Guthrie,  Price’s  former
girlfriend, helped  Price  escape  from  the  Meadows  on  the  day  of  the
shootings and hide from police for the next three days.  The  State  charged
Guthrie with assisting a criminal as a class C felony.[5]   It  reduced  the
charge to assisting a fugitive from  justice,  a  class  A  misdemeanor,  in
return for Guthrie’s guilty plea and testimony against Price.


      Price argues  that  “Ms.  Guthrie’s  altered  testimony  was  obtained
through illegal conduct by  the  State  in  the  form  of  an  illegal  plea
agreement.”  (Appellant’s  Br.  at  24.)   We  need  not  elaborate  on  the
reasoning behind this argument  because even if Price is correct,  he  lacks
standing to raise this issue.


      In Bedwell v. State, 481 N.E.2d 1090, 1092 (Ind.  1985),  a  defendant
argued without success that he should be allowed to attack the  legality  of
a suspended sentence offered  to  a  State’s  witness  as  part  of  a  plea
agreement.  We said:
      This is, after all, an  appeal  of  Appellant's  convictions  and  any
      challenge to the legality of the plea  agreement  between  [the  State
      witness] and the State must be made  by  [that  witness]  in  his  own
      independent action. . . . [T]he plea agreement was relevant only  with
      regard to  [the  witness’s]  credibility  before  this  jury  and  its
      legality would not affect [the witness’s] duty to  testify  truthfully
      while under oath.  Moreover, Appellant was  allowed  to  fully  cross-
      examine [the witness]  and  had  every  opportunity  to  discredit  or
      otherwise challenge [the witness’s] credibility.

Id.



      Similarly, here, the circumstances of Guthrie’s testimony  were  fully
disclosed.  The jury heard about the plea  agreement  and  a  copy  of  that
agreement was  entered  into  evidence.   Guthrie  testified  that  she  was
originally charged with a C felony for  assisting  Price.   Price  therefore
had a full opportunity to attack Guthrie’s credibility,  and  any  challenge
to the legality of her plea agreement would be her claim, not his.


       E.   Other  Rule  404  Challenges.   Price  raises  four   additional
challenges to evidence he claims was  improperly  admitted  to  impeach  his
character.  (Appellant’s Br.  at  20-23.)   He  claims  error  in  admitting
evidence, first, about the history of the gun  used  in  the  shooting  and,
second,  about  his  flight  and  ultimate  capture.   Because  he  made  no
objection at trial, he has not preserved these claims for appeal.

      Third in this list is a claim involving State  witness  Dorain  Moore,
at whose house Price was hiding when he was finally apprehended.   At  trial
Moore claimed  to  have  forgotten  his  activities  the  day  those  events
occurred.  He contradicted his own deposition testimony by denying  that  he
saw Price when he arrived home the night of the standoff.

      The defense stipulated to admission of Moore’s  deposition  and  prior
statement because “he’s come really close to committing perjury . .  .  he’s
making a mockery of this trial and we want him out of here.”  (R. at  6160.)
 The judge then pointed out for the record that Moore greeted Price  in  the
courtroom by saying, “Hey man, what’s up?”,  which  might  imply  a  rapport
between the two.  (R. at  6160.)   The  defense  asked  that  Moore  not  be
brought back into the courtroom based  on  his  unpredictable  demeanor  and
behavior, and the court agreed.

      The court allowed the State to present  evidence  that  after  Moore’s
testimony, as the jury exited the courtroom, Moore asked  Price  whether  he
was “doing all right” and Price nodded in the  affirmative,  then  both  men
laughed.  (R. at 6633.)  The court reasoned that the incident  was  relevant
to show Moore’s bias.

       Price  now  argues  that  this   testimony   improperly   highlighted
irrelevant behavior and “discredit[ed] Mr. Price by drawing attention  to  a
situation created  by  a  witness  already  recognized  as  uncontrollable.”
(Appellant’s Br. at 21.)  We disagree.  The incident was  relevant  to  show
that Moore was biased in favor of Price,  see  Evid.  R.  616,  which  could
support an inference that Moore’s memory lapses were deliberate  efforts  to
help his friend.  It was not unduly prejudicial and, as the defense  pointed
out, the exchange occurred in open court and may well have been observed  by
some jurors.  (R. at 6620.)  See Evid. R. 402, 403.

      As a fourth point, Price  says  the  court  should  not  have  allowed
testimony that Lisa Wooden, whom Price claimed was present in the  apartment
with him when the shooting occurred, was arrested for assisting a  criminal.
 The State successfully argued that the testimony was  relevant  to  explain
why Wooden was unavailable to testify, and because she could have  been  the
second person a witness saw running from the crime  scene.   We  agree  that
this evidence was relevant  and  not,  as  Price  argues,  an  impermissible
attack on his character.




                      II. Claims About Jury Instruction

      Price  raises  two  challenges  to  the  court’s  instructions.   Jury
instructions,  like  evidentiary  issues,  lie  within  the  trial   court’s
discretion, and we reverse only when the instructions  considered  in  their
entirety misstate the law or otherwise mislead the jury.  Travis  v.  State,
488 N.E.2d 342, 345 (Ind. 1986).


      A.   Preliminary   Self-Defense   Instruction.    Price   claims   the
preliminary  instruction  on  self-defense  denied   him   a   fair   trial.
(Appellant’s Br. at 14.)  The court instructed the  jury  that  self-defense
was an issue in the case and gave a definition of self-defense, but  not  on
the burden of proof for self-defense.  The court  advised  the  jurors,  “In
the event self-defense is an issue in this case, you  will  be  informed  by
the Court in the Final Instructions as to the burden of proof on this  legal
defense.”  (R. at 2140.)  Price acknowledges  that  the  final  instructions
properly explained the burden of proof.  (See Appellant’s Br. at 14-16.)


      Preliminary and final instructions are considered as a whole,  not  in
isolation.  Bonham v. State, 644 N.E.2d 1223, 1227 (Ind. 1994).   Therefore,
the court adequately instructed this jury on self-defense.[6]


      B.  Lesser Included Offenses.  Price also challenges the trial court’s
preliminary instructions that  the  defendant  was  not  on  trial  for  any
offenses not charged, and that the charges were two counts  of  murder.   He
contends that these instructions misstated the law and misled  the  jury  by
precluding a verdict that Price was guilty  of  a  lesser  included  offense
such as voluntary manslaughter.  (Appellant’s Br. at 30-32.)


      This  ignores  several   final   instructions   on   lesser   included
offenses.[7]  Price does not argue that any of these instructions  misstated
the law, and the instructions made it quite clear that the  jury  could  and
should consider lesser included offenses as part of its deliberations.


      Price’s argument  that  two  preliminary  instructions  denied  him  a
defense is meritless.




                         III. Remorse as a Mitigator

      Price argues, “The trial court failed to recognize Mr. Price’s genuine
remorse regarding the deaths of Mssrs. Black  and  Northern.”   (Appellant’s
Br. at 42.)  Price expressed his remorse by saying he knew how  it  felt  to
lose a loved one, because his own mother died of natural  causes,  and  that
he was “very sorry about what happened.”  (R. at 7566-67.)


      In Bonds v. State, 721 N.E.2d 1238, 1243 (Ind.  1999),  the  defendant
said, “I’m remorseful for all what happened.  I was just in the wrong  place
at the wrong time . . . I just don’t know what  went  wrong.”   We  rejected
his claim that the trial court erred by not finding remorse as a  mitigating
circumstance, noting that this statement was equivocal  at  best  and  “well
short of a full acceptance of responsibility.”  Id.  The same is true  here.





                            IV. Order to Pay Fees

      In January 1998, the defense moved  for  a  continuance  so  it  could
depose additional potential witnesses.  The court postponed the  trial  from
April 6, 1998, to October 5, 1998, and ordered all  discovery  completed  by
July 27, 1998.  On  September  30,  1998,  the  defense  again  requested  a
continuance, which the court again granted.


      The court found, however, that both the State and defense were  guilty
of violating the discovery deadline,  and  assessed  each  party  $2,118.60,
saying, “The cost to the County of the jury selection process, to  date,  is
$4,145.20, plus  mailing  fees  of  $92  (400  summonses  at  23  cents  per
summons), for a total of $4,237.20.”  (R. at 1606.)


      Indiana Trial Rule 37(B)  authorizes  trial  courts  to  impose  costs
arising out of failure to comply with a discovery order on  the  party  that
disobeyed the order.  Trial courts “are  granted  deference  in  determining
what constitutes substantial compliance with discovery orders, and  we  will
affirm their determinations as to  violations  and  sanctions  absent  clear
error and resulting prejudice.”  Dye  v.  State,  717  N.E.2d  5,  11  (Ind.
1999), cert. denied, 531 U.S. 957 (2000).


      Price’s attorney argues that the order was improper because the  State
was entirely to blame, and that the court did  not  adequately  explain  the
basis for the amount assessed.  (Appellant’s Br. at 37-41.)   We  elect  not
to elaborate on the contentions of  the  two  combatants  (“defense  noticed
tardy depositions” and “State wrongly delayed turning over  documents”  (see
Appellee’s Br. at 37-38; Appellant’s Br. at  37-39)),  inasmuch  as  we  are
satisfied that the trial judge was within her discretion  in  finding  fault
on both sides.


      On the other hand, Price is correct that a court imposing penalties of
$4,145.20 needs to be somewhat more descriptive  about  the  basis  for  its
calculation than “cost to the county of jury selection, to  date.”   (R.  at
1606-07.)  It may be that this represents the cost of  selecting  400  names
from the prospective juror database and printing summonses, but we are  left
only to guess.   The  court  added  the  cost  of  mailing  summonses  (“400
summonses  at  23  cents  per  summons”  (Id.)),   a   completely   adequate
explanation of that element of the penalty.


      Of course, if there  is  more  to  be  known  about  why  the  court’s
calculation was appropriate, neither party has much  incentive  to  document
it.  We affirm the postage portion of the penalty and  authorize  the  trial
court to enter a more particularized order concerning its penalty should  it
desire to do so.



                                 Conclusion

      We affirm Price’s conviction and sentence, and the court’s  assessment
of costs, with the exception noted immediately above.


Dickson, Sullivan, Boehm, and Rucker, JJ., concur.
-----------------------
[1] At trial Price claimed that the guards broke into the apartment and
fired first, forcing Price to return the fire in self-defense as he fled to
the back of the apartment, then out the front door.  (R. at 6962-72.)  On
appeal, however, we do not weigh evidence or judge credibility of
witnesses, and we look only to evidence favorable to the judgment.  Hatton
v. State, 626 N.E.2d 442 (Ind. 1993).
[2] Price also gave a television interview after his arrest, in which he
said, “They know I wasn’t there.  They know for a fact I wasn’t nowhere
inside that apartment complex at the time of that shooting. . . . I didn’t
fire nothing. . . . I don’t know what happened that day. . . I wasn’t there
when the shooting happened. . . . I didn’t do nothing.”  (R. at 6781,
State’s Exh. 271.)  At trial he claimed he lied only because jail personnel
had threatened him, although he did not mention these threats during the
interview and appeared quite calm and unhurried on camera.  (Id., R. at
7051-53.)
[3] The State also argued that the photos proved that Price met another
witness at this particular club, but the defense pointed out that where the
two met was minimally relevant and offered a stipulation.  (R. at 5539-40.)
 The State acknowledged that it did not intend to try to argue or prove
gang affiliation.  (R. at 5541.)
[4] We note that the defense was allowed to introduce evidence that Black
was carrying a gun the day of the shootings although in 1987, after an
Indiana State Police administrative hearing, he was deemed “not a proper
person to be licensed” to carry a handgun and his license was revoked.  (R.
at 7190, 7298, 7303, 7386.)
[5] Indiana Code Ann. § 35-44-3-2 (West 1998) says:
      A person not standing in the relation of parent, child, or  spouse  to
      another person who has committed a crime or is a fugitive from justice
      who, with intent to hinder the apprehension or punishment of the other
      person, harbors, conceals, or otherwise  assists  the  person  commits
      assisting a criminal, a Class A misdemeanor.  However, the offense  is
      . . .
           (2) a Class C felony if the person assisted has committed murder
           or a Class A felony, or if the assistance was providing a deadly
           weapon.





[6] The defense invoked the Sixth and Fourteenth Amendments when objecting
to the instruction.  (R. at 5007.)  Price does not argue a federal
constitutional claim on appeal, however, so we do not address such a claim.

[7] Final Instruction Five defined “included offense” and listed voluntary
manslaughter and reckless homicide as offenses included in murder.  (R. at
2169.)  Final Instructions Six and Seven explained the elements of both
murder and voluntary manslaughter and said that if “the State failed to
prove beyond a reasonable doubt that the Defendant was not acting under
sudden heat, you may find the Defendant guilty of Voluntary Manslaughter, a
Class A felony.”  (R. at 2170-71.)
   Final Instructions Eight and Nine described reckless homicide as an
included offense of murder, defined reckless homicide and listed its
required elements, and concluded, “If the State did prove each of these
elements beyond a reasonable doubt, you may find the Defendant guilty of
Reckless Homicide, a Class C felony.”  (R. at 2174-75.)  Final Instruction
Ten instructed the jury to deliberate on the mitigating factor of sudden
heat if it found the essential elements of murder proven, and to deliberate
on the offense of reckless homicide if it did not.  (R. at 2176.)  It
specifically said, “If the State has proven each of the essential elements
of a lesser included offense beyond a reasonable doubt, you may find the
Defendant guilty of the lesser included offense.”  (Id.)