from the Vanderburgh Superior Court Trial Court Cause No.
82D03-1604-MR-2081 The Honorable Robert J. Pigman, Judge
Attorney for Appellant Matthew J. McGovern Anderson, Indiana
Attorneys for Appellee Curtis T. Hill, Jr. Attorney General
of Indiana Katherine Cooper Deputy Attorney General
Michael Damien Howell was convicted of level 2 felony
voluntary manslaughter, level 6 felony criminal recklessness
while armed with a deadly weapon, level 3 felony attempted
robbery while armed with a deadly weapon, and level 6 felony
auto theft. On appeal, he contends that his voluntary
manslaughter conviction must be reversed because an allegedly
erroneous jury instruction resulted in fundamental error. He
also argues that his convictions for criminal recklessness
and attempted robbery violate double jeopardy principles and
requests that we vacate his criminal recklessness conviction.
In addition, Howell raises three challenges to his
fifty-seven-year aggregate sentence. He argues that the trial
court improperly enhanced his sentence for voluntary
manslaughter for using a firearm in the commission of the
offense. He also asserts that the trial court abused its
discretion in sentencing him by finding improper aggravating
factors. Finally, he argues that his sentence is
inappropriate based on the nature of the offenses and his
We conclude that the jury instructions as a whole did not
mislead the jury, and therefore we affirm his voluntary
manslaughter conviction. However, we conclude that his
criminal recklessness conviction and his attempted robbery
conviction run afoul of the constitutional protection against
double jeopardy, and therefore we remand with instructions to
vacate his criminal recklessness conviction. As for his
sentencing challenges, we conclude that the trial court did
not err in enhancing his voluntary manslaughter sentence and
did not abuse its discretion in finding aggravating factors,
and we conclude that he has failed to carry his burden to
show that his sentence is inappropriate. Therefore, we affirm
and Procedural History
In February 2016, Howell and his wife, with whom he has two
children, separated. While Howell was staying with a friend,
he was introduced to Beverly Karns. Howell moved in with her.
Other individuals also lived with Karns including Brandon
Davis and Abigail Autry. Howell and Karns used marijuana and
methamphetamine together. While Howell lived with Karns, her
drug use increased and she became paranoid that someone was
stealing from her. Karns sometimes carried a gun in her
purse. She owned a .38 Special revolver and a .22 rifle.
Howell went with Karns to buy a .45 caliber handgun. Karns
also bought a 9-millimeter handgun. Howell and Karns
practiced shooting together. Karns began making romantic
advances toward Howell, but he was not interested.
In early April 2016, Karns and Howell were in her kitchen
when she accidentally fired one of her guns in Howell's
direction. After that, Howell moved out of Karns's
residence and stayed at a hotel. In the hotel parking lot,
while in a vehicle with his wife and children, Howell had a
confrontation with Karns, Davis, and Autry, during which
Karns accused Howell of stealing her property. During the
confrontation, Autry pointed a gun at Howell and demanded
that he open his trunk, Karns pointed a gun at Howell's
wife, and Howell pointed a gun at Davis. Eventually, Davis
persuaded Karns and Autry to back off, and Howell drove away.
Later Karns called Howell to apologize.
In the early morning hours of April 9, 2016, Howell was
staying with Coty Clark and his wife in Vanderburgh County.
Karns came to Clark's house, and she and Howell talked
and used drugs. Karns left and returned to Clark's home
around 8:00 or 9:00 a.m. with some of Howell's
belongings. Karns told Howell that she wanted him to move
back in with her and expressed her desire to have a romantic
relationship with him. Howell told her that he was not
interested and that he never wanted to see her again. Karns
became angry, and she and Howell argued in the middle of the
living room. At some point, Karns started going through her
purse. Howell saw her pull something out of her purse that
flashed like it was chrome, and he heard a clinking noise of
metal on metal. He thought that she was going to pull a gun
on him, and he was frightened. He pulled his gun from his
waistband and shot Karns in the head. Tr. Vol. 3 at 175-76.
Karns fell to the floor, and Howell saw that she had an
e-cigarette and not a weapon. Howell "freaked out."
Id. at 179. Karns died because of the gunshot wound.
Clark was home at the time, and Howell's father had come
to visit Howell. Howell's father drove Karns's truck
to the back of Clark's house, and he and Clark loaded
Karns into the back of her truck. Howell gave his father a
hug and removed his wedding band and gave it to his father.
Howell's father told Howell to wait a minute while he
pulled his car around and they would figure out what to do.
By the time Howell's father retrieved his car and drove
it to the back of the house, Howell had taken Karns's
truck and left.
While driving in Warrick County, Howell lost control of the
truck. It flipped and landed in a ditch. Howell's head
was injured, and he was still under the influence of
methamphetamine and marijuana. He got out of the truck,
grabbed some stuff, and ran from the scene into a wooded
A witness saw Howell flip the truck and land in the ditch,
and she called 911. While she talked to the dispatcher, she
saw Howell get out of the truck, grab some stuff, and run up
the hill and into the woods. She went to the accident site to
see if anyone else was hurt, and she found Karns's body
wrapped in a carpet in the truck's camper shell, which
had come off when the truck flipped.
While still in Warrick County, Howell came out of the woods
as Charles Scales was backing his truck out of a driveway. A
witness noticed Howell standing by Scales's truck. She
observed Scales briefly pause from backing out and Howell
reach for the back door of Scales's truck. She saw Howell
pull a gun and start firing at Scales. Scales quickly resumed
backing out. Howell fired at Scales five times. One of the
bullets hit Scales's leg, but he was able to drive
away. The witness ran to get her phone and call
911. Meanwhile, Howell noticed a Ford Explorer, saw that the
keys were in the ignition, and drove it away.
Law enforcement in multiple counties were dispatched, the
Explorer was located, and a car chase ensued. Eventually,
Howell pulled over somewhere in Dubois County and surrendered
to police. In Vanderburgh County, the State charged Howell
with the murder of Karns and sought a sentencing enhancement
for his use of a firearm in the commission of the offense.
The State also charged Howell with level 1 felony attempted
murder of Scales, level 3 felony attempted robbery of Scales
while armed with a deadly weapon, and level 6 felony auto
theft. Howell filed a motion to dismiss the counts for the
offenses that were committed in Warrick County. The trial
court denied his motion to dismiss, finding that his Warrick
County offenses for purposes of venue and/or
joinder were "part of the series of events
that constituted the commission" of the offenses
committed in Vanderburgh County. Appellant's App. Vol. 2
A jury found Howell guilty of level 2 felony voluntary
manslaughter of Karns as a lesser-included offense of murder,
guilty of level 6 felony criminal recklessness as a
lesser-included offense of attempted murder of Scales, and
guilty of attempted robbery and auto theft as charged. Howell
admitted to using a firearm in the commission of voluntary
In sentencing Howell, the trial court found the following
aggravating factors: Scales was injured and was over
sixty-five years old; Howell's history of substance
abuse; Howell's continued abuse of drugs after completing
a forensic diversion program; children were present when he
committed voluntary manslaughter; his attempted disposal of
Karns's body; and police were forced to engage in a
high-speed chase before Howell eventually surrendered.
Id. at 187-88. The trial court found no mitigating
circumstances. The trial court sentenced Howell as follows:
twenty-five years for his voluntary manslaughter conviction,
plus fifteen years for using a firearm in its commission; two
years for his criminal recklessness conviction and fifteen
years for his attempted robbery conviction, to be served
concurrent to each other but consecutive to his sentence for
voluntary manslaughter; and two years for his auto theft
conviction, to be served consecutive to the other counts, for
an aggregate sentence of fifty-seven years. This appeal
ensued. Additional facts will be provided as necessary.
1 - The jury instruction on voluntary manslaughter did not
result in fundamental error.
Howell contends that his conviction for voluntary
manslaughter, the lesser- included offense of his murder
charge, must be reversed because the trial court erred in
giving Final Instruction 9 ("Instruction 9"),
which addressed lesser-included offenses as follows:
If you find that the State has failed to prove any one of
the essential elements of the charged crimes of Murder
and Attempted Murder, you should then decide whether
the State has proved beyond a reasonable doubt all elements
of the included crimes of Voluntary Manslaughter and
Criminal Recklessness which have been defined for you.
If the State failed to prove each of the essential elements
of the included crime beyond a reasonable doubt, the
defendant should be found not guilty. If the State did prove
each of the elements of the included crime beyond a
reasonable doubt, you should find the defendant guilty of the
lesser included crime. You must resolve reasonable doubt in
favor of the accused downward from the specific crime charged
through the included offenses. You may not find the defendant
guilty of more than one of the offenses. Where there is a
reasonable doubt existing in your minds as to which degree of
an offense the defendant may be guilty of, he must be
convicted of the lower degree only. If there is reasonable
doubt as to all, then you must find the defendant not guilty.
Id. at 92 (emphases added).
In reviewing Howell's contention, we observe that
[t]he manner of instructing a jury is left to the sound
discretion of the trial court. We will not reverse the trial
court's ruling unless the instructional error is such
that the charge to the jury misstates the law or otherwise
misleads the jury. Jury instructions must be considered as a
whole and in reference to each other, and even an erroneous
instruction will not constitute reversible error if the
instructions, taken as a whole, do not misstate the law or
otherwise mislead the jury.
Quiroz v. State, 963 N.E.2d 37, 41 (Ind.Ct.App.
2012) (citations omitted).
Howell acknowledges that he failed to object to Instruction
9, and thus seeks to win reversal by claiming that it
constitutes fundamental error. See Knapp v. State, 9
N.E.3d 1274, 1281 (Ind. 2014) ("Failure to object at
trial waives an issue on appeal unless the appellant can show
fundamental error."). The fundamental error exception to
the contemporaneous objection rule is
extremely narrow, and applies only when the error constitutes
a blatant violation of basic principles, the harm or
potential for harm is substantial, and the resulting error
denies the defendant fundamental due process. The error
claimed must either make a fair trial impossible or
constitute clearly blatant violations of basic and elementary
principles of due process. This exception is available only
in egregious circumstances.
Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010)
(citations and quotation marks omitted).
Specifically, Howell contends that Instruction 9 erroneously
instructs the jury that it "should" decide whether
he was guilty of the lesser-included offense of voluntary
manslaughter "[i]f you find that the State has failed to
prove any one of the essential elements of the charged
crime of Murder." Appellant's App. Vol. 2 at 92.
Generally, conviction of a lesser-included offense must be
supported by proof of some, but not all, of the elements of
the charged crime. Coy v. State, 999 N.E.2d 937, 943
(Ind.Ct.App. 2013). However, voluntary manslaughter is
Indiana Code Section 35-42-1-3 defines voluntary manslaughter
(a) A person who knowingly or intentionally:
(1) kills another human being;
while acting under sudden heat commits voluntary
manslaughter, a Level 2 felony.
(b) The existence of sudden heat is a mitigating
factor that reduces what otherwise would be murder under
section 1(1) of this ...