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Pursuant to Ind. Appellate Rule 65(D), this Memorandum Decision shall not be regarded as precedent or cited before any court except for the purpose of establishing the defense of res judicata, collateral estoppel, or the law of the case. ATTORNEY FOR APPELLANT: LEANNA WEISSMANN Lawrenceburg, Indiana

FILED
Sep 03 2008, 9:20 am
of the supreme court, court of appeals and tax court

CLERK

ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ZACHARY J. STOCK Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
WILLIAM HENDERSON, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 15A01-0711-CR-496

APPEAL FROM DEARBORN CIRCUIT COURT The Honorable James Humphrey, Judge Cause No.15C01-0604-MR-1

September 3, 2008

MEMORANDUM DECISION - NOT FOR PUBLICATION

ROBB, Judge

Case Summary and Issues Following a jury trial, William Henderson appeals his conviction of murder and his sixty-five-year sentence, raising three issues, which we restate as four: 1) whether the admission of photographs of the victim constituted fundamental error; 2) whether the trial court abused its discretion in refusing to instruct the jury on the lesser included offense of voluntary manslaughter; 3) whether the trial court abused its discretion in finding the aggravating and mitigating circumstances; and 4) whether his sentence is inappropriate. Concluding the admission of the photographs did not amount to fundamental error, the trial court acted within its discretion in refusing to instruct the jury on voluntary manslaughter, the trial court acted within its discretion in finding the aggravating and mitigating circumstances, and the sentence is not inappropriate, we affirm. Facts and Procedural History Sometime during April 2005, Melissa Henderson, William's wife, began having an affair with James McCracken. About a week before her death, Melissa told William "that she wanted a divorce and that she didn't love him and that she'd found someone else." Tr. at 923. William pushed Melissa and hit her in the leg. At some point after this argument, William became suspicious that McCracken was this "someone else." On Wednesday, June 15, William sent McCracken a text message and left him three voice messages, indicating his desire to speak with McCracken. Also on Wednesday, William told Melissa that he knew of McCracken, and another physical altercation took place during which William pushed Melissa up against a wall. On Thursday, William

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borrowed a truck from Paul Hizer in order to follow Melissa. William took his friend, Darin Laird, along with him on this trip. Melissa went to work a little before midnight on Thursday, and worked until around 8:00 a.m. on Friday. She went to breakfast with some co-workers and returned home around 9:00 a.m. William was supposed to return the truck Friday morning, but called Hizer and told him he was traveling to Kentucky to investigate potential bids on some work projects. While in Kentucky, William fainted while attempting to rent a campsite and was taken to the hospital. After being discharged from the hospital, William drove back home and returned the truck on Friday evening. On his way back from Kentucky, William called Laird, who had previously asked William to help him move some boxes and do some work on Laird's new residence. After dropping the truck off, William picked up Laird, and the two went to William and Melissa's house. William and Laird found Melissa dead in the bedroom. It was later determined that she died of asphyxia due to strangulation. Police recovered a broken fingernail from the scene. DNA analysis revealed the presence of the DNA belonging to William and another anonymous person. The police initially investigated McCracken and William's uncle, Leland, as possible suspects, but eventually concentrated on William as inconsistencies in his story began to appear. Specifically, William at times denied knowing of Melissa's affair, and the police discovered that William had not been in Kentucky to bid on a job, as he had told officers.

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The State ordered a second autopsy, which was conducted on March 10, 2006. Dr. Dean Hawley performed this autopsy and determined that Melissa died from strangulation. On April 26, 2006, the State charged William with murder, a felony. A jury trial began on July 30, 2007. At trial, the State introduced numerous photographs of Melissa's body as it was discovered at the murder scene, at the funeral home, and during the two autopsies. William's counsel did not object to the introduction of nearly all of these photographs. The State also introduced evidence that, after Melissa's death, William began giving his two children approximately $100 per week and asked them not to tell investigating officers about the arguments he had with Melissa before her death. William took the stand and testified that he had not killed his wife and that they had not fought the morning of her death. At the close of evidence, William tendered instructions on the lesser-included offense of voluntary manslaughter and the definition of the term "sudden heat." The State objected, and the trial court rejected the instruction. On August 15, 2007, the jury found William guilty of murder. On September 15, 2007, the trial court held a sentencing hearing. At this hearing, William took the stand and admitted to lying at his trial. He stated: I've been living with a burden for two years. I lied in Court. I'm not lying today. On June 17, 2005, I'd like to get the record straight. I did leave my house that morning at 9:30, and I did return to my house at approximately, probably 10:30 that morning

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