MASSA, Justice.
Robert Lewis III brings this direct appeal after a jury convicted him of the murder of Jennifer Kocsis, murder in the perpetration of criminal deviate conduct, criminal deviate conduct, and resisting law enforcement. Lewis challenges various aspects of the proceedings below, including the admission of certain evidence, the adequacy of the jury instructions, and his sentence of life without the possibility of parole. We find no reversible error with respect to the convictions and affirm, but we reverse the sentencing determination and remand to the trial court for a sentencing order containing a personal statement from the judge that life without possibility of parole is the appropriate sentence for Lewis, consistent with Harrison v. State, 644 N.E.2d 1243 (Ind.1995) and Pittman v. State, 885 N.E.2d 1246 (Ind.2008).
On April Fool's Day, Lewis invited his friend, Rodney Taylor, to Pepe's Restaurant and Bar in Griffith, Indiana. Taylor picked up Lewis at his mother's home in Gary (Lewis's residence at the time) and drove them to Pepe's to drink and socialize. When Taylor wanted to leave before Lewis, Lewis said he would "find a way home," and Taylor left. Tr. at 235.
Lewis stayed at the bar, where he repeatedly asked Rebeca Hixon, a fellow patron, if she wanted to go home and "f* *k." Tr. at 235-36. When Hixon declined,
At 2:37 a.m., Lewis called his girlfriend Chakole Spurlock and asked her to pick him up near his mother's home in Gary. When she arrived, Lewis was carrying and wearing clothing covered with wet, fresh blood. As they drove away, Lewis separately threw each of his bloody shoes out the window. At Lewis's request, he and Spurlock went to a hotel in Merrillville, checking in around 4:00 a.m. Over the next few hours, Lewis made multiple sexual advances toward Spurlock, which she rejected. They then left the motel together, retrieved the discarded shoes, and in an alley near Spurlock's home set fire to the bloody clothing, the shoes, and Kocsis's car keys.
Later that morning, Kocsis was discovered brutally beaten to death in the parking lot of an abandoned school in Gary. The official cause of death was "multiple blunt-force injuries and manual strangulation." Tr. at 766. Kocsis also suffered cranial hemorrhages, a broken nose, jaw, and hyoid bone, multiple lacerations to the face and back of the head, injuries to the neck, throat, and larynx, and several contusions and scrapes to the hands, knees, and collarbone. There was also a shoe print on her arm.
Kocsis's skirt and underpants were around her knees, and there was a hand-shaped bruise or blood stain on her buttocks. Police found DNA not belonging to Kocsis on the outside of her anus. A second swab, which was inserted through her anus (but without first cleaning the outside) found the same DNA. While initial presumptive testing was positive for semen, the confirmatory test was inconclusive, and thus the DNA may have come from semen, skin, sweat, blood, or saliva. Kocsis's anus did not appear to have been penetrated, and there was no evidence of injury to the anus. Police also found Kocsis's car about four blocks away. Part of one of her teeth was embedded in the exterior of her car, and there was blood on the steering wheel.
Through security camera footage from Pepe's and witness statements, police identified Lewis as a suspect in Kocsis's murder. While police were in the neighborhood of Lewis's mother's home, they saw Lewis quickly exit the home, jump in his car, and drive off, escalating into a high-speed police chase which at times exceeded 90 miles per hour. Lewis eventually stopped himself and was peaceably taken into custody.
Lewis was charged with murder, felony murder, robbery, criminal deviate conduct, and resisting law enforcement. DNA testing confirmed Lewis's blood was on the steering wheel of Kocsis's car. Although the DNA in and around Kocsis's anus could not be positively matched to Lewis, multiple laboratory procedures were unable to exclude him, and only one out of approximately 423,000 African Americans would fit the genetic profiles found. The shoe print on Kocsis's arm matched the tread on the bottom of Lewis's burned
After a two-week trial, a jury convicted Lewis of all charges except robbery. The jury was subsequently unable to agree on a sentence; as a result, the trial court set a sentencing hearing,
Lewis now appeals, making a number of challenges to the trial proceedings, which we re-order and consolidate as follows: (1) Was the evidence sufficient to prove Lewis engaged in criminal deviate conduct? (2) Was it fundamental error for the trial court to omit a "reasonable theory of innocence" jury instruction under Hampton v. State, 961 N.E.2d 480 (Ind.2012)? (3)Did the trial court commit reversible error in admitting evidence of Lewis's prior conduct after drinking alcohol as "habit" evidence under Indiana Evidence Rule 406? (4) Was the trial court's sentencing order adequate and correct as a matter of law?
For sufficiency of evidence claims, "the standard rule of review involves a consideration of only the probative evidence and reasonable inferences supporting the verdict without weighing the evidence or assessing witness credibility. The evidence is sufficient if a reasonable trier of fact could conclude that the defendant was guilty beyond a reasonable doubt." Matheney v. State, 583 N.E.2d 1202, 1208 (Ind.1992) (internal citation omitted).
The crime of criminal deviate conduct was defined at the time of the offense by Indiana Code section 35-42-4-2 (2008):
Deviate sexual conduct was defined in Indiana Code section 35-31.5-2-94 (Supp. 2012) as an act involving either "(1) a sex organ of one (1) person and the mouth or anus of another person; or (2) the penetration of the sex organ or anus of a person by an object."
Lewis argues that the evidence does not prove beyond a reasonable doubt that he either put his penis in contact with Kocsis's anus, or that he penetrated her anus with an object. Specifically, Lewis asserts that the only evidence supporting the deviate sexual conduct charge was the DNA found on both the outer rim and the inside of Kocsis's anus. He contends this evidence is circumstantial and insufficient because: (1) the method of collecting the DNA allowed for cross-contamination, such that only the DNA on the outside of the anus could be reasonably relied upon; (2) there were no injuries to Kocsis's anus consistent with penetration; (3) the DNA itself, though initially identified as semen, could not be proven as such, and thus could have come from sweat, saliva or skin cells unrelated to a sex organ; and (4) the evidence supports an alternate theory that Lewis and Kocsis were engaged in consensual sex which "went horribly wrong." Appellant's Br. at 14.
In support, Lewis relies on Downey v. State, 726 N.E.2d 794, 797-98 (Ind.Ct.App. 2000), which held that rubbing a penis between a person's buttocks was not sufficient
Here, the evidence, as construed most favorable to the verdict,
Although Lewis made no objection at trial, he now requests that the Court find the failure to instruct the jury on a "reasonable theory of innocence" was fundamental error. "Failure to object at trial waives the issue for review unless fundamental error occurred." Treadway v. State, 924 N.E.2d 621, 633 (Ind.2010). "The `fundamental error' exception 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." Mathews v. State, 849 N.E.2d 578, 587 (Ind.2006). "The error claimed must either make a fair trial impossible or constitute clearly blatant violations of basic and elementary principles of due process." Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (internal quotations omitted).
In Hampton v. State, 961 N.E.2d 480 (Ind.2012), this Court reviewed its prior jurisprudence as to when a defendant is entitled (and indeed required) to receive a so-called "reasonable theory of innocence" jury instruction:
Id. at 491 (emphasis omitted). In Hampton, the only evidence that the defendant raped and murdered the victim was his DNA in her vagina, which plausibly could have arrived there through consensual sex. Id. at 494. Because that circumstantial DNA evidence was the only evidence, the trial court was required to give the "reasonable theory of innocence" instruction to the jury. Id. at 494-95.
Lewis claims that the DNA found on Kocsis's anus is the only evidence of deviate sexual conduct in this case, requiring the same inferential step as Hampton. Under his theory, it is equally plausible that Kocsis and Lewis were having consensual sex in the parking lot of the school when something went wrong. But, as described above with respect to Lewis's challenge to the sufficiency of the evidence, there is direct evidence that the activity was not consensual, such as Kocsis's tooth embedded in her car, Lewis's blood on her steering wheel, and the massive physical damage Kocsis suffered at the hands — literally — of Lewis. Given this evidence, it does not fit the requirements of Hampton for a mandatory jury instruction on the reasonable theory of innocence. Thus it was not fundamental error for the trial court to fail to give such an instruction.
The trial court allowed Rebecca Hixon, one of the women Lewis profanely propositioned on the night of the murder, to testify that in 2010 at a small gathering of friends, while intoxicated, Lewis "got up in [her friend's] face, and he started yelling at her." Tr. at 226. Additionally, the court allowed Rodney Taylor, who drove Lewis to Pepe's on the night of the murder, to testify that Lewis "goes to like from like a nice guy to a meaner person" when he is drinking. Tr. at 1290. Lewis contends that this testimony was inadmissible under Indiana Evidence Rule 404(b), which prohibits evidence of prior bad acts.
"The trial court has discretionary power on the admission of evidence, and its decisions are reviewed only for an abuse of that discretion." Wilson v. State, 765 N.E.2d 1265, 1270 (Ind.2002). With respect to admission of evidence under Rule 406, habit is defined as "evidence of one's regular response to a repeated specific situation." Carlson v. Warren, 878 N.E.2d 844, 850 (Ind.Ct.App.2007) (quoting Black's Law Dictionary 597 (8th ed. 2004)). It is clear that the challenged testimony cannot qualify as evidence of habit. A single event, as described in Hixon's testimony, does not constitute a habit. See Wanke v. Lynn's Transp. Co.,
That being said, Lewis still must show that the erroneous admission was prejudicial. "[N]ot every trial error requires reversal. Errors in the admission or exclusion of evidence are to be disregarded as harmless error unless they affect the substantial rights of the party. To determine whether an error in the introduction of evidence affected the appellant's substantial rights, this Court must assess the probable impact of that evidence upon the jury." Turben v. State, 726 N.E.2d 1245, 1247 (Ind.2000) (internal citations omitted). Here, the testimony of Hixon, Harris, and Spurlock regarding Lewis's repeated aggressive demands for sex on the night of Kocsis's murder paint a sufficiently clear picture of his temperament and comportment. It is unlikely that a jury was significantly swayed by further testimony that Lewis was a mean drunk on top of everything else they heard regarding his conduct on the night of the murder. The admission of this testimony was thus not reversible error. See Buchanan v. State, 767 N.E.2d 967, 969-70 (Ind.2002) (although admission of sketches and photographs of nude young girls was error, it was harmless given the amount of other evidence supporting the conviction for child molestation).
Indiana Code section 35-50-2-9(g) (2014) states, with respect to sentencing after a murder conviction:
Indiana Code section 35-50-2-9(l) requires the State to prove beyond a reasonable doubt that at least one aggravating circumstance exists and that it outweighs the mitigating circumstance(s). This, however, is not the end of the inquiry.
In Harrison v. State, we held that a trial court's sentencing order imposing a capital sentence must, at a minimum, address the following four issues: (1) "identify each mitigating and aggravating circumstance found"; (2) "include the specific facts and reasons which lead the court to find the existence of each such circumstance"; (3) "articulate that the mitigating and aggravating circumstances have been evaluated and balanced in determination of the sentence"; and (4) "the trial court's personal conclusion that the sentence is appropriate punishment for this offender and this crime." 644 N.E.2d 1243, 1262 (Ind.1995). In 2002, the applicable statute regarding sentences of death or life without parole was revised, such that the trial court no longer made the final sentencing determination in all cases. See Pittman v. State, 885 N.E.2d 1246, 1252-53 (Ind.2008). We therefore held in Pittman that "under the current statute sentencing orders imposing the death penalty or life imprisonment without parole must comply with Harrison's requirements only when the trial court sentences without a jury's findings and recommendation." Id. at 1253. This is what occurred here, and neither the trial court's statements at the sentencing hearing, nor its ultimate sentencing order, contain the last Harrison/Pittman factor: a personal conclusion by the judge that life without possibility of parole is the appropriate sentence for Lewis.
For the foregoing reasons, we affirm Lewis's convictions, reverse the sentence of life without possibility of parole, and remand to the trial court for a revised sentencing order.
RUSH, C.J., and DICKSON, RUCKER, and DAVID, JJ., concur.
