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Filed: 04/26/2017

IN THE INDIANA COURT OF APPEALS

Case Number 07A01-1610-CR-02425

DANIEL E. MESSEL Appeal from the Circuit Court


of Brown County
Appellant (Defendant Below)

V. Case Number 07C01-1504-MR-000113

STATE OF INDIANA
The Honorable
Appellee (Plaintiff Below) Judith A. Stewart, Judge

BELATED BRIEF OF APPELLANT

Kurt A. Young
Attorney at Law
PO. Box 1549
Nashville, Indiana 47448-1549
(812) 988-8890
Attorney for Defendant-Appellant
Appellants Brief Messel v. State

TABLE OF CONTENTS

STATEMENT OF THE ISSUES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE FACTS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

SUMMARY OF THE ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

ARGUMENT I . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

ARGUMENT II. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

CERTIFICATE OF FILING AND SERVICE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

TABLE OF AUTHORITIES
CASES

Anglemyer v. State, 875 N.E.2d 218 (Ind. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31


Christen v. State, 1950, 228 Ind. 30, 89 N.E.2d 445 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Durbin v. State, Ind.Sup.1957, 140 N.E.2d 510 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Griffin v. State, 963 N.E.2d 685 (Ind. Ct. App. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Hubbell v. State, 754 N.E.2d 884 (Ind. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Johnson v. State, 141 N.E.2d 444 (Ind. 1957) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Lycan v. State, 671 N.E.2d 447 (Ind.Ct.App.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Mack v. State, 23 N.E.3d 742 (Ind. Ct. App. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
McFall v. State, 2017 WL 696065. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Speybroeck v. State, 875 N.E.2d 813 (Ind.Ct.App.2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Todd v. State, 1951, 230 Ind. 85, 101 N.E.2d 922. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

STATUTES
Ind. Code 35-50-2-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Ind. Code 35-38-1-7.1(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Ind. Code 35-50-2-8(i)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

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Appellants Brief Messel v. State

STATEMENT OF THE ISSUES

I.

Whether the trial Court erred in permitting the State to offer evidence that Messel at some

point owned a Mag light when no murder weapon was found and no testimony supported a

conclusion that Wilson was bludgeoned by a Mag light.

II.

Whether the sentence in this case is inappropriate in light of the nature of the offense and

the character of the offender because it failed to take into consideration mitigating factors clearly

before the trial Court.

STATEMENT OF THE CASE

This is a direct appeal of a criminal case in which Defendant-Appellant Daniel Messel

was found guilty of one count of murder, a felony. He was sentenced to 60 years, enhanced by 20

years upon the finding he was a habitual offender, for a total of 80 years incarceration.

On April 27, 2015, an information with supporting probable cause affidavit was filed

charging Messel with murder [App. v. 2 pp. 7-8, 35-39]. At an initial hearing the next day, a plea

of not guilty was entered and counsel appointed to represent him [App. v. 2 pp. 8, 40-41; Tr. v. 2

pp. 2-11]. On April 29, 2015, different counsel was substituted for him [App. v. 2 pp. 8, 42]. On

May 5, 2015, Messel requested funds to hire an investigator [App. v. 2 pp. 8, 44-45]. The request

was granted after a hearing on May 20, 2015, with a cap on expenditures [App. v. 2 pp. 9, 56-57;

Tr. v. 2 pp. 12-20].

On May 22, 2015, Messel filed a motion for change of venue from the county [App. v. 2

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Appellants Brief Messel v. State

pp. 10, 58-59]. The State filed its response on May 29, 2015 [App. v. 2 pp. 10, 61-62], and a

supporting memorandum on June 12, 2015 [App. v. 2 pp. 10, 63-74]. After a hearing on June 17,

2015, the Court took the motion under advisement [App. v. 2 p. 10; Tr. v 2 pp. 21-44]. On June

26, 2015, the Court issued an order taking the request under advisement pending voir dire [App.

v. 2 pp. 11, 82-83].

On September 11, 2015, Messel filed a motion to proceed ex parte in requesting funds for

experts [App. v. 2 pp. 13, 114-116]. The State filed a memorandum in opposition to the motion

on September 30, 2015 [App. v. 2 pp. 13, 121-125]. After a hearing on November 5, 2015, the

Court granted the motion with limitations [App. v. 2 p. 14; Tr. v. 2 pp. 53-65]. Ex parte motions

were then submitted and a hearing held that day [App. v. 2 pp. 14, 146-181; Tr. v. 2 pp. 66-75].

The motions were granted in part [App. v. 2 pp. 15, 182]. Messel filed a supplemental motion on

September 6, 2015 [App. v. 2 pp. 15, 184-187].

On December 3, 2015, the State filed a motion to amend the information to add a habitual

offender count [Tr. v. 1 pp. 15, 192-193]. After a hearing on December 16, 2015, the motion to

amend was granted [App. v. 2 p. 16; Tr. v. 2 pp. 76-80] and an initial hearing was held on the

added count [App. v. 2 pp. 16, 200, 202; Tr. 80-83].

Also on December 3, the State filed a notice of intent to use Rule 404(b) evidence [App.

v. 2 pp. 15, 190-191]. On February 5, 2016, Messel filed a motion in limine regarding other

misconduct evidence [App. v. 2 pp. 18, 210-218]. On February 22, 2016, the State filed a brief in

support of the admissibility of 404(b) evidence [App. v. 2 pp. 19, 227-237], and Messel filed his

response on March 14, 2016 [App. v. 2 pp. 19, 238-250; App. v. 3 pp. 2-36]. On April 14, 2016,

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Appellants Brief Messel v. State

the Court issued an order preliminarily granting Messels objection to the States use of 404(b)

evidence [App. v. 2 p. 20; App. v. 3 pp. 47-49].

On February 12, 2016, Messel filed a motion for funds for deposition expenses [App. v. 2

pp. 18, 219-221]. On February 18, 2016, the Court granted the request for deposition funds [App.

v. 2 pp. 19, 225-226].

On April 29, 2016, Messel filed a supplement to his motion for change of venue from the

county [App. v. 2 p. 20; App. v. 3 pp. 55-65]. That motion was heard on May 4, 2016 [Tr. v. 2

pp. 134-145]. On May 13, 2016, the Court set a date for a test jury and for trial [App. v. 2 p. 22;

App. v. 3 p. 73]. The test jury was conducted on June 1, 2016 [App. v. 2 pp. 205-250; Tr. v. 3 pp.

2-122]. After argument, the Court left Messels motion for change of venue under advisement

pending voir dire [App. v. 2 pp. 23, 76; Tr. v. 3 pp. 118-119]. However, it allowed submission of

written argument [App. v. 2 pp. 23, 76; Tr. v. 3 p. 118].

On June 24, 2016, Messel requested permission to view Messels car [App. v. 2 p. 23;

App. v. 3 pp. 79-81]. The request was granted on July 7, 2016 [App. v. 2 p. 24; App. v. 3 pp.

101-103].

On July 5, 2016, Messel moved with supporting memorandum to exclude video

surveillance footage and related opinion testimony [App. v. 2 p. 24; App. v. 3 pp. 83-92]. The

motion was heard on July 27, 2016 [App. v. 2 p. 27; Tr. v. 3 pp. 193-226], and it was denied on

July 28, 2016 [App. v. 2 p. 27].

On July 6, 2016, the State filed a motion for jury view of Messels car [App. v. 2 pp. 24,

93-95]. On July 7, 2016, the State filed its first motion in limine [App. v. 2 p. 24; App. v. 3 pp.

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Appellants Brief Messel v. State

96-100]. On July 12, 2016, the State filed a request for a mini-opening statement [App. v. 2 p.

25; App. v. 3 p. 104]. On July 14, 2016, the Court issued an order granted the request for a mini-

opening, granted preliminarily the Statess request for a jury view of the car, granted the States

motion in limine regarding a possible sentence and plea negotiations, granted the States motion

in limine regarding sexual activities by the decedent on evenings other than the evening of her

death, and denied the States motion in limine regarding unidentified DNA found during the

investigation [App. v. 2 p. 25; App. v. 3 pp. 108-110].

On July 13, 2016, the State filed its final witness list [App. v. 2 p. 25; App. v. 3 pp. 105-

107].

On July 21, 2016, Messel filed his first motion in limine [App. v. 2 p. 26; App. v. 3 pp.

114-122]. The matter was heard on July 27, 2016 [Tr. v. 3 pp. 226-242]. On July 27, 2016, the

State filed its second motion in limine [App. v. 2 p. 27; App. v. 3 pp. 133-134], as did Messel

[App. v. 2 p. 27; App. v. 3 pp. 137-143]. That motion was also heard on July 27, 2016 [App. v. 3

pp. 243-248].

On July 28, 2016, the Court issued an order on all pending motions. The order granted

Messels first motion in limine requests that scratches on his forearms not be referred to as claw

marks or defensive scratches without sufficient foundation, that his post-Miranda silence and

demeanor not be referred to, and that maps may not be referred to unless accuracy and relevance

are established. It preliminarily granted Messels second motion in limine requests to not refer to

his internet searches or websites visited, that there be no testimony he had a bad temper, that he

had an interest in younger or college-age women, and that he had a profile on a dating service. It

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Appellants Brief Messel v. State

the Court issued an order preliminarily granting Messels objection to the States use of 404(b)

evidence [App. v. 2 p. 20; App. v. 3 pp. 47-49].

On February 12, 2016, Messel filed a motion for funds for deposition expenses [App. v. 2

pp. 18, 219-221]. On February 18, 2016, the Court granted the request for deposition funds [App.

v. 2 pp. 19, 225-226].

On April 29, 2016, Messel filed a supplement to his motion for change of venue from the

county [App. v. 2 p. 20; App. v. 3 pp. 55-65]. That motion was heard on May 4, 2016 [Tr. v. 2

pp. 134-145]. On May 13, 2016, the Court set a date for a test jury and for trial [App. v. 2 p. 22;

App. v. 3 p. 73]. The test jury was conducted on June 1, 2016 [App. v. 2 pp. 205-250; Tr. v. 3 pp.

2-122]. After argument, the Court left Messels motion for change of venue under advisement

pending voir dire [App. v. 2 pp. 23, 76; Tr. v. 3 pp. 118-119]. However, it allowed submission of

written argument [App. v. 2 pp. 23, 76; Tr. v. 3 p. 118].

On June 24, 2016, Messel requested permission to view Messels car [App. v. 2 p. 23;

App. v. 3 pp. 79-81]. The request was granted on July 7, 2016 [App. v. 2 p. 24; App. v. 3 pp.

101-103].

On July 5, 2016, Messel moved with supporting memorandum to exclude video

surveillance footage and related opinion testimony [App. v. 2 p. 24; App. v. 3 pp. 83-92]. The

motion was heard on July 27, 2016 [App. v. 2 p. 27; Tr. v. 3 pp. 193-226], and it was denied on

July 28, 2016 [App. v. 2 p. 27].

On July 6, 2016, the State filed a motion for jury view of Messels car [App. v. 2 pp. 24,

93-95]. On July 7, 2016, the State filed its first motion in limine [App. v. 2 p. 24; App. v. 3 pp.

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Appellants Brief Messel v. State

App. v. 3 pp. 217-240]. A sentencing hearing was conducted on September 22, 2016 [App. v. 2

p. 33; Tr. v. 13 pp. 104-137], and Messel was sentenced to 60 years on the murder count,

enhanced by 20 years on the habitual offender count, for a total of 80 years incarceration [App. v.

2 p. 33; Tr. v. 13 p. 133]. The sentencing order is at App. v. 3 pp. 243-244, and the abstract of

judgment is at App. v. 3 pp. 245-246.

Pauper appellate counsel was appointed for Messel [App. v. 2 p. 33; App. v. 3 p. 144; Tr.

v. 13 p. 135]. A notice of appeal was filed on October 21, 2016 [App. v. 2 pp. 2-6]. Notice of

completion of the clerks record was filed on November 14, 2016, and notice of completion of

the transcript was filed on January 17, 2017. On February 10, 2017, March 10, 2017, and March

24, 2017, this Court granted extensions of time within which to file the appellants brief. It is

currently due on or before April 13, 2017. The brief was not timely filed on that date, and it

submitted with a verified motion for leave to file a belated brief with attachments.

STATEMENT OF THE FACTS

At about 8:30 a.m. [Tr. v. 7 p. 231] on April 24, 2015 [Tr. v. 7 p. 228], Carol Bridges [Tr.

v. 7 p. 228] left her Brown County home to go to Bloomington [Tr. v. 1 p. 228]. As she drove

toward State Road 45 [Tr. v. 7 p. 228] she saw what looked like a pile of clothes beside the road

[Tr. v. 7 p. 229]. She turned around to look at it [Tr. v. 7 p. 229], got out of her car [Tr. v. 7 p.

237] and saw a body on the ground [Tr. v. 7 p. 229; State Ex. 5]. It was about ten feet from the

road [Tr. v. 7 p. 237; Tr. v. 9 p. 208]. The body was clothed [Tr. v. 7 p. 237]. She noticed a cell

phone at its feet [Tr. v. 7 p. 231]. Bridges drove back home and called police [Tr. v. 1 p. 231,

233-234; State Ex. 6]. The body was that of Hannah Wilson [Tr. v. 7 p. 223; Tr. v. 8 p. 13; Tr. v.

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Appellants Brief Messel v. State

App. v. 3 pp. 217-240]. A sentencing hearing was conducted on September 22, 2016 [App. v. 2

p. 33; Tr. v. 13 pp. 104-137], and Messel was sentenced to 60 years on the murder count,

enhanced by 20 years on the habitual offender count, for a total of 80 years incarceration [App. v.

2 p. 33; Tr. v. 13 p. 133]. The sentencing order is at App. v. 3 pp. 243-244, and the abstract of

judgment is at App. v. 3 pp. 245-246.

Pauper appellate counsel was appointed for Messel [App. v. 2 p. 33; App. v. 3 p. 144; Tr.

v. 13 p. 135]. A notice of appeal was filed on October 21, 2016 [App. v. 2 pp. 2-6]. Notice of

completion of the clerks record was filed on November 14, 2016, and notice of completion of

the transcript was filed on January 17, 2017. On February 10, 2017, March 10, 2017, and March

24, 2017, this Court granted extensions of time within which to file the appellants brief. It is

currently due on or before April 13, 2017. The brief was not timely filed on that date, and it

submitted with a verified motion for leave to file a belated brief with attachments.

STATEMENT OF THE FACTS

At about 8:30 a.m. [Tr. v. 7 p. 231] on April 24, 2015 [Tr. v. 7 p. 228], Carol Bridges [Tr.

v. 7 p. 228] left her Brown County home to go to Bloomington [Tr. v. 1 p. 228]. As she drove

toward State Road 45 [Tr. v. 7 p. 228] she saw what looked like a pile of clothes beside the road

[Tr. v. 7 p. 229]. She turned around to look at it [Tr. v. 7 p. 229], got out of her car [Tr. v. 7 p.

237] and saw a body on the ground [Tr. v. 7 p. 229; State Ex. 5]. It was about ten feet from the

road [Tr. v. 7 p. 237; Tr. v. 9 p. 208]. The body was clothed [Tr. v. 7 p. 237]. She noticed a cell

phone at its feet [Tr. v. 7 p. 231]. Bridges drove back home and called police [Tr. v. 1 p. 231,

233-234; State Ex. 6]. The body was that of Hannah Wilson [Tr. v. 7 p. 223; Tr. v. 8 p. 13; Tr. v.

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Appellants Brief Messel v. State

the cell phone [Tr. v. 8 p. 32, 240-241]. ISP Sergeant Christopher Fears [Tr. v. 8 p. 34] was also

at the scene [Tr. v. 8 p. 34]. Robbins dialed Fears number to identify the phones number [Tr. v.

8 p. 28, 3335; Tr. v. 9 p. 175]. Robbins hoped to be able to identify the body via the cell phone

[Tr. v. 8 p. 29]. Robbins and Fears looked at the first few recent contacts in the phone and

forwarded that information to ISP Det. Stacey Brown in Bloomington [Tr. v. 8 p. 29, 35-38].

Brown was asked to check numbers that were in the contacts shown in the cell phone [Tr. v. 8 p.

36].

Brown called two of the contacts, but they did not answer [Tr. v. 8 p. 39]. He then gave

the number to Bloomington Police Department dispatch [Tr. v. 8 p. 39]. BPD dispatch told him

the number was in their computer system as a result of a call regarding an accident in May, 2014

[Tr. v. 8 p. 39; State Ex. 8]. The number was the same as the one shown belonging to the cell

phone [Tr. v. 8 p. 47]. It was shown as listed to Dan Messel, and they were able to give Brown a

date of birth [Tr. v. 8 p. 39]. Brown then talked to one of the contacts he had called earlier (Sara

Jansen), and that contact told him the number shown in her phone was for a Dan, but she did not

know the last name [Tr. v. 8 p. 40]. It was someone she played trivia with [Tr. v. 8 p. 40]. She

said the person was more a friend of a Professor Jennifer Lentz, and she gave Brown Lentz

phone number [Tr. v. 8 p. 40]. Brown left a message for Lentz [Tr. v. 8 p. 40]. Then he spoke to

the other contact he had called earlier (Alaire Schmitz) [Tr. v. 8 p. 40]. Brown then had ISP

dispatch run Messels driving record [Tr. v. 8 p. 41], which he obtained with a photograph and a

description of his vehicle [Tr. v. 8 p. 41, 45-47; State Ex. 9-10].

Brown County Coroner Earl Piper [Tr. v. 7 p. 250] was also called to the scene [Tr. v. 8

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Appellants Brief Messel v. State

p. 2]. He saw the body lying face down next to a driveway [Tr. v. 8 p. 3; State Ex. 3, 5]. He

described it as female, wearing a gray top, tight black pants and tennis shoes [Tr. v. 8 p. 3]. She

was completely clothed [Tr. v. 8 p. 17]. He saw evidence flags near the body [Tr. v. 8 p. 6, 20],

which had been placed by Lewis to mark the outer perimeter of blood spatter [Tr. v. 10 p. 48-49,

51; State Ex. 50-54]. He saw blood at the scene [Tr. v. 8 p. 20]. He stayed away from the scene

because an ISP technician [Tr. v. 8 p. 3] and an assistant from the Sheriffs Department were

working the scene [Tr. v. 8 p. 4]. They were wearing gloves [Tr. v. 8 p. 4].

Piper saw what appeared to be blunt force injuries to the left back portion of the bodys

skull and neck [Tr. v. 8 p. 7]. Head wounds cause a great deal of blood loss [Tr. v. 8 p. 21]. Piper

ordered an autopsy [Tr. v. 8 p. 5] to be performed by someone he believed was a forensic

pathologist, Dr. George Weir [Tr. v. 8 p. 6, 18; Tr. v. 9 p. 231]. He had learned since that Weir

was not a forensic pathologist [Tr. v. 8 p. 19], although he was a pathologist [Tr. v. 9 p. 231].

The autopsy of Wilsons body was performed on April 25, 2015 [Tr. v. 9 p. 236; State

Ex. 28-31, 33-35, 39-42, 44-47]. Piper attended the autopsy [Tr. v. 8 p. 7; Tr. v. 9 p. 236], as did

ISP crime scene technician Chris Lewis and Brown County Sheriffs Deputies Woods and

Pittman [Tr. v. 8 p. 12; Tr. v. 9 p. 236; Tr. v. 10 p. 100]. Robbins and Fears were also there [Tr.

v. 8 p. 13; Tr. v. 9 p. 236; Tr. v. 10 p. 100]. Dr. Weir believed that superficial abrasions and

bruises on the body indicated that there had been some sort of altercation before her death [Tr. v.

10 p. 2, 21].

During the autopsy, Piper saw three or four blunt strikes to the back left side of the head

[Tr. v. 8 p. 14]. Weir said their were at least four [Tr. v. 10 p. 6, 17], and they appeared to be

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Appellants Brief Messel v. State

from something rounded, like a baseball bat, a pipe, a big tree limb or a club [Tr. v. 10 p. 6, 8,

16]. They were caused by a weapon and could not have been done by someones hands [Tr. v. 10

p. 16]. Because the blows were to the head and repeated, the impacts would cast off blood in

different directions [Tr. v. 10 p. 9]. The skull had been fractured [Tr. v. 10 p. 10-11, 16] and

there was bleeding and damage to the brain [Tr. v. 10 p. 11]. Weir believed the blows were

struck while her body was in the position in which it was found [Tr. v. 10 p. 19]. Piper and Weir

determined the cause of death to be blunt force trauma to the head [Tr. v. 1 p. 16; Tr. v. 10 p. 13].

It was determined to be a homicide [Tr. v. 10 p. 13].

Toxicology results showed an alcohol quotient of .225 [Tr. v. 10 p. 12, 30]. Swabs were

taken for DNA analysis [Tr. v. 10 p. 12, 108; State Ex. 78]. A card with a sample of Wilsons

blood was taken [Tr. v. 10 p. 109; State Ex. 85]. Samples were also taken from the fingernails

and underneath the fingernails [Tr. v. 10 p. 24, 107; State Ex. 76-77]. A small hair was found on

the bodys knee [Tr. v. 10 p. 26; Defendants Ex. 1] and other hairs were found on the back of

the left hand, some intertwined with the fingers [Tr. v. 10 p. 28-29, 227-230; Defendants Ex. 2].

There was no sign of a sexual assault [Tr. v. 10 p. 32].

A murder weapon was not found [Tr. v. 9 p. 181].

The State called several friends of Wilson. All who were asked testified that they had

never seen Wilson with Messel [Tr. v. 8 p. 67, 78, 108, 128, 153, 199, 249], as did Messels

witness [Tr. v. 12 p. 219]. Her roommates at her house at 513 East 8th Street in Bloomington [Tr.

v. 8 p. 57-58; State Ex. 11] testified that the house was locked with a deadbolt in the rear and a

keypad and deadbolt in front [Tr. v. 8 p. 60; State Ex. 12-13]. Each of the bedrooms had its own

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Appellants Brief Messel v. State

[Tr. v. 9 p. 21, 24-25] taken at Kilroys Sports Bar the early morning in question [Tr. v. 9 p. 23;

State Ex. 18]. She wanted to stay with the people at Kilroys [Tr. v. 9 p. 17, 29]. A bearded man

gave him $20.00 and told him to take her down 8th Street [Tr. v. 9 p. 17, 29]. He did not give

him a specific address [Tr. v. 9 p. 17]. Yeatman remembered someone telling her to text them

when she got home [Tr. v. 9 p. 32]. Wilson was drunk [Tr. v. 9 p. 27-28] but could walk.

Yeatman described her as coherent, although she could not provide her address [Tr. v. 9 p. 28].

He dropped her off at 8th and Dunn [Tr. v. 9 p. 18-20, 31]. He did not see her go inside a house

[Tr. v. 9 p. 20]. The transaction would not be on the E2 Taxi dispatch reports because Yeatman

was waved down instead of dispatched [Tr. v. 9 p. 26; State Ex. 19]. The cabs surveillance tape

for that time had been recorded over [Tr. v. 9 p. 21, 36]. Wilsons drivers license was found

between 12:45 a.m. and 1:00 a.m. on April 24, 2015, outside Kilroys Sports Bar [Tr. v. 9 p. 37-

38, 100; State Ex. 22].

Aulaire Schmitz [Tr. v. 9 p. 39], Jennifer Lentz [Tr. v. 9 p. 50] and Matthew Brighton

were members of a trivia group [Tr. v. 9 p. 39, 52, 81] that met on a weekly basis in bars around

Bloomington to play pub trivia [Tr. v. 9 p. 40, 52, 78]. Messel was on the team with them [Tr. v.

9 p. 40, 52]. Messel had a cell phone, and at about 5:20 p.m. or 5:30 p.m. on April 23, 2015, he

texted the group members to play trivia [Tr. v. 9 p. 41]. They went to Yogis Sports Bar and Grill

[Tr. v. 9 p. 41, 53]. Messel was wearing a red shirt as shown in pictures taken on April 23, 2015

[Tr. v. 9 p. 44, 55; State Ex. 20-21]. Brighton recalled Messel saying he had left his cell phone in

the car [Tr. v. 9 p. 93].

Brighton rode with Messel in his Kia [Tr. v. 9 p. 78]. When he picked him up, Messel

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Appellants Brief Messel v. State

[Tr. v. 9 p. 21, 24-25] taken at Kilroys Sports Bar the early morning in question [Tr. v. 9 p. 23;

State Ex. 18]. She wanted to stay with the people at Kilroys [Tr. v. 9 p. 17, 29]. A bearded man

gave him $20.00 and told him to take her down 8th Street [Tr. v. 9 p. 17, 29]. He did not give

him a specific address [Tr. v. 9 p. 17]. Yeatman remembered someone telling her to text them

when she got home [Tr. v. 9 p. 32]. Wilson was drunk [Tr. v. 9 p. 27-28] but could walk.

Yeatman described her as coherent, although she could not provide her address [Tr. v. 9 p. 28].

He dropped her off at 8th and Dunn [Tr. v. 9 p. 18-20, 31]. He did not see her go inside a house

[Tr. v. 9 p. 20]. The transaction would not be on the E2 Taxi dispatch reports because Yeatman

was waved down instead of dispatched [Tr. v. 9 p. 26; State Ex. 19]. The cabs surveillance tape

for that time had been recorded over [Tr. v. 9 p. 21, 36]. Wilsons drivers license was found

between 12:45 a.m. and 1:00 a.m. on April 24, 2015, outside Kilroys Sports Bar [Tr. v. 9 p. 37-

38, 100; State Ex. 22].

Aulaire Schmitz [Tr. v. 9 p. 39], Jennifer Lentz [Tr. v. 9 p. 50] and Matthew Brighton

were members of a trivia group [Tr. v. 9 p. 39, 52, 81] that met on a weekly basis in bars around

Bloomington to play pub trivia [Tr. v. 9 p. 40, 52, 78]. Messel was on the team with them [Tr. v.

9 p. 40, 52]. Messel had a cell phone, and at about 5:20 p.m. or 5:30 p.m. on April 23, 2015, he

texted the group members to play trivia [Tr. v. 9 p. 41]. They went to Yogis Sports Bar and Grill

[Tr. v. 9 p. 41, 53]. Messel was wearing a red shirt as shown in pictures taken on April 23, 2015

[Tr. v. 9 p. 44, 55; State Ex. 20-21]. Brighton recalled Messel saying he had left his cell phone in

the car [Tr. v. 9 p. 93].

Brighton rode with Messel in his Kia [Tr. v. 9 p. 78]. When he picked him up, Messel

14
Appellants Brief Messel v. State

Ex. 69, 135].

After an hour to an hour and a half, the officers left. A short time later, Klun and Lewis

were sent back to the Messel residence [Tr. v. 9 p. 123-124; Tr. v. 10 p. 85215]. When Klun and

another trooper arrived, Klun saw a Kia SUV parked in a carport, and he saw Messel walking out

of the house with a bag in his hand. Klun drew his gun and took Messel into custody [Tr. v. 9 p.

125]. When Klun told him to show his hands, Messel tossed the bag to his right side [Tr. v. 9 p.

126; State Ex. 26]. He showed no emotion [Tr. v. 9 p. 130]. Klun handcuffed him and stood him

by his police car and read him his Miranda rights [Tr. v. 9 p. 130]. He confirmed his identity by

referring to a BMV photo [Tr. v. 9 p. 130] and his drivers license, which he retrieved from

Messels wallet [Tr. v. 9 p. 131]. Klun did not touch the bag [Tr. v. 9 p. 132]. Lewis collected it

[Tr. v. 10 p. 86, 110-111, 216; State Ex. 70, 86, 91]. Lewis also looked at the Kia and saw blood

spatter on the car and hair inside it [Tr. v. 10 p. 86, 235; State Ex. 23]. The car was towed to

secure storage [Tr. v. 10 p. 87, 159; State Ex. 143]. Among the items in the bag were a pair of

boxer briefs and a Cincinnati Reds T shirt [Tr. v. 10 p. 117-118, 232; State Ex. 90, 95-96]. The T

shirt appeared to have a bloodstain on it [Tr. v. 10 p. 119, 233], and testing showed the substance

was in fact blood [Tr. v. 10 p. 233]; the blood was Messels [Tr. v. 10 p. 235]. Also in the bag

was a pair of jeans [Tr. v. 10 p. 119; State Ex. 97; Defendants Ex. 5] that also appeared to have

bloodstains on them [Tr. v. 10 p. 120]. In the jeans was a wallet and its contents [Tr. v. 10 p.

122-123, 250; State Ex. 99-100].

Lewis then went to Wilsons apartment and photographed it. Nothing looked out of place

and there was no sign of forced entry [Tr. v. 10 p. 89-92, 220]. Found in her bedroom between

17
Appellants Brief Messel v. State

Her shift had started at 7:00 p.m. [Tr. v. 9 p. 68]. It normally ended around 11:00 p.m. [Tr. v. 9 p.

68]. She said the table occupied by Messel and his group left at 11:45 p.m. or 11:50 p.m. [Tr. v. 9

p. 68]. At most, Messel drank three beers that night [Tr. v. 9 p. 69].

The next day Schmitz and Lentz each got a call from the State Police asking if they knew

to whom the cell phone they were calling from belonged [Tr. v. 9 p. 46, 56]. Both told them the

number was Messels [Tr. v. 9 p. 47, 56]. After receiving the call, Lentz became concerned and

called Messels work. She then located his address and went to his house [Tr. v. 9 p. 57]. There

she met Messels father. Messel was not there, and his father appeared to be concerned [Tr. v. 9

p. 58]. She told him that Messel had been drinking [Tr. v. 9 p. 59]. There were at least three

police cars there and a number of officers [Tr. v. 9 p. 61].

When Jerri Goodwin, Messels sister [Tr. v. 9 p. ], dropped her son off at her fathers

house the morning of April 24, 2015 [Tr. v. 9 p. 109], Messels car was not there and he was not

there [Tr. v. 9 p. 111]. Messel lived with his father [Tr. v. 9 p. 109-110]. His father was

concerned [Tr. v. 9 p. 111, 113]. At the request of Lewis [Tr. v. 9 p. 116; Tr. v. 10 p. 85], a

neighbor called them when Messel appeared at the house about ten minutes after the officers left

[Tr. v. 9 p. 116]. Messel went inside, and when he came back out he was carrying a bag. Police

then arrived [Tr. v. 9 p. 117].

ISP Trooper Richard Klun [Tr. v. 9 p. 119] and Lewis responded to the Messel home [Tr.

v. 9 p. 122; Tr. v. 10 p. 83, 214]. The first time, Messels father was there but Messel was not

[Tr. v. 9 p. 122; Tr. v. 10 p. 83, 85]. The officers executed a search warrant [Tr. v. 9 p. 123; Tr. v.

10 p. 83; Ex. 68]. Lewis collected a notebook and a desktop computer [Tr. v. 10 p. 84, 160; State

16
Appellants Brief Messel v. State

indicated possible semen but was an insufficient quantity for analysis [Tr. v. 12 p. 74-75; State

Ex. 84]. Eight of the hairs from the center console of the Kia had a DNA profile consistent with

Wilson [Tr. v. 12 p. 75-78; State Ex. 108]. Eleven of the hairs from the back floorboard of the

Kia had a DNA profile consistent with Wilson, and one of the hairs was from an unknown

female [Tr. v. 12 p. 78-80; State Ex. 109]. The swab from the Kia dashboard did not have enough

DNA to analyze [Tr. v. 12 p. 80-81; State Ex. 118]. The swab from the steering wheel [Tr. v. 12

p. 81-82; State Ex. 116] showed the presence of blood, and the DNA profile was consistent with

Messel and Wilson [Tr. v. 12 p. 82]. The red stain from the drivers door [Tr. v. 12 p. 83; State

Ex. 113] showed the presence of blood and the DNA profile was consistent with Wilson [Tr. v.

12 p. 83-84]. The red IU pullover [Tr. v. 12 p. 84, 182, 186, 188d; State Ex. 104, 105; Defendant

Ex. 14-16] also showed the presence of blood, and the DNA profile was consistent with Messel

and Wilson in different locations on the shirt [Tr. v. 12 p. 86-88]. The swab from the front

passenger seat of the Kia did not have a sufficient amount of DNA for analysis [Tr. v. 12 p. 95;

State Ex. 119]. The swab from the front passenger door handle [Tr. v. 12 p. 95; State Ex. 117]

did not show blood and had insufficient DNA for analysis [Tr. v. 12 p. 96]. The swab from the

dash [Tr. v. 12 p. 97; State Ex. 115] showed possible blood and the DNA profile was consistent

with Messel [Tr. v. 12 p. 97]. The swab from the center console of the Kia [Tr. v. 12 p. 98; State

Ex. 114] showed possible blood and the DNA profile was consistent with Messel [Tr. v. 12 p.

99]. The swab from the windshield [Tr. v. 12 p. 99; State Ex. 112] showed possible blood and

was consistent with Wilson [Tr. v. 12 p. 101]. The swab from the hood of the Kia [Tr. v. 12 p.

101; State Ex. 123] showed possible blood and the DNA was consistent with Wilson [Tr. v. 12 p.

20
Appellants Brief Messel v. State

the mattress and box springs were an open package of cigarettes and a lighter [Tr. v. 10 p. 221-

222; Defendants Ex. 4].

Lewis then went to the Bloomington State Police post and obtained prints and a DNA

swab from Messel [Tr. v. 10 p. 92; State Ex. 72]. He also took photographs of Messel [Tr. v. 10

p. 93; State Ex. 79]. Messel had marks on the back of his right hand and abrasions on his arms

and legs, and he had some discoloration underneath his nose [Tr. v. 10 p. 96-99, 223-226; State

Ex. 73, 80-82]. While there, Lewis took a pair of pair of Sketchers shoes [Tr. v. 10 p. 112-113,

231; State Ex. 86-88, 92-94] that Messel was wearing [Tr. v. 10 p. 161]. The left shoe had a

possible bloodstain on it [Tr. v. 10 p. 114, 116].

Lewis also processed the Kia SUV [Tr. v. 10 p. 126-127; State Ex. 102]. In it he found an

IU pullover that appeared to have bloodstains on it [Tr. v. 10 p. 128-129; State Ex. 104-105]. He

also found two clusters of hair, one on the center console and another on the rear passenger side

floorboard [Tr. v. 10 p. 131-133; State Ex. 108-109]. He found suspected blood on the interior of

the drivers door, the center console, the dash, the steering wheel, the front passenger door

handle, the front passenger seat, the rear passenger seat, the front hood, the front fender, the

exterior drivers door, a small amount on the passenger door, and the exterior of the windshield

of the Kia and took swabs of them [Tr. v. 10 p. 133-137, 139-148, 236-239; State Ex. 112-117,

119-121, 123-129, 133]. There was what appeared to be blood spatter on the roof lining [Tr. v.

10 p. 145]. Lewis also took swabs from handprints and finger marks in the dust on the passenger

side dashboard [Tr. v. 10 p. 137-139; State Ex. 118, 122]. He also dusted the Kia for fingerprints

and found five lifts [Tr. v. 10 p. 148-150; State Ex. 130]. No conclusive results were obtained

18
Appellants Brief Messel v. State

a.m. and 3:00 a.m. the phone moved, eventually ending up in Brown County [Tr. v. 11 p. 139].

Shirley Pritchard [Tr. v. 9 p. 146] owned an auto wrecker service on State Road 45 in

New Unionville [Tr. v. 9 p. 146, 152; State Ex. 27]. The business had working surveillance

cameras outside that had a view of the highway [Tr. v. 9 p. 147-149]. ISP Detective Thomas

Egler [Tr. v. 9 p. 148] came to the business and retrieved a copy of some of the surveillance

video for the dates and times he requested [Tr. v. 9 p. 150]. Jason McClaren [Tr. v. 9 p. 161] a

resident on State Road 45, also had surveillance cameras [Tr. v. 9 p. 162] that faced the highway

[Tr. v. 9 p. 163]. Det. Egler retrieved a copy of data from his system [Tr. v. 9 p. 164]. The dates

and times were not accurate within the system [Tr. v. 9 p. 164-165]. The correct date and time

were established by reference to a known event [Tr. v. 9 p. 165]. Michael Fierst [Tr. v. 9 p. 219],

the owner of the Showers Inn Bed and Breakfast [Tr. v. 9 p. 220] had a surveillance system on

his property that provided a view of East 8th Street in Bloomington [Tr. v. 9 p. 221]. An ISP

detective downloaded data from his system [Tr. v. 9 p. 222].

Egler secured surveillance videos as part of his investigation [Tr. v. 11 p. 151]. The video

from Kilroys Sports bar showed Wilson getting into the cab [Tr. v. 11 p. 163]. The video from

Showers Inn first showed the taxi, then it showed a vehicle with the same headlights, taillights

and other characteristics as Messels Kia [Tr. v. 11 p. 164, 246-247] was seen within a minute

later [Tr. v. 11 p. 166, 171; Tr. v. 12 p. 19; State Ex. 151-155] on 8th Street [Tr. v. 11 p. 170].

The vehicle matching the characteristics of Messels Kia went down 8th Street a total of six

times [Tr. v. 11 p. 173-177, 229] within a 57 minute period [Tr. v. 11 p. 220], the last time being

1:57 a.m. [Tr. v. 11 p. 173, 222]. Surveillance video from the McClarens showed one vehicle

23
Appellants Brief Messel v. State

indicated possible semen but was an insufficient quantity for analysis [Tr. v. 12 p. 74-75; State

Ex. 84]. Eight of the hairs from the center console of the Kia had a DNA profile consistent with

Wilson [Tr. v. 12 p. 75-78; State Ex. 108]. Eleven of the hairs from the back floorboard of the

Kia had a DNA profile consistent with Wilson, and one of the hairs was from an unknown

female [Tr. v. 12 p. 78-80; State Ex. 109]. The swab from the Kia dashboard did not have enough

DNA to analyze [Tr. v. 12 p. 80-81; State Ex. 118]. The swab from the steering wheel [Tr. v. 12

p. 81-82; State Ex. 116] showed the presence of blood, and the DNA profile was consistent with

Messel and Wilson [Tr. v. 12 p. 82]. The red stain from the drivers door [Tr. v. 12 p. 83; State

Ex. 113] showed the presence of blood and the DNA profile was consistent with Wilson [Tr. v.

12 p. 83-84]. The red IU pullover [Tr. v. 12 p. 84, 182, 186, 188d; State Ex. 104, 105; Defendant

Ex. 14-16] also showed the presence of blood, and the DNA profile was consistent with Messel

and Wilson in different locations on the shirt [Tr. v. 12 p. 86-88]. The swab from the front

passenger seat of the Kia did not have a sufficient amount of DNA for analysis [Tr. v. 12 p. 95;

State Ex. 119]. The swab from the front passenger door handle [Tr. v. 12 p. 95; State Ex. 117]

did not show blood and had insufficient DNA for analysis [Tr. v. 12 p. 96]. The swab from the

dash [Tr. v. 12 p. 97; State Ex. 115] showed possible blood and the DNA profile was consistent

with Messel [Tr. v. 12 p. 97]. The swab from the center console of the Kia [Tr. v. 12 p. 98; State

Ex. 114] showed possible blood and the DNA profile was consistent with Messel [Tr. v. 12 p.

99]. The swab from the windshield [Tr. v. 12 p. 99; State Ex. 112] showed possible blood and

was consistent with Wilson [Tr. v. 12 p. 101]. The swab from the hood of the Kia [Tr. v. 12 p.

101; State Ex. 123] showed possible blood and the DNA was consistent with Wilson [Tr. v. 12 p.

20
Appellants Brief Messel v. State

The State was permitted to introduce evidence that during the year before the incident in

this case [Tr. v. 9 p. 86] Messel had mentioned to his coworker something about a Mag light

flashlight [Tr. v. 9 p. 77]. The coworker did not remember the context but thought the mention

was something along the lines of self-defense [Tr. v. 9 p. 77, 91]. The coworker believed Messel

carried the light in his car [Tr. v. 9 p. 77]. However, he had never seen the flashlight [Tr. v. 9 p.

85], even though he was in Messels care two to three times a week [Tr. v. 9 p. 88].

Messel objected to the testimony, observing that since the murder weapon was unknown,

nobody could say a Mag light was used and that the blunt object could be a baseball bat, a pipe or

a large limb, as stated by the pathologist [App. v. 2 p. 224-229]. The only clear purpose in the

States introduction of the Mag light testimony was to invite the jury to speculate that Messel

actually had one, that it was of a size that could produce the damage suffered by Wilson, and that

Wilson was a dangerous armed man.

This case is similar to Hubbell v. State, 754 N.E.2d 884 (Ind. 2001), where in the absence

of any indication a gun was used, the State was permitted to introduce evidence of a handgun

found in the defendants home and bullets found in his vehicle was found to be an abuse of

discretion:

Hubbell contends that the admission of a handgun found in his home and bullets
found in his van violated Indiana Evidence Rule 403. The State argues that because the
gun matched bullets found in the van, the jury could have concluded that the gun was
used to coerce Myers into the van. Hubbell filed a pretrial motion in limine to exclude
this evidence arguing that there was no evidence that a gun was used to commit this
crime. The State argued that Myers left her work against her will, presuming that a gun
was used to coerce her. The trial court denied the motion.
We agree with Hubbell that the introduction of the gun and bullets was an abuse
of discretion. The State presented no evidence that Myers was coerced with a gun to leave
her place of employment and no evidence that the gun was in any way connected with her

26
Appellants Brief Messel v. State

opined that the pattern on the corner of the door was made from 11 to 24 inches away [Tr. v. 11

p. 53]. Marks did not know whether the substance he was evaluating was in fact blood [Tr. v. 11

p. 51], and the door would have had to have been wide open for the stain to reach the hinge area

[Tr. v. 11 p. 62].

ISP Trooper Patrick Deckard [Tr. v. 11 p. 75] was a digital forensics officer [Tr. v. 11 p.

76]. On April 24, 2015, he did a data extraction on Wilsons cell phone [Tr. v. 11 p. 78]. The

time line from the phone included half of April 23 and all of April 24 [Tr. v. 11 p. 81; State Ex.

143A]. It showed the last outgoing transaction from the phone was on April 24 at 2:57 p.m. - a

call to Colt Burnette [Tr. v. 11 p. 87]. It also showed a connection with Wilsons home wifi on

April 24 at 1:03:30 a.m. [Tr. v. 11 p. 103]. An extraction was performed on Messels phone [Tr.

v. 11 p. 88] covering April 22 at 1:59 p.m. to April 24 at 12:07 p.m. [Tr. v. 11 p. 89]. It showed a

text to a person named Matt at about 7:00, and a telephone call to another unknown number after

that [Tr. v. 11 p. 89; State Ex. 144]. The text to Matt said Im here [Tr. v. 11 p. 90].

Jeremy Clinton was with the U.S. Marshal Service as a member of its technical

operations group, doing cell phone mapping [Tr. v. 11 p. 129]. He was requested to get records

for Messels cell phone [Tr. v. 11 p. 133]. A court order was obtained, and Clinton served it on

Verizon on April 24, 2015 [Tr. v. 11 p. 133]. The Verizon records showed that at 11 p.m. in

April 23, 2015, Messels phone was in the area of a tower in Bloomington [Tr. v. 11 p. 136].

Between 11:30 p.m. and midnight, the phone was toward the western part of Bloomington [Tr. v.

11 p. 137]. At 1:00 a.m. the phone was back in the downtown Bloomington area [Tr. v. 11 p.

138], which encompassed with Wilsons 8th Street address [Tr. v. 11 p. 139, 142]. Between 2:00

22
Appellants Brief Messel v. State

And the 20 additional years upon the finding that he was a habitual offender was the maximum

he could have received under Ind. Code 35-50-2-8(i)(1). Messel was 51 years old at the time of

sentencing, and the sentence herein is effectively a life sentence.

In imposing the maximum possible sentence for murder enhanced by a finding that

Messel was a habitual offender, the Court stated the following:

COURT: ... Mr. Messel, I do find it to be an aggravatorthat you have the prior criminal
history you have. Setting- even setting aside the three felony batteries that were found to
support the habitual. It was the forgery that was not submitted to the jury. Even setting
those aside, there were the felony forgery, at least - well, three, I believe, misdemeanor
batteries plus other misdemeanor convictions including resisting and I do find that
criminal history to be an aggravator because it shows a pattern of criminal conduct and a
pattern of violence. I do recognize, as Ms. Maryan has argued, that there was a substantial
period of time without some in there and so even taking that into consideration as
somewhat reducing the aggravating factor, I still find the criminal history to be an
aggravator. Other than that period of time without criminal conduct, I really dont see any
of the statutory mitigating factors here. And for that reason, I do find that the aggravating
factor, the criminal history even- even aside from the habitual- the convictions as for the
habitual, warrants an aggravated sentence. On the murder, the Court will sentence you,
Mr. Messel, to sixty years at the Indiana Department of Corrections all executed, none
suspended. With respect to the habitual, that is where I think the - the violent battery
felony convictions are reflected and the Courts sentences you to an additional twenty
years on the habitual. You will receive credit pursuant to Indiana Statute for time served
prior to sentencing which the Probation Department calculated as 517 actual days as of
yesterday, which is- we start there because the Department of Corrections starts with
today. I checked that, thats what I came up with as well. So 517 actual days served
pretrial. Under the statute that- for this level of offense says that you earn one day of
credit for every three served. One additional day for every three served. That would
reflect a total of 172.33 days on that credit in addition to the actual 517. I do want to also
state as a reason for the sentence, I know that the Pre Sentence report reflected the risk
assessment that probation had prepared in terms of risk of re-offense and that showed that
the risk of re-offense was high and I think considering that, but also just in the Courts
judgment, even aside from that risk assessment tool, just in the Courts judgment, based
on the brutality of the offense, based on the history, I think there is a high risk of
re-offense and that is also taken into consideration in the Courts sentence. Court costs
will be assessed at $183.00. Restitution will be ordered to Jeff Wilson in the sum of
$19,316.69 and to Robin Wilson in the amount of $15,135.00. Because of the restitution
award and the amount of prison time that has been ordered, Im not going to order any

29
Appellants Brief Messel v. State

passing between 3:00 a.m. and 3:25 a.m. It passed at 3:23 a.m. going toward Bloomington [Tr. v.

11 p. 324]. Surveillance video from the Pritchards between 3:00 a.m. and 3:30 a.m. [Tr. v. 11 p.

224] showed one vehicle passing at 3:26 a.m. heading toward Bloomington [Tr. v. 11 p. 225].

Egler drove the distance between McClarens and Pritchards and it took two to three minutes [Tr.

v. 11 p. 325]. Surveillance video from a Speedway gas station at the north end of Walnut Street

in Bloomington showed the Kia there between 6:26 a.m. and 6:29 a.m. [Tr. v. 11 p. 227-228;

State Ex. 151]. A video from McDonalds less than a quarter mile from the Speedway showed a

vehicle similar to Messels and Messel personally in the restaurant [Tr. v. 11 p. 229-234; State

Ex. 159, 163-165]. A photo from the IU Credit Union showed Messel conducting a transaction

[Tr. v. 11 p. 235; State Ex. 160-161]. All were from the morning of April 24, 2015 [Tr. v. 11 p.

240].

SUMMARY OF THE ARGUMENT

The trial Court erred in permitting the State to offer evidence that Messel at some point

owned a Mag light when no murder weapon was found and no testimony supported a conclusion

that Wilson was bludgeoned by a Mag light.

No testimony or other evidence was introduced to show that Wilson was killed with a

Mag light. No murder weapon was recovered. Yet the State was permitted to introduce testimony

from a coworker of Messel that Messel told him during the previous year he had one. That

coworker never saw it.

The testimony invited the jury to speculate that Messel actually had one, that it was of a

size that could produce the damage suffered by Wilson, and that Wilson was a dangerous armed

24
Appellants Brief Messel V. State

respectfull submitted that Messels sentence is an outlier that should be leavened. McFall v.

State, 2017 WL 696065, at 5 (Ind. Ct. App. Feb. 22, 2017).

Because the trial Court failed to consider reasons clearly supported by the record and

before it at sentencing, this Court should reduce Messels sentence or remand this case to the trial

Court with instruction that it grant him a new sentencing hearing.

CONCLUSION

For the foregoing reasons, Mr. Messel requests this court to grant him a new trial, to

reduce his sentence or to grant him a resentencing, and to grant all other just and proper relief.

Respectfully submitted,

/s/ Kurt A. Young


Kurt A. Young
Indiana Attorney Number 1446-98
Attorney for Defendant-Appellant Daniel E. Messel

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on April 18, 2017, I led the foregoing electronically using the

Indiana E-ling System (IEFS). I certify further that the following individuals were electronically

served with the foregoing document:

Curtis T. Hill
Attorney General of Indiana

/s/ Kurt A. Young


Kurt A. Young

32
Appellants Brief Messel v. State

The State was permitted to introduce evidence that during the year before the incident in

this case [Tr. v. 9 p. 86] Messel had mentioned to his coworker something about a Mag light

flashlight [Tr. v. 9 p. 77]. The coworker did not remember the context but thought the mention

was something along the lines of self-defense [Tr. v. 9 p. 77, 91]. The coworker believed Messel

carried the light in his car [Tr. v. 9 p. 77]. However, he had never seen the flashlight [Tr. v. 9 p.

85], even though he was in Messels care two to three times a week [Tr. v. 9 p. 88].

Messel objected to the testimony, observing that since the murder weapon was unknown,

nobody could say a Mag light was used and that the blunt object could be a baseball bat, a pipe or

a large limb, as stated by the pathologist [App. v. 2 p. 224-229]. The only clear purpose in the

States introduction of the Mag light testimony was to invite the jury to speculate that Messel

actually had one, that it was of a size that could produce the damage suffered by Wilson, and that

Wilson was a dangerous armed man.

This case is similar to Hubbell v. State, 754 N.E.2d 884 (Ind. 2001), where in the absence

of any indication a gun was used, the State was permitted to introduce evidence of a handgun

found in the defendants home and bullets found in his vehicle was found to be an abuse of

discretion:

Hubbell contends that the admission of a handgun found in his home and bullets
found in his van violated Indiana Evidence Rule 403. The State argues that because the
gun matched bullets found in the van, the jury could have concluded that the gun was
used to coerce Myers into the van. Hubbell filed a pretrial motion in limine to exclude
this evidence arguing that there was no evidence that a gun was used to commit this
crime. The State argued that Myers left her work against her will, presuming that a gun
was used to coerce her. The trial court denied the motion.
We agree with Hubbell that the introduction of the gun and bullets was an abuse
of discretion. The State presented no evidence that Myers was coerced with a gun to leave
her place of employment and no evidence that the gun was in any way connected with her

26
Appellants Brief Messel v. State

murder. Its suggestion that Hubbell may have used the gun to coerce Myers is no more
than speculation given the absence of any other evidence suggesting the use of a weapon.
*890 There also was a danger of unfair prejudice from admission of the gun. As a
general proposition, we agree that the introduction of weapons not used in the
commission of the crime and not otherwise relevant to the case may have a prejudicial
effect. Lycan v. State, 671 N.E.2d 447, 454 (Ind.Ct.App.1996).
The highly attenuated relevance of the gun was insufficient to overcome its
potential prejudice.

Id. at 88990.

The Hubbell Court found the error harmless though because not only was Hubbell seen

driving his van away with the victim inside, and fibers near the womans body matched those in

Hubbells van, he confessed to a jail inmate that he murdered the woman. Id. at 90. There is no

such confession in this case.

As stated long ago:

It is not enough that evidence merely tends to support the conclusion of guilt; it must
support it. Baker v. State, supra. [138 N.E.2d 641 (Ind. 1956)]
It is not enough to sustain a conviction that the evidence, when given full faith and
credit, may warrant a suspicion or amount to a scintilla. Baker v. State, supra.
The verdict of a jury may not be based upon mere suspicion, possibility, guess or
conjecture. Christen v. State, 1950, 228 Ind. 30, 39, 40, 89 N.E.2d 445; Todd v. State,
1951, 230 Ind. 85, 90, 101 N.E.2d 922; Durbin v. State, Ind.Sup.1957, 140 N.E.2d 510,
511.
The material allegations of Count One of the indictment herein must be established by
substantial evidence or proper inferences drawn from such evidence.
The verdict of the jury cannot rest upon conjecture, speculation or guess.

Johnson v. State, 141 N.E.2d 444, 447 (Ind. 1957).

The speculative evidence allowed by the trial Court severely prejudiced Messel and certainly

contributed to his conviction of a serious crime in this case with a verdict supported in part by mere

speculation or conjecture. This Court should, therefore, reverse his conviction of murder and remand the

case for a new trial.

27
Appellants Brief Messel v. State

ARGUMENT II

The sentence in this case is inappropriate in light of the nature of the offense and the

character of the offender because it failed to take into consideration mitigating factors clearly

before the trial Court.

This Court has the authority to review and revise sentences pursuant to Ind. App. Rule

7(B), which states: The Court may revise a sentence authorized by statute if, after due

consideration of the trial court's decision, the Court finds that the sentence is inappropriate in

light of the nature of the offense and the character of the offender.

The standard of review was set forth in Griffin v. State, 963 N.E.2d 685, 692 (Ind. Ct.

App. 2012):

In Reid v. State, the Indiana Supreme Court reiterated the standard by which our state
appellate courts independently review criminal sentences:
Although a trial court may have acted within its lawful discretion in determining a
sentence, Article VII, Sections 4 and 6 of the Indiana Constitution authorize
independent appellate review and revision of a sentence through Indiana Appellate
Rule 7(B), which provides that a court may revise a sentence authorized by statute
if, after due consideration of the trial court's decision, the Court finds that the
sentence is inappropriate in light of the nature of the offense and the character of
the offender. The burden is on the defendant to persuade us that his sentence is
inappropriate.
876 N.E.2d 1114, 1116 (Ind.2007) (internal quotation and citations omitted).

Id.at 692.

In this case, Messel was sentenced to 60 years on his conviction of murder enhanced by

20 years upon a finding that he was a habitual offender. In the absence of the State seeking the

death penalty or life without parole, the 60 year sentence was an aggravated sentence stopping

only five years short of the maximum Messel could have received under Ind. Code 35-50-2-3.

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Appellants Brief Messel v. State

And the 20 additional years upon the finding that he was a habitual offender was the maximum

he could have received under Ind. Code 35-50-2-8(i)(1). Messel was 51 years old at the time of

sentencing, and the sentence herein is effectively a life sentence.

In imposing the maximum possible sentence for murder enhanced by a finding that

Messel was a habitual offender, the Court stated the following:

COURT: ... Mr. Messel, I do find it to be an aggravatorthat you have the prior criminal
history you have. Setting- even setting aside the three felony batteries that were found to
support the habitual. It was the forgery that was not submitted to the jury. Even setting
those aside, there were the felony forgery, at least - well, three, I believe, misdemeanor
batteries plus other misdemeanor convictions including resisting and I do find that
criminal history to be an aggravator because it shows a pattern of criminal conduct and a
pattern of violence. I do recognize, as Ms. Maryan has argued, that there was a substantial
period of time without some in there and so even taking that into consideration as
somewhat reducing the aggravating factor, I still find the criminal history to be an
aggravator. Other than that period of time without criminal conduct, I really dont see any
of the statutory mitigating factors here. And for that reason, I do find that the aggravating
factor, the criminal history even- even aside from the habitual- the convictions as for the
habitual, warrants an aggravated sentence. On the murder, the Court will sentence you,
Mr. Messel, to sixty years at the Indiana Department of Corrections all executed, none
suspended. With respect to the habitual, that is where I think the - the violent battery
felony convictions are reflected and the Courts sentences you to an additional twenty
years on the habitual. You will receive credit pursuant to Indiana Statute for time served
prior to sentencing which the Probation Department calculated as 517 actual days as of
yesterday, which is- we start there because the Department of Corrections starts with
today. I checked that, thats what I came up with as well. So 517 actual days served
pretrial. Under the statute that- for this level of offense says that you earn one day of
credit for every three served. One additional day for every three served. That would
reflect a total of 172.33 days on that credit in addition to the actual 517. I do want to also
state as a reason for the sentence, I know that the Pre Sentence report reflected the risk
assessment that probation had prepared in terms of risk of re-offense and that showed that
the risk of re-offense was high and I think considering that, but also just in the Courts
judgment, even aside from that risk assessment tool, just in the Courts judgment, based
on the brutality of the offense, based on the history, I think there is a high risk of
re-offense and that is also taken into consideration in the Courts sentence. Court costs
will be assessed at $183.00. Restitution will be ordered to Jeff Wilson in the sum of
$19,316.69 and to Robin Wilson in the amount of $15,135.00. Because of the restitution
award and the amount of prison time that has been ordered, Im not going to order any

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Appellants Brief Messel v. State

fines. Restitution will be entered as a judgment. Mr. Messel will be required to submit to
DNA testing as required by statute. There is nothing that this Court can do by way of the
sentence that brings complete justice here because, I think to me at least, justice includes
making - setting a wrong to a right, and in an offence like murder, of course, theres
nothing I can do to right that wrong. This is the sentence I believe that is warranted by the
circumstances of the case and the law.

[App. v. 2 p. 131-134].

There were, however, mitigating circumstances that were clearly before the Court at the

time of sentencing but were not mentioned. Ind. Code 35-38-1-7.1(b) sets forth mitigating

factors that, like the aggravating factors in subsection (a), may be considered by a court in

imposing sentence. In addition, subsection (c) permits a court to consider other factors it may

find appropriate and that are lawful.

Clearly before the Court in this case was the fact that Messel was physically and mentally

not in good health. He was the product of a twice-broken home, and he was a recent cancer

survivor, still suffering the effects of the treatment regimen he had undergone, and he was on

substantial medication. He also had a close relationship with his father and with his nephew.

Although he has a criminal history, his most recent brush with the law was a plea of guilty to a

class B misdemeanor in 2007 for an offense in 2006. Further, Messel did express his sorrow at

the loss suffered by the victims family.

Also before the Court was the fact that, although he maintained his innocense, after the

return of the guilty verdict on the murder count, Messel informed the Court that he wanted to

waive a trial by jury on the habitual offender enhancement. However, the State objected [Tr. v.

13 p. 81-82]. The Court recognized that both Messel and the State would have to agree to waive

jury [Tr. v. 13 p. 83], and since the State objected, the enhancement was tried to the jury [Tr. v.

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Appellants Brief Messel v. State

13 p. 82-101]. Such a willingness should be recognized as an indication that Messel did not want

to cause the Court and the State, and the jurors, the burden of a further jury trial after such a

lengthy proceeding. His willingness to waive a jury was the equivalent of a guilty plea in light of

his exercise of his right to maintain his innocence. We have held that a defendant who pleads

guilty deserves some mitigating weight be given to the plea in return. Anglemyer v. State, 875

N.E.2d 218, 220 (Ind. 2007) (citations omitted - on clarification of opinion below).

Although the foregoing factors were clearly known by the Court at the time of sentencing,

there is no mention of any of them in the Courts sentencing statement. As stated by the Court in

Anglemyer v. State, 868 N.E.2d 482 (Ind. 2007) clarified on rehearing:

One way in which a trial court may abuse its discretion is failing to enter a
sentencing statement at all. Other examples include entering a sentencing statement that
explains reasons for imposing a sentenceincluding a finding of aggravating and
mitigating factors if anybut the record does not support the reasons, or the sentencing
statement omits reasons that are clearly supported by the record and advanced for
consideration, or the reasons given are improper as a matter of law. Under those
circumstances, remand for resentencing may be the appropriate remedy if we cannot say
with confidence that the trial court would have imposed the same sentence had it properly
considered reasons that enjoy support in the record.

Id. at 49091 (emphasis supplied).

Messel does not minimize the tragic effects of such a serious crime as that in the instant

case. However, it must be recognized that every murder is serious. Yet the Legislature has

prescribed a wide range of punishment, ranging to a minimum of 45 years on the murder. And

similarly, a habitual offender enhancement, though not rising to the level of murder, is serious,

yet the Legislature has provided for a minimum sentence of six years, and there is nothing

particularly unique about the offenses that served to support that enhancement in this case. It is

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Appellants Brief Messel V. State

respectfull submitted that Messels sentence is an outlier that should be leavened. McFall v.

State, 2017 WL 696065, at 5 (Ind. Ct. App. Feb. 22, 2017).

Because the trial Court failed to consider reasons clearly supported by the record and

before it at sentencing, this Court should reduce Messels sentence or remand this case to the trial

Court with instruction that it grant him a new sentencing hearing.

CONCLUSION

For the foregoing reasons, Mr. Messel requests this court to grant him a new trial, to

reduce his sentence or to grant him a resentencing, and to grant all other just and proper relief.

Respectfully submitted,

/s/ Kurt A. Young


Kurt A. Young
Indiana Attorney Number 1446-98
Attorney for Defendant-Appellant Daniel E. Messel

CERTIFICATE OF FILING AND SERVICE

I hereby certify that on April 18, 2017, I led the foregoing electronically using the

Indiana E-ling System (IEFS). I certify further that the following individuals were electronically

served with the foregoing document:

Curtis T. Hill
Attorney General of Indiana

/s/ Kurt A. Young


Kurt A. Young

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