Appellant James M. Raub challenges his conviction for murder, Ind.Code § 85-42-1-1 (Burns 1985 Repl.). The trial court sentenced Raub to forty years in prison.
On direct appeal, Raub raises two issues:
1) Whether the evidence is sufficiеnt to support the murder conviction despite Raub's introduction of evxdence about sudden heat, and
2) Whether the trial court properly admitted four photographs.
The evidence at trial established that Raub killed Russell F. Taskey during the early morning hours of January 28, 1984. Tas-key came home from work at 4:30 p.m. on January 27, bringing with him a casе of beer, two bottles of liquor, and some mixers. Taskey and Raub spent the evening drinking and smoking marijuana in Tas-key's apartment. Raub had lived with Tas-key for about a month,. He hаd been hitch hiking when Taskey picked him up. Raub told Taskey he had broken up with his girlfriend, had been kicked out of his stepfather's house, and had nowhere to go. Taskey allowed Raub to sleep on the floor of his apartment and offered to pay twenty dollars a week if Raub would clean the place.
Raub testified that Taskey raped him on the night of the killing. Around three o'clock in the morning, Taskey got up to get another beer. He came back into the living room. Taskey then told Raub he was going to have sexual intercourse with him. Raub testified Taskey hit him three times and said he would beat Raub up if he did not submit. Taskey ripped the back of Raub's pants. Then, according to Raub's testimony, Taskey anally raped him.
Raub said he was hurt, embarrassed, and humiliated. He lay down and cried for three or four minutes. He got up, went to the kitchen, аnd grabbed a knife. Raub proceeded to the bedroom where Taskey was lying on the bed facing him. Taskey asked Raub what he was doing with the knife. Raub told him he was hurt. Taskey laughed,. Raub said he became enraged and plunged the knife into Taskey's chest. *82 He grabbed Taskey, pulled him off the bed and dragged him to the door. Raub realized the nеighbors might look through their peep holes and see him dragging the body with a knife in the chest, so he ripped small pieces of paper from a magazine and сovered the peep holes.
Raub continued to drag the body outside. Some neighbors who were just coming home saw Raub with the body. One of them asked Raub if something wаs wrong. Raub replied that they had been drinking and his friend fell and hit his head. The neighbors went inside and called an ambulance. Upon hearing the sirens, Raub jumped into a car аnd left.
At trial the State called a doctor to testify about his examination of Raub on the day of the crime. The doctor stated that although there was evidence of a history of anal rape, there was no evidence of a recent rape. The doctor also found mild tenderness in Raub's jaw but no fractures or contusions.
I. Sufficiency of Evidence
Raub argues the evidence is insufficient to establish malice and the absence of sudden heat. Murder is the knowing or intentional killing of another human being. Ind.Code § 35-42-1-1. Malice is not an element of murder. Brown v. State (1987), Ind.,
Sudden heat is "sufficient provocation to excite in the mind of the defendant such emotions as either anger, rage, sudden resentment, or tеrror as may be sufficient to obscure the reason of an ordinary man...." Hardin v. State (1980),
To determine if the evidence is sufficient, this Court will look to the evidence favorable to the verdict and will draw reasonable inferences from that evidence. Loyd v. State (1980),
The State showed that despite Raub's assertion he was dragging Taskey to a car to take him to the hospital, the path of the blood indicated hе was taking the body to a nearby trash dump. Raub admitted covering the peep holes to conceal the body from the neighbors, and the State showed that a telephone cord had been cut in the apartment. These facts further the inference that Raub did not act in sudden heat.
While Raub claims Taskey raped him, the physical evidence is inconclusive. Raub's pants were torn in back and he did have some tenderness in the jaw, but scientific tests on Raub for seminal fluid and sperm were nеgative.
The jury weighed the evidence and assessed the credibility of Raub and the other witnesses. It received the court's instruction on voluntary and involuntary manslaughter. The jury reasonably found Raub guilty of murder beyond a reasonable doubt.
II. Admission of Photographs
Raub argues the trial court erred when it admitted four photographs. Admission of photographic evidence rests within the trial court's discretion, and on appeal we will not disturb the ruling unless it is clearly erroncous. Thornton v. Pender (1978),
Exhibit 2, The State offered a photograph of the parking lot where Raub carried Taskey's body. The photograph depicted the neighbor's truck and the empty *83 parking spot from which Raub drove the ear. Raub's counsel objected because the sponsoring witness did not know whether the photograph was actually taken on the night of the crime. The trial cоurt admitted the exhibit because it accurately depict ed the scene.
A photograph is competent evidence if it truly and accurately reprеsents that which it purports to depict. Boyd v. State (1986), Ind.,
[81 Exhibits 8a, 8b, 8c. Raub claims the trial court erred when it admitted three color photographs of Taskey's body. He maintains the pictures were cumulative and prejudicial.
Raub suggests the photographs are cumulаtive of Exhibit 9 and Exhibit 17. State's Exhibit 9 only shows Taskey's foot in a photograph of the parking lot. State's Exhibit 17 is another photograph of the parking lot with a view of Taskey's entire body. The wound is not visible. Exhibit Sa is a similar, though closer, picture. The State, however, presented Exhibit Sa before offering Exhibit 17. Therefore, Exhibit 8a cannot be cumulative оf an exhibit that was not yet in evidence. The photographs are not cumulative.
Raub posits the potential prejudice of the photographs outweighs their probative value. Photographs of murder victims are admissible if they provide relevant evidence and their value is not outweighed by their tendency to inflame thе passions of the jury against the defendant. Richardson v. State (1985), Ind.,
Exhibit 38. The trial court admitted over objectiоn a photograph of money found on Raub at the time of his arrest. Raub argues the exhibit is irrelevant to the murder and prejudicial to his defense. He suggests the jury might infer that Raub robbed Taskey, though robbery was neither alleged nor proved. While the money had little or no probative value, it also had little or no prejudicial effeсt. The court already had admitted without objection Taskey's wallet and checkbook, found on Raub, providing adequate inference of financial motivatiоn if anyone thought that was pertinent. Admission of this photograph was neither helpful nor harmful.
Exhibit 64. Finally, Raub chal lenges the admission of a photograph of Taskey priоr to his death. He maintains the exhibit's prejudice outweighs its probative value. This Court has previously held the admission of a photograph of a murder victim as she appeared before her death was not error. Skelton v. State (1986), Ind.,
The trial court is affirmed.