FILED Apr 20 2023, 8:32 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Cara Schaefer Wieneke Theodore E. Rokita Wieneke Law Office, LLC Attorney General of Indiana Brooklyn, Indiana Robert M. Yoke Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Brandon L. Pritcher, April 20, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2196 v. Appeal from the Vigo Superior Court State of Indiana, The Honorable Sarah K. Mullican, Appellee-Plaintiff. Judge Trial Court Cause No. 84D03-2009-MR-3218
Opinion by Judge Tavitas Judges Vaidik and Weissmann concur.
Tavitas, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 1 of 21 Case Summary [1] Following a jury trial, Brandon Pritcher was convicted of murder and sentenced
to the maximum term of sixty-five years of incarceration. Pritcher appeals and
claims that: (1) the prosecutor committed misconduct constituting fundamental
error by misstating the law during closing argument; (2) the State failed to
present sufficient evidence to support Pritcher’s conviction; and (3) his sixty-
five-year sentence is inappropriate in light of the nature of Pritcher’s offense and
his character. We disagree and, accordingly, affirm.
Issues [2] Pritcher presents three issues on appeal, which we restate as:
I. Whether the prosecutor committed misconduct constituting fundamental error by misstating the law during closing argument.
II. Whether the State presented sufficient evidence to support Pritcher’s conviction.
III. Whether Pritcher’s sixty-five year sentence is inappropriate in light of the nature of the offense and the character of the offender.
Facts [3] In 2020, Pritcher lived with his girlfriend, Felicia Mize, Pritcher’s seven-year-
old son, L.P., and Mize’s daughter. In June of that year, Pritcher’s relationship
with Mize ended, and he and L.P. lived alone. After the breakup of his
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 2 of 21 relationship with Mize, Pritcher became very angry and was “short fused.” Tr.
Vol. II p. 161. Although their relationship ended, Pritcher and Mize still texted
and telephoned each other.
[4] In September 2020, Pritcher became irate with L.P. because, Pritcher claimed,
L.P. had stolen money out of a piggy bank belonging to Mize’s daughter.
L.P.’s mother, Raven Layton, also saw Pritcher acting “irritable and angry”
toward L.P. Id. at 162. On September 17, Pritcher telephoned Mize and
informed her that he believed L.P. had stolen Pritcher’s loaded handgun. On
September 18, Valarie Wade, Pritcher’s neighbor, saw Pritcher outside with
L.P. Pritcher went to Wade’s home and told her that L.P. had been stealing
and asked Wade to speak with L.P. about the alleged stealing. Wade observed
that L.P. was crying, shaking, and appeared to be terrified.
[5] On September 19, Mize woke up shortly before 5:00 a.m. and saw that she had
missed several calls from Pritcher and that Pritcher had sent her several text
messages. Among the messages Pritcher sent to Mize were, “Not kidding
nothing I accidentally kill lamp,” and, “I’m going to jail for a while I love you
hate me I think I.” Ex. Vol. VI, State’s Ex. 37 (spelling and grammatical errors
in original). Mize believed “lamp” was how Pritcher’s phone auto-corrected
L.P.’s first name. Tr. Vol. II p. 125. Mize responded by texting, “Whats going
om are you ok,” and “Why do you keep saying you’re going to jail.” Ex. Vol.
VI, State’s Ex. 37 (spelling and grammatical errors in original). Pritcher
responded, “I’m going to jail.” Id.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 3 of 21 [6] At 5:03 a.m. on September 19, Pritcher called 911, and Detective Darryl
Cooley of the Terre Haute Police Department (“THPD”) arrived on the scene
four minutes later. When Detective Cooley arrived, Pritcher came out of his
house carrying L.P.’s limp body. Detective Cooley performed CPR on L.P.
until emergency medical personnel arrived. The medics put a breathing tube in
L.P. and transported him to a local hospital. Due to the severity of his injuries,
L.P. was flown to Riley Children’s Hospital in Indianapolis.
[7] Between 5:30 a.m. and 6:00 a.m. on September 19, Mize spoke with Pritcher on
the phone. Pritcher told Mize that L.P. was stealing money but that L.P.
denied doing so. Accordingly, Pritcher said, he “beat [L.P.’s] ass.” Tr. Vol. II
p. 127. Pritcher told Mize that L.P. went into his bedroom and began to beat
his head against the metal bunkbed and choked himself. Pritcher claimed that,
after this, L.P. made a strange sound and fell to the floor unconscious. Pritcher
told Mize that he attempted to revive L.P. by splashing cold water on the boy’s
face. He also claimed to have performed CPR on L.P. until the police arrived.
[8] At approximately 5:30 a.m. that morning, Pritcher telephoned L.P.’s mother,
Layton, but hung up before she could answer the phone. Layton repeatedly
tried to call Pritcher back, and when he finally answered, Pritcher told Layton
that he “whipp[ed] [L.P.’]s ass” because he caught the boy looking in the couch
for change. Id. at 165. Pritcher repeated his story that L.P. locked himself in
his room and banged his head until he was unconscious. Pritcher told Layton
that she needed to go to the local hospital where L.P. had been taken.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 4 of 21 [9] When L.P. arrived at Riley, he was alive but in very poor condition. Medical
examination of L.P. revealed that he had suffered from horrific abuse. He was
covered in bruises “from head-to-toe,” Tr. Vol. III p. 139, and had bruises on
both ears, his eyes, forehead, arms, legs, both buttocks, and had scratches on his
side. The bruises were consistent with repeated, high-velocity blows, which is
consistent with child abuse. The bruising on L.P.’s buttocks were from a
spanking injury, and the bruises to L.P.’s ears were caused by someone
grabbing the child “by the ear and shak[ing] [his] head.” Id. at 57. L.P. had
anemia due to internal hemorrhaging in his brain. Doctors at Riley determined
that L.P. would not survive, and he was pronounced dead the following day.
L.P. died as a result of blunt-force injuries to the head that caused numerous
subgaleal hemorrhages and a subdural hemorrhage. The death was determined
to be a homicide.
[10] As L.P. was being transported to the hospital, Pritcher spoke with Detective
Cooley at Pritcher’s home. Pritcher told Detective Cooley that L.P. was a
pathological liar who had been stealing money to give to L.P.’s mother,
Layton. Pritcher also claimed that L.P. had “anger issues.” Tr. Vol. II p. 194.
Pritcher admitted that he had spanked L.P. for his alleged stealing, after which,
Pritcher claimed, L.P. locked himself inside his bedroom. Pritcher told Cooley
that he had to break down the door to L.P.’s room, at which point L.P. began
to bang his head against the wall and bunkbed. After this, Pritcher claimed,
L.P. “squeal[ed],” fell to the floor, and was unresponsive. Id. Pritcher told
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 5 of 21 Detective Cooley that he did not immediately call 911 because he thought L.P.
would “come around.” Id. at 199.
[11] The police took Pritcher to the police station, where they advised him of his
Miranda rights. Pritcher agreed to speak with the detectives. Pritcher repeated
his claims that L.P. was stealing money and was a pathological liar. Pritcher
stated, “it’s f**king obvious I beat his ass, but he’s in there banging his f**king
head off of s**t. . . . I mean, I beat his ass . . . I whipped his ass[.]” Tr. Vol. III
p. 78. Pritcher stated that he let anger “get the best of [him],” that he “[k]ept
whipping [L.P.] because [L.P.] was going to tell the f**king truth,” and that he
“kept whipping him then [L.P.] went into his room,” where, Pritcher claimed,
L.P. beat his own head and punched and smacked himself. Id. at 83. Pritcher
admitted that he “popped [L.P.] on the back of the head.” Id. at 95.
[12] The police subsequently searched Pritcher’s home and discovered blood, later
determined to be L.P.’s, on the floor and wall of the hallway. They also
observed two round dents in the wall below the thermostat. These dents
appeared to have been made by L.P.’s head hitting the wall. L.P.’s blood was
found on the sink, toilet, and floor of the bathroom. The police found a belt
belonging to Pritcher that had L.P.’s blood on it. L.P.’s bedroom door had
been torn off the frame, but the police found no dents or blood on the frame of
L.P.’s bed. The police also searched Pritcher’s cell phone and discovered that
he had deleted the text messages he had sent to Mize on the morning of
September 19, in which he stated he thought he had killed L.P.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 6 of 21 [13] On September 22, 2020, the State charged Pritcher with Count I: murder, a
felony; Count II: neglect of a dependent resulting in death, a Level 1 felony;
Count III: aggravated battery of a child less than fourteen years of age, a Level
1 felony; Count IV: domestic battery resulting in serious bodily injury to a
person less than fourteen years of age, a Level 3 felony; and Count V: neglect of
a dependent resulting in serious bodily injury, a Level 3 felony.
[14] The trial court held a jury trial from July 11 to July 14, 2022. During closing
statements, the prosecuting attorney argued to the jury that, to meet the
statutory definition of “knowingly,” Pritcher “had to have known when he did
this that it could result in [L.P.]’s death.” Tr. Vol. IV p. 54. Defense counsel
argued that Pritcher did not knowingly kill L.P. In rebuttal, the prosecuting
attorney’s arguments included the following statements:
This is knowingly. A person . . . engages in conduct knowingly if, if he engages in this conduct, he is aware of a high probability of doing so. In other words, he’s not sleep-walking; he’s not doing, he didn’t stumble over somebody. He is aware of a high probability of what he’s doing. He doesn’t have to know that when he hits that kid on the back of the head it’s gonna kill him. Doesn’t have to know that. He just has to know that when he’s throwing that kid down or against the wall or whatever, that he is aware that that is what he’s doing. That’s what knowingly is. He doesn’t have to know this is gonna result in this death. He has to know . . . what he’s doing. And then the other element is, that did result in his death. He doesn’t have to know that that’s what’s gonna happen. However, he knew that what he was doing was pretty damn bad.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 7 of 21 Tr. Vol. IV p. 69 (emphasis added). Pritcher did not object to these statements,
request an admonishment, or move for a mistrial.
[15] The trial court’s final instructions to the jury included the statutory definition of
the charged crime of murder as follows:
A person who knowingly or intentionally kills another human being commits Murder, a Felony.
Before you may convict the Defendant, the State must have proved each of the following beyond a reasonable doubt:
1. The Defendant Brandon L. Pritcher;
2. knowingly or intentionally;
3. killed;
4. L.P.
If the State failed to prove each of these elements beyond a reasonable doubt, you must find the Defendant not guilty of Murder, a Felony, as charged in Count 1.
Appellant’s App. Vol. II p. 122. The trial court also instructed the jury on the
statutory definition of the mens rea of “knowingly,” as follows:
A person engages in conduct “knowingly” if, when he engages in this conduct, he is aware of a high probability that he is doing so.
Id. at 128. This is an almost verbatim quote of Indiana Code Section 35-41-2-
2(b). The court’s instructions also informed the jury that “[s]tatements made by
the attorneys are not evidence,” id. at 137, and that the court’s instructions “are
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 8 of 21 your best source in determining the law.” Id. at 117. The jury found Pritcher
guilty as charged on all counts.
[16] The trial court held a sentencing hearing on August 16, 2022. The court found
as aggravating that Pritcher’s history of juvenile and adult criminal behavior,
though not terribly lengthy, was “quite disturbing and reflects poorly on his
character.” Appellant’s App. Vol. II p. 246. Specifically, Pritcher had juvenile
adjudications for what would be, if committed by an adult, sexual battery, a
Class D felony, and criminal confinement, a Class D felony. The factual basis
for this adjudication was that Pritcher forced his victim to have sex while
another individual held her down and placed a shirt in her mouth to gag her.
[17] As an adult, Pritcher had a criminal conviction for underage consumption of an
alcoholic beverage, a Class C misdemeanor. The court also found as
aggravating that L.P. was only seven years old when Pritcher killed him. The
trial court assigned great aggravating weight to the fact that Pritcher was L.P.’s
father and had care and custody of L.P. The court also found as aggravating
that L.P.’s injuries were “some of the most disturbing evidence this Court has
observed.” Id. at 247. Lastly, the court noted that, after fatally beating L.P.,
Pritcher chose to call and message his girlfriend instead of immediately seeking
medical aid, which demonstrated a “shocking disregard for the life and health
of his child.” Id.
[18] As mitigating, the trial court noted that: Pritcher had a history of mental health
issues, including bipolar disorder, PTSD, and borderline personality disorder;
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 9 of 21 Pritcher had been a victim of sexual abuse as a child; and Pritcher had suffered
from concussions as a juvenile. The trial court assigned these factors little
mitigating weight and determined that the aggravators greatly outweighed the
mitigators. The trial court entered judgment of conviction only on the murder
verdict, due to double jeopardy concerns, and imposed the maximum sixty-five
year sentence. Pritcher now appeals. 1
Discussion and Decision I. Fundamental Error Due to Prosecutor’s Misstatements of the Law
[19] Pritcher first argues that fundamental error occurred because the prosecuting
attorney committed misconduct by misstating the law regarding the State’s
burden of proof during the State’s rebuttal to Pritcher’s closing statement.
Pritcher argues fundamental error because he acknowledges that he failed to
object to the prosecutor’s comments at trial and failed to request an
admonishment to the jury or move for a mistrial. These steps are required to
preserve a claim of prosecutorial misconduct for appeal. Ryan v. State, 9 N.E.3d
663, 667 (Ind. 2014).
[20] When a claim of prosecutorial misconduct has been waived due to failure to
properly raise the claim in the trial court, the defendant on appeal must
establish not only the grounds for prosecutorial misconduct but must also
1 We held oral argument in this case on March 16, 2023, at Andrean High School in Merrillville, Indiana. We extend our thanks to the administration, faculty, and students of the school for their hospitality, and we commend counsel for the quality of their arguments.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 10 of 21 establish that the prosecutor’s conduct constituted fundamental error. Ryan, 9
N.E.3d at 667-68 (citing Booher v. State, 773 N.E.2d 814, 817-18 (Ind. 2002)). In
Ryan, our Supreme Court explained in some detail the difficulty of establishing
fundamental error on appeal:
Fundamental error is an extremely narrow exception to the waiver rule where the defendant faces the heavy burden of showing that the alleged errors are so prejudicial to the defendant’s rights as to make a fair trial impossible. In other words, to establish fundamental error, the defendant must show that, under the circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors (a) constitute clearly blatant violations of basic and elementary principles of due process and (b) present an undeniable and substantial potential for harm. The element of such harm is not established by the fact of ultimate conviction but rather depends upon whether [the defendant’s] right to a fair trial was detrimentally affected by the denial of procedural opportunities for the ascertainment of truth to which he otherwise would have been entitled. In evaluating the issue of fundamental error, our task in this case is to look at the alleged misconduct in the context of all that happened and all relevant information given to the jury—including evidence admitted at trial, closing argument, and jury instructions—to determine whether the misconduct had such an undeniable and substantial effect on the jury’s decision that a fair trial was impossible.
9 N.E.3d at 668 (internal citations, quotations, and footnote omitted). The
Ryan Court also noted that an appellant “is ‘highly unlikely’ to prevail on a
claim of fundamental error relating to prosecutorial misconduct.” Id. (citing
Baer v. State, 942 N.E.2d 80, 99 (Ind. 2011)).
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 11 of 21 [21] In the present case, Pritcher argues that the prosecutor, during the State’s
rebuttal, told the jury that “Pritcher had to be aware of a high probability that
he was . . . battering L.P.’s head, and not the prohibited conduct of killing L.P.”
Appellant’s Br. p. 13. This, Pritcher argues, is incorrect because, to convict
Pritcher of murder, the State had to prove that Pritcher was aware of a high
probability that he would kill L.P., not simply batter him. Because the
prosecutor misstated the law, Pritcher claims that the prosecutor committed
prosecutorial misconduct. The State counters that the prosecutor’s statements,
taken as a whole, did not misstate the law.
[22] We think it clear that the prosecutor’s statement during rebuttal misstated the
law. The prosecutor essentially argued that the jury need find only that Pritcher
was aware of a high probability that he was beating L.P., not that he was aware
of a high probability that he would kill L.P. Yet, in order to convict Pritcher of
murder, the State had to prove that Pritcher was aware of a high probability
that his conduct would kill L.P.
[23] The question, then, is whether the prosecutor’s misstatement of the law
constitutes fundamental error. Pritcher claims that the prosecutor’s
misstatement of the law made a fair trial impossible because the jury could
convict Pritcher for murder if he only knowingly beat L.P., even if he did not
knowingly kill L.P. The State argues that, because the trial court properly
instructed the jury with regard to the State’s burden of proof and the elements
of the crime, no fundamental error occurred. We agree with the State.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 12 of 21 [24] It is well settled that “the jury is presumed to follow the trial court’s instructions
and not law recited by counsel during arguments.” Laux v. State, 985 N.E.2d
739, 750 (Ind. Ct. App. 2013). Thus, our courts have long held that any
misstatement of law during closing arguments is presumably cured by the trial
court’s final jury instructions. See Santiago v. State, 985 N.E.2d 760, 764 n.2
(Ind. Ct. App. 2013); Laux, 985 N.E.2d at 750 (both citing Hudgins v. State, 451
N.E.2d 1087, 1091 (Ind. 1983)). “[C]losing arguments are rightly received by
the jury as partisan advocacy, not impartial statements of the law, and thus are
likely to have little effect on the jury’s understanding of the law.” Castillo v.
State, 974 N.E.2d 458, 469 n.11 (Ind. 2012); accord Ryan, 9 N.E.3d at 668.
[25] Here, the trial court’s final instructions properly informed the jury that, before it
could convict Pritcher of murder, the State had to prove beyond a reasonable
doubt that Pritcher “knowingly” killed L.P. The final instructions also correctly
defined the “knowingly” mens rea. Read together, the final instructions properly
informed the jury that, to convict Pritcher of murder, the State had to prove
beyond a reasonable doubt that Pritcher engaged in conduct by beating L.P.
and that he was aware of a high probability that L.P. might die as a result. See
Leonard v. State, 80 N.E.3d 878, 882 (Ind. 2017) (“A person knowingly kills
when they are ‘aware of a high probability’ that their actions may kill.”)
(quoting I.C. § 35-41-2-2(b)). Under these facts and circumstances, the
prosecutor’s misstatement of the law did not amount to fundamental error.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 13 of 21 II. Sufficiency of the Evidence
[26] Pritcher next argues that the State presented insufficient evidence to support his
conviction for murder. Claims of insufficient evidence “warrant a deferential
standard, in which we neither reweigh the evidence nor judge witness
credibility.” Powell v. State, 151 N.E.3d 256, 262 (Ind. 2020) (citing Perry v.
State, 638 N.E.2d 1236, 1242 (Ind. 1994)). We consider only the evidence
supporting the judgment and any reasonable inferences drawn from that
evidence. Id. (citing Brantley v. State, 91 N.E.3d 566, 570 (Ind. 2018), cert.
denied). “We will affirm a conviction if there is substantial evidence of
probative value that would lead a reasonable trier of fact to conclude that the
defendant was guilty beyond a reasonable doubt.” Id. We affirm the
conviction “unless no reasonable fact-finder could find the elements of the
crime proven beyond a reasonable doubt. It is therefore not necessary that the
evidence overcome every reasonable hypothesis of innocence. The evidence is
sufficient if an inference may reasonably be drawn from it to support the
verdict.” Sutton v. State, 167 N.E.3d 800, 801 (Ind. Ct. App. 2021) (quoting
Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
[27] To obtain a conviction for murder, the State was required to prove that Pritcher
knowingly or intentionally killed L.P. “A person knowingly kills when they are
‘aware of a high probability’ that their actions may kill.” Leonard, 80 N.E.3d at
882 (quoting I.C. § 35-41-2-2(b)). “Knowledge and intent are both mental states
and, absent an admission by the defendant, the jury must resort to the
reasonable inferences from both the direct and circumstantial evidence to
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 14 of 21 determine whether the defendant has the requisite knowledge or intent to
commit the offense in question.” Stubbers v. State, 190 N.E.3d 424, 432 (Ind. Ct.
App. 2022), trans. denied; see also Leonard, 80 N.E.3d at 883 (“Because
knowledge is the mental state of the actor, the trier of fact must resort to
reasonable inferences of its existence.”). “In deciding whether a defendant was
aware of the high probability that his actions would result in the death of a
victim, the jury may consider the duration and brutality of a defendant’s
actions, and the relative strengths and sizes of a defendant and victim.”
Williams v. State, 749 N.E.2d 1139, 1141 (Ind. 2001) (citing Childers v. State, 719
N.E.2d 1227, 1229 (Ind. 1999)).
[28] Pritcher acknowledges that there was sufficient evidence to prove that he struck
L.P. on the head and that L.P. died as a result of injuries to his head. Pritcher
argues, however, that the State failed to prove that Pritcher knowingly killed
L.P. Specifically, he contends that the State argued and proved only that, when
Pritcher beat L.P., he could 2 cause L.P.’s death. In so arguing, Pritcher refers
2 Pritcher briefly argues that the prosecutor also misstated the law by arguing that, to knowingly kill L.P., Pritcher had to be aware that his actions “could” result in L.P.’s death, as opposed to “would” result in his death. Our Supreme Court rejected a similar argument in Ramirez v. State, 174 N.E.3d 181 (Ind. 2021). In Ramirez, the trial court used the word “could” instead of “would” when giving a supplemental instruction to the jury regarding the “knowingly” mens rea in a murder case. The Court held that this was not a misstatement of the law, noting that the trial court’s instruction was “prefaced by requiring that the jury must find the defendant was aware of ‘a high probability that said injury could cause the death of the other person.’” Id. at 199 (emphasis added). Accordingly, the Court held that, “the instruction’s use of the phrase ‘high probability’ clearly told the jury that a probability—not a possibility—was required.” Id. The Court further noted that “appellate courts have used ‘could’ instead of ‘would’ when describing the level of culpability required to find that a defendant ‘knowingly’ killed a victim.” Id. (citing Jones v. State, 689 N.E.2d 722, 725 (Ind. 1997)). Again, here, any error in the use of the word “could” was during the State’s closing argument, not the trial court’s instructions, which properly defined the “knowingly” mens rea. Given the holding in Ramirez, Pritcher’s argument regarding the prosecutor’s use of the word “could” is unavailing.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 15 of 21 again to the prosecutor’s misstatement of the law in its rebuttal argument. The
State counters that the facts viewed in the light most favorable to the jury’s
verdict are sufficient to prove that Pritcher knowingly killed L.P.
[29] We conclude that the State presented sufficient evidence to support Pritcher’s
conviction. Pritcher was alone with L.P. when the boy’s injuries were inflicted;
thus, there is no question about whether another caretaker inflicted the injuries.
Pritcher claims that many of L.P.’s injuries could have been self-inflicted. The
only evidence, however, supporting this theory is Pritcher’s own self-serving
testimony, which the jury was free to discredit. Moreover, the forensic
pathologist who testified at trial explicitly explained that L.P.’s injuries could
not have been self-inflicted. Indeed, there was testimony that L.P.’s injuries
were caused by repeated, forceful blows to the boy’s head. When speaking with
the police, Pritcher also admitted to “beat[ing]” and “whipp[ing] [L.P.’s] ass.”
Tr. Vol. III p. 78.
[30] In spite of all of this evidence, Pritcher argues that he did not “knowingly” kill
L.P. Pritcher, however, was a full-grown man who stood 6' 2" tall and weighed
over 240 pounds. L.P., in contrast, was 4' 5" tall and weighed just seventy-
seven pounds. Pritcher’s beatings also inflicted horrific injuries on L.P., who
had bruises all over his body, in addition to severe bleeding in his brain.
[31] In cases involving adults beating small children, the requisite intent to kill may
be “inferred from repeated severe blows to a child where anyone with
reasonable judgment would know that blows of such magnitude could fatally
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 16 of 21 injure the child.” Anderson v. State, 466 N.E.2d 27, 30 (Ind. 1984). Given the
nature and severity of L.P.’s injuries, sufficient evidence was presented from
which the jury could reasonably conclude that Pritcher was aware of a high
probability that his actions of beating L.P. might kill the boy. See Burns v. State,
59 N.E.3d 323, 328 (Ind. Ct. App. 2016) (“[W]here blows of magnitude are
repeated, a jury [can] conclude that the defendant had an intent to kill.”) (citing
Nunn v. State, 601 N.E.2d 334, 339 (Ind. 1992)).
III. Appropriateness of Pritcher’s Sentence
[32] The trial court entered judgment of conviction only on the murder verdict and
sentenced Pritcher to the maximum sixty-five year sentence. Pritcher argues
that this sentence is inappropriate. The Indiana Constitution authorizes
independent appellate review and revision of a trial court’s sentencing decision.
See Ind. Const. art. 7, §§ 4, 6; Jackson v. State, 145 N.E.3d 783, 784 (Ind. 2020).
Our Supreme Court has implemented this authority through Indiana Appellate
Rule 7(B), which allows this Court to revise a sentence when it is
“inappropriate in light of the nature of the offense and the character of the
offender.” Our review of a sentence under Appellate Rule 7(B) is not an act of
second guessing the trial court’s sentence; rather, “[o]ur posture on appeal is [ ]
deferential” to the trial court. Bowman v. State, 51 N.E.3d 1174, 1181 (Ind.
2016) (citing Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014)). We exercise our
authority under Appellate Rule 7(B) only in “exceptional cases, and its exercise
‘boils down to our collective sense of what is appropriate.’” Mullins v. State, 148
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 17 of 21 N.E.3d 986, 987 (Ind. 2020) (per curiam) (quoting Faith v. State, 131 N.E.3d
158, 160 (Ind. 2019)).
[33] The principal role of appellate review of sentences is “to attempt to ‘leaven the
outliers.’” McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (quoting Cardwell v.
State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The point is “not to achieve a
perceived correct sentence.” Id. “Whether a sentence should be deemed
inappropriate ‘turns on our sense of the culpability of the defendant, the severity
of the crime, the damage done to others, and myriad other factors that come to
light in a given case.’” Id. (quoting Cardwell, 895 N.E.2d at 1224). When
determining whether a sentence is inappropriate, the advisory sentence is the
starting point the legislature has selected as an appropriate sentence for the
crime committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014).
[34] Pritcher received the maximum sentence for murder. See Ind. Code § 35-50-2-
3(a). “The Indiana Supreme Court has noted that ‘the maximum possible
sentences are generally most appropriate for the worst offenders.’” Martin v.
State, 179 N.E.3d 1060, 1071 (Ind. Ct. App. 2021) (quoting Buchanan v. State,
767 N.E.2d 967, 973 (Ind. 2002)), trans. denied.
This is not, however, a guideline to determine whether a worse offender could be imagined. Despite the nature of any particular offense and offender, it will always be possible to identify or hypothesize a significantly more despicable scenario. Although maximum sentences are ordinarily appropriate for the worst offenders, we refer generally to the class of offenses and offenders that warrant the maximum punishment. But such class encompasses a considerable variety of offenses and offenders.
Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 18 of 21 Id. (quoting Buchanan, 767 N.E.2d at 973).
A. Nature of the Offense
[35] Our analysis of the “nature of the offense” requires us to look at the nature,
extent, heinousness, and brutality of the offense. See Brown v. State, 10 N.E.3d
1, 5 (Ind. 2014). Deference to the trial court’s sentence “should prevail unless
overcome by compelling evidence portraying in a positive light the nature of the
offense (such as [being] accompanied by restraint, regard, and lack of
brutality).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). We may also
consider whether the offender “was in a position of trust” with the victim.
Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011).
[36] In the present case, Pritcher acknowledges that the killing of a child is always
an egregious offense, but he repeats his claim that there was no evidence that he
knowingly killed L.P. This merely restates his sufficiency-of-the-evidence
argument, which we have rejected above. We can find no compelling evidence
that would portray the nature of Pritcher’s offense in a positive light. Pritcher
savagely beat his own seven-year-old son and inflicted numerous, horrific
injuries that resulted in the young child’s untimely death. The photos of L.P.’s
severe injuries, which were admitted into evidence and included in the record,
are difficult to look at, even for those who are accustomed to seeing photos of
murder victims. Pritcher showed no restraint, regard, or lack of brutality while
beating his son to death. We also cannot overlook the position of trust that
Pritcher was in as L.P.’s father. Pritcher was the sole physical custodian of his
own son and abused this position of trust in one of the most unspeakable ways Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 19 of 21 imaginable. The nature of Pritcher’s offense in no way suggests that Pritcher’s
maximum sixty-five year sentence is inappropriate.
B. Character of the Offender.
[37] Our analysis of the character of the offender involves a broad consideration of a
defendant’s qualities, including the defendant’s age, criminal history,
background, past rehabilitative efforts, and remorse. Harris v. State, 165 N.E.3d
91, 100 (Ind. 2021). The significance of a criminal history in assessing a
defendant’s character and an appropriate sentence varies based on the gravity,
nature, proximity, and number of prior offenses in relation to the current
offense. Pierce, 949 N.E.2d at 352-53. “Even a minor criminal history is a poor
reflection of a defendant’s character.” Prince v. State, 148 N.E.3d 1171, 1174
(Ind. Ct. App. 2020) (citing Moss v. State, 13 N.E.3d 440, 448 (Ind. Ct. App.
2014), trans. denied). Again, deference to the trial court’s sentence “should
prevail unless overcome by compelling evidence portraying in a positive light . .
. the defendant’s character (such as substantial virtuous traits or persistent
examples of good character).” Stephenson, 29 N.E.3d at 122.
[38] Pritcher notes that he has only one adult criminal conviction, for the minor
offense of underage consumption of alcohol. But his juvenile history for sexual
battery and criminal confinement reflects poorly on his character. During the
sentencing hearing, moreover, L.P.’s mother, Layton, testified that the only
point during the trial in which Pritcher showed any emotion was when
Pritcher’s ex-girlfriend, Mize, showed up to the trial accompanied by another
man. And Mize testified that Pritcher physically abused her during their Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 20 of 21 relationship by punching and choking her on several occasions. Pritcher’s poor
character was further evidenced when Pritcher chose to call and text Mize
instead of immediately calling 911, which, as the trial court noted, showed a
“shocking disregard for the life and health of his child.” Appellant’s App. Vol.
II p. 247.
[39] Although Pritcher argues that his gainful employment reflects well on his
character, we have long held that most people are gainfully employed, and this
does not weigh in favor of a lesser sentence. Hale v. State, 128 N.E.3d 456, 465
(Ind. Ct. App. 2019) (citing Holmes v. State, 86 N.E.3d 394, 399 (Ind. Ct. App.
2017), trans. denied). Considering the brutal and heinous nature of Pritcher’s
offense and his lack of good character, and giving due deference to the trial
court’s sentencing decision, we cannot say that Pritcher’s sixty-five year
sentence for the beating death of his seven-year-old son is inappropriate.
Conclusion [40] The prosecutor’s misstatement of the law during closing argument did not
constitute fundamental error because the trial court properly instructed the jury
regarding the elements of murder and the correct definition of the requisite mens
rea of knowingly. The State presented sufficient evidence to support Pritcher’s
conviction, and Pritcher’s sixty-five year sentence is not inappropriate.
Accordingly, we affirm Pritcher’s conviction and sentence.
[41] Affirmed.
Vaidik, J., and Weissmann, J., concur. Court of Appeals of Indiana | Opinion 22A-CR-2196 | April 20, 2023 Page 21 of 21