MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be Apr 04 2019, 6:54 am regarded as precedent or cited before any CLERK court except for the purpose of establishing Indiana Supreme Court Court of Appeals the defense of res judicata, collateral and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Sean C. Mullins Curtis T. Hill, Jr. Appellate Public Defender Attorney General of Indiana Crown Point, Indiana Matthew B. MacKenzie Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Eric Lee Yost, April 4, 2019 Appellant-Defendant, Court of Appeals Case No. 18A-CR-2151 v. Appeal from the Lake Superior Court State of Indiana, The Honorable Diane Ross Boswell, Appellee-Plaintiff. Judge Trial Court Cause No. 45G03-1408-FB-54
Bailey, Judge.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 1 of 17 Case Summary [1] Eric Raymond Yost (“Yost”) challenges his conviction of aggravated battery, a
Class B felony,1 and his sentence.
[2] We affirm.
Issues [3] Yost raises five issues which we consolidate and restate as:
I. Whether the State provided sufficient evidence to support his conviction of aggravated battery.
II. Whether the trial court abused its discretion when it denied Yost’s request to give a “reasonable theory of innocence” jury instruction.
III. Whether the trial court abused its discretion in sentencing.
IV. Whether Yost’s sentence is inappropriate in light of the nature of the offense and his character.
Facts and Procedural History [4] On the evening of December 12, 2013, Yost and Jacob Oxley (“Oxley”) both
attended a Local 150 Union meeting at a union hall in Merrillville. During the
1 Ind. Code § 35-42-2-1.5 (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 2 of 17 approximately two-hour meeting, some attendees went to the front of the
building to socialize and drink alcohol. After the meeting, many attendees—
including Yost and Oxley—stayed at the union hall to meet local business
representatives, socialize, and drink beer and moonshine. Yost did not know
Oxley but, when Yost observed Oxley drinking from a mason jar after the
meeting, Yost asked Oxley what was in the mason jar. Oxley handed Yost the
mason jar and, while Yost was smelling the contents of the container, Oxley
“popped” the container “into [Yost’s] face,” causing the contents to spill
slightly. Tr. Vol. VI at 41-42; 169-70. Oxley and Yost exchanged angry words
and then separated.
[5] Oxley and some of his coworkers then left the main hall of the building to meet
with a local business representative, Michael Simms (“Simms”), in another part
of the building. Oxley left the meeting with Simms before it was over and
waited for his friends in the foyer of the building. While Oxley waited, Yost
entered the foyer and began arguing with Oxley. Yost then used his right hand
to strike Oxley in the face, and Oxley’s head went backwards toward the brick
wall behind him. Yost punched Oxley again, this time with his left fist, and
Oxley fell down and “out the [front] door.” Tr. Vol. 6 at 184. Yost went
outside and kicked Oxley in the leg before retreating back inside the foyer.
Oxley returned to the foyer and attempted to kick Yost. Oxley lunged toward
Yost, and Yost threw Oxley to the ground and kicked him. David Naillieux
(“Naillieux”), a friend of Yost’s who had witnessed the altercation, came into
the foyer, got between the two men, and told Yost, “that’s enough” and “let’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 3 of 17 leave.” Tr. Vol. 6 at 53. Yost, Naillieux, and two of Yost’s other friends then
left the building together.
[6] After the altercation with Yost, Oxley’s friends Jason Gumulauski
(“Gumulauski”), Scott Tully (“Tully”), and Simms joined him in the main hall
of the building. Gumulauski noticed a red, swollen “knot” about the “[s]ize of
a half dollar” on Oxley’s forehead. Tr. Vol. III at 188. Simms noticed a large
“abrasion on [Oxley’s] forehead” that looked like “a rug burn.” Id. at 235.
Tully noticed Oxley’s “face seemed swollen” and it “seemed like [Oxley] had
abrasions” as well. Tr. Vol. IV at 35.
[7] Gumulauski drove Oxley back to his vehicle at a nearby restaurant. Oxley then
drove himself home. Once home, Oxley informed his fiancé, Jessica Renfrow
(“Renfrow”), that he had been in a fight at the union hall and had been “kicked
in the head.” Tr. Vol. II at 133-34. Renfrow saw that Oxley had a mark on his
cheek, a “thumb-sized” abrasion on his forehead, and a knot “not quite golf ball
size[d],” on the bottom back of his head. Id. at 111, 138-39. Oxley made
himself something to eat and then went to bed.
[8] The next morning, December 13, at 4:30, Oxley awoke, took two Tylenol pills
for a headache, and drove to the steel company where he worked. That
morning during work two of Oxley’s co-workers attempted to call him over the
radio several times, but Oxley did not respond. When his co-workers
approached the loader which Oxley was supposed to be operating, they
observed that he was slumped over in his chair and unresponsive. Oxley’s
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 4 of 17 coworkers called for medical assistance, and paramedics responded and
transported Oxley to the hospital where he was pronounced dead. On the
following day, Dr. Young M. Kim (“Dr. Kim”) performed an autopsy on Oxley
and prepared an autopsy report.
[9] On August 8, 2014, the State charged Yost with aggravated battery, a Class B
felony, battery resulting in serious bodily injury, as a Class C felony,2 and
involuntary manslaughter, as a Class C felony.3 Yost testified at his jury trial,
which began on June 25, 2018. Yost admitted that he confronted Oxley in the
foyer of the union building, argued with Oxley, and punched and kicked Oxley.
[10] Surveillance footage taken at the union hall on December 12, 2013, was
admitted into evidence as State’s Exhibits 45 and 46. The surveillance footage
was played for the jury twice during the trial and once again during the jury’s
deliberation. Both Yost and Naillieux testified that they had viewed the
surveillance footage in Exhibits 45 and 46 and that the footage accurately
reflected the altercation between Yost and Oxley.
[11] Dr. John Feczko (“Dr. Feczko”), a forensic pathologist, testified as a medical
expert for the State. Dr. Feczko testified that he had reviewed the autopsy
report completed by Dr. Kim, and he had also reviewed the photographs and
surveillance video taken at the union building on the evening of December 12,
2 I.C. § 35-42-2-1(a)(3) (2014). 3 I.C. § 35-42-1-4(c)(1) (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 5 of 17 2013. The autopsy report noted that Oxley had a number of injuries, including
“fresh” lacerations and abrasions on his face, right anterior shoulder, one knee,
and one thumb; a contusion hemorrhage surrounding a kidney; a large scalp
hemorrhage on the top part of his head; and injuries to his brain. Tr. Vol. V at
91.
[12] Dr. Feczko agreed with Dr. Kim’s conclusion that the cause of death was
“blunt force trauma due to the head injury with a large scalp hemorrhage.” Id.
at 104. Dr. Feczko would have added that the cause of death was from the
cerebral hemorrhage and herniation that resulted from the head injury. He
testified that the cerebral hemorrhage caused Oxley’s brain to swell, resulting in
heart arrhythmia (abnormalities in the heartbeat) and pulmonary edema
(swelling of the lungs), both of which resulted in the cessation of breathing and
death. Dr. Feczko concluded that the cause of death was “one hundred percent
blunt force trauma, cerebral swelling, [and] herniation,” and he explained that
the slow nature of the swelling of brain cells can lead to death up to a day after
the injury, during which time the injured party would still be able to walk and
talk and engage in activities. Id. at 107-09. Dr. Feczko testified that the
surveillance video supported the cause of death, but that he would have come
to the same conclusion without the video. He stated that medical records
concerning Oxley’s pre-existing seizure disorder “100 percent” did not change
his opinion on the cause of death. Id. at 106-08. Dr. Feczko testified that
Oxley did not die from Sudden Unexplained Death in Epilepsy (“SUDEP”)
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 6 of 17 because the hemorrhaging, brain swelling, herniation, and diffuse axonal
injuries that were present in Oxley are not seen with seizures.
[13] Dr. Wayel Kaakaji (“Dr. Kaakaji”), a neurological surgeon, testified as a
medical expert for Yost. Dr. Kaakaji reviewed the autopsy report and Oxley’s
past medical records. Dr. Kaakaji testified that Oxley died from “[b]rain
herniation, brain edema [swelling], [and] dysfunction of the lungs.” Tr. Vol. VI
at 122. He noted that Oxley had been diagnosed with a seizure disorder and
had been treated for seizures in 2005, 2008, 2009, and 2011. Dr. Kaakaji
opined that the swelling in Oxley’s brain could have been caused by SUDEP,
although he stated it was “possible” that it was caused by “blunt force trauma.”
Id. Dr. Kaakaji also testified that it would be “very unlikely” that Oxley would
have been able to function normally for ten hours if the hemorrhage and brain
injury had been caused by someone hitting him in the head. Id. at 123-24.
[14] Prior to closing argument, Yost requested a jury instruction stating: “In
determining whether the guilt of the accused is proven beyond a reasonable
doubt, you should require that the proof be so conclusive and sure as to exclude
every reasonable theory of innocence.” App. Vol. II at 196. The trial court
denied that request on the grounds that such an instruction is only required
when the judge determines that all the evidence of the actus reus element of the
crime is circumstantial, and that was not true in this case.
[15] The jury found Yost guilty of aggravated battery and battery resulting in serious
bodily injury but not guilty of involuntary manslaughter. At the August 8,
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 7 of 17 2018, sentencing hearing, the trial court vacated Count II, battery causing
serious bodily injury. In sentencing Yost on Count I, aggravated battery, the
court noted the following mitigating factors: a minimal criminal history; a
long-established work history; a stable family life; support from family and
friends; his successful raising of his children; an active religious life; no drug or
alcohol problem; the crime is unlikely to recur; Yost is likely to respond
affirmatively to probation; and Yost sincerely expressed “profound” remorse.
Tr. Vol. VIII at 93; Appealed Order at 1-2. The court also noted that Yost was
not a threat to the community; Yost was “an asset to the community and to his
family,” Tr. Vol. VIII at 94; and long-term incarceration “would not serve any
purpose,” id. The court found as an aggravator that “[t]here may be some
anger issues with [Yost].” Appealed Order at 2. The court found “that the
mitigators outweigh any aggravators” and sentenced Yost to the ten-year
advisory sentence, with six years to be served in the DOC and the other four
suspended and served in community corrections. Id.; Tr. Vol. VIII at 94-95.
The court stated that it gave the advisory4 sentence, despite the mitigating
circumstances, because the crime resulted in a death. Tr. Vol. VIII at 99. This
appeal ensued.
4 The trial court erroneously referred to the advisory sentence as the “presumptive” sentence. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 8 of 17 Discussion and Decision Sufficiency of the Evidence [16] Yost challenges the sufficiency of the evidence to support his conviction. Our
standard of review of the sufficiency of the evidence is well-settled:
When reviewing the sufficiency of the evidence needed to support a criminal conviction, we neither reweigh evidence nor judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). “We consider only the evidence supporting the judgment and any reasonable inferences that can be drawn from such evidence.” Id. We will affirm if there is substantial evidence of probative value such that a reasonable trier of fact could have concluded the defendant was guilty beyond a reasonable doubt. Id.
Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.
[17] To support Yost’s conviction of aggravated battery, the State was required to
prove that Yost (1) knowingly or intentionally (2) inflicted injury on Oxley (3)
that created a substantial risk of death. I.C. § 35-42-2-1.5. Yost admits that he
knowingly or intentionally inflicted injury on Oxley, but he maintains that he
did not intend to inflict injury that created a substantial risk of death. However,
“the severity of the injury is not an element of the prohibited conduct, but a
result of it.” Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016), trans.
denied. Therefore, the only intent the State was required to prove was that Yost
knowingly or intentionally inflicted injury upon Oxley; it was not required to
prove that Yost knew he would cause serious bodily injury. Id.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 9 of 17 [18] The only question, then, is whether there is sufficient evidence that the injury
Yost inflicted caused serious bodily injury, i.e., “‘a protracted loss or
impairment of the function of a bodily member or organ.’” Id. (quoting Mann v.
State, 895 N.E.2d 119, 124 (Ind. Ct. App. 2008). The State presented sufficient
evidence that the punches and/or kicks Yost inflicted on Oxley caused the
cerebral hemorrhage that resulted in brain swelling and Oxley’s death. Both the
autopsy completed by Dr. Kim and the testimony of Dr. Feczko provide
sufficient support for that conclusion. Yost’s contentions to the contrary are
merely requests that we reweigh the evidence and judge witness credibility,
which we cannot do. Clemons, 996 N.E.2d at 1285.
[19] Yost contends that, because the jury found him not guilty of involuntary
manslaughter, that means “the jury determined that Yost’s battery did not result
in the brain swelling that produced Oxley’s unfortunate death.” Appellant’s Br.
at 19. Essentially, Yost argues that his battery conviction cannot stand because
it is inconsistent with the not guilty verdict on involuntary manslaughter.
However, as our Supreme Court has noted, when a jury returns logically
inconsistent verdicts, it is
likely that the jury chose to exercise lenity, refusing to find the defendant guilty of one or more additionally charged offenses, even if such charges were adequately proven by the evidence. Such right of a criminal jury to decline to convict is well recognized.
Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010) (citations omitted). Thus,
“[j]ury verdicts in criminal cases are not subject to appellate review on grounds Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 10 of 17 that they are inconsistent, contradictory, or irreconcilable.” Id.; see also Baber v.
State, 870 N.E.2d 486, 490 (Ind. Ct. App. 2007) (citation omitted) (“A jury
verdict may be inconsistent [with other verdicts] or even illogical but
nevertheless permissible if it is supported by sufficient evidence.”), trans. denied.
[20] There was sufficient evidence to support Yost’s conviction.5
Jury Instruction [21] Yost challenges the trial court’s denial of his request to include the “reasonable
theory of innocence” language in the jury instructions.
Because instructing the jury is a matter within the sound discretion of the trial court, we will reverse a trial court’s decision to tender or reject a jury instruction only if there is an abuse of that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind. 2013). We determine whether the instruction states the law correctly, whether it is supported by record evidence, and whether its substance is covered by other instructions. Id. at 345– 46. “Jury instructions are to be considered as a whole and in reference to each other; error in a particular instruction will not result in reversal unless the entire jury charge misleads the jury as to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344 (Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196 (Ind. 1996)).
Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).
5 Because the trial court vacated Yost’s Count II conviction of battery resulting in serious bodily injury and we find sufficient evidence of the aggravated battery conviction, we do not address the sufficiency of the evidence of Count II.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 11 of 17 [22] The “reasonable theory of innocence” instruction must be given to the jury only
when the evidence of the actus reus is wholly circumstantial. Hawkins v. State,
100 N.E.3d 313, 316 (Ind. Ct. App. 2018) (citing Hampton v. State, 961 N.E.2d
480 (Ind. 2012)). The actus reus is the conduct required for the commission of
the crime. Hampton, 961 N.E.2d at 491; see also Hawkins, 100 N.E.3d at 317 n.3
(“Actus reus is ‘[t]he wrongful deed that comprises the physical components of a
crime and that generally must be coupled with mens rea to establish criminal
liability.’ Black’s Law Dictionary 44 (10th ed. 2014)”). Here, the actus reus was
the act of Yost hitting and kicking Oxley, and there was direct evidence 6 of
those actions in the form of Yost’s admissions, the testimony of eyewitnesses,
and the footage from the surveillance cameras. Thus, Yost is mistaken when he
claims the actus reus was proven solely with circumstantial evidence. The trial
court did not abuse its discretion when it denied Yost’s request for the
reasonable theory of innocence jury instruction.
Abuse of Discretion in Sentencing [23] Yost maintains that the trial court erred in sentencing him. Sentencing
decisions lie within the sound discretion of the trial court. Cardwell v. State, 895
6 In Hawkins v. State, we explained:
[D]irect evidence is “[e]vidence that is based on personal knowledge or observation and that, if true, proves a fact without inference or presumption.” Black’s Law Dictionary 675 (10th ed. 2014). Circumstantial evidence, on the other hand, is “[e]vidence based on inference and not on personal knowledge or observation.” 100 N.E.3d at 317 (citing Hampton 961 N.E.2d at 674).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 12 of 17 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion occurs if the decision is
“clearly against the logic and effect of the facts and circumstances before the
court, or the reasonable, probable, and actual deductions to be drawn
therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct. App. 2014) (citation
omitted), trans. denied. A trial court abuses its discretion in sentencing if it does
any of the following:
(1) fails “to enter a sentencing statement at all;” (2) enters “a sentencing statement that explains reasons for imposing a sentence—including a finding of aggravating and mitigating factors if any[ ]—but the record does not support the reasons;” (3) enters a sentencing statement that “omits reasons that are clearly supported by the record and advanced for consideration;” or (4) considers reasons that “are improper as a matter of law.”
Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind. 2007), clarified on
reh’g, 875 N.E.2d 218 (Ind. 2007)).
[24] So long as a sentence is within the statutory range, the trial court may impose it
without regard to the existence of aggravating or mitigating factors. Anglemyer,
868 N.E.2d at 489. However, if the trial court does find the existence of
aggravating or mitigating factors, it must give a statement of its reasons for
selecting the sentence it imposes. Id. at 490. But the relative weight or value
assignable to reasons properly found, or those which should have been found, is
not subject to review for abuse of discretion. Gross, 22 N.E.3d at 869.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 13 of 17 [25] Yost contends that the trial court abused its discretion when it imposed the
advisory sentence7 even though it specifically found that the mitigating
circumstances outweighed the aggravating circumstances. However, I.C. § 35-
38-1-7.1(d) allows the imposition of any sentence that does not exceed statutory
or constitutional limits, “regardless of the presence or absence of aggravating
circumstances or mitigating circumstances,” and the relative weight the trial
court gives to those circumstances is not reviewable. Gross, 22 N.E.3d at 869.
Moreover, the trial court specifically noted that it imposed the advisory
sentence, despite the mitigating circumstances, because the crime resulted in a
death. Tr. Vol. VIII at 99. Death of the victim as an aggravator was a
permissible consideration. See Paul v. State, 888 N.E.2d 818, 823 (Ind. Ct. App.
2008) (“‘Death’ is not a necessary element of the offense of aggravated battery
as a class B felony [and] it is a valid aggravating factor.”), trans. denied; see also
I.C. § 35-38-1-7.1(a)(1) (providing that the fact that the “harm, injury, loss, or
damage suffered by the victim was significant, and greater than the elements
necessary to prove the commission of the offense” is a statutory aggravating
factor).
7 We note Yost was given the advisory sentence of ten years, but four of those years were suspended to community corrections. Thus, Yost is serving only six years in prison, and we note that six years is the minimum sentence for a Class B felony. I.C. § 35-50-2-5 (2014).
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 14 of 17 [26] The trial court did not abuse its discretion when it imposed the advisory
sentence for aggravated battery, with four years of the sentence suspended to
community corrections.
Appellate Rule 7(B) [27] Even when a trial court has not abused its discretion in sentencing, Article 7,
Sections 4 and 6, of the Indiana Constitution authorize independent appellate
review and revision of a trial court’s sentencing order. E.g., Livingston v. State,
113 N.E.3d 611, 613 (Ind. 2018). This appellate authority is implemented
through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule
7(B) requires the appellant to demonstrate that his sentence is inappropriate in
light of the nature of his offenses and his character. See Ind. Appellate Rule
7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess
the trial court’s recognition or non-recognition of aggravators and mitigators as
an initial guide to determining whether the sentence imposed was
inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).
However, “a defendant must persuade the appellate court that his or her
sentence has met th[e] inappropriateness standard of review.” Roush, 875
N.E.2d at 812 (alteration original). And the defendant “bears a particularly
heavy burden in persuading us that his sentence is inappropriate when the trial
court imposes the advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089
(Ind. Ct. App. 2011), trans. denied.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 15 of 17 [28] Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate
sentence to the circumstances presented, and the trial court’s judgment “should
receive considerable deference.” Cardwell, 895 N.E.2d at 1224. The principal
role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.
Whether we regard a sentence as inappropriate at the end of the day 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. at 1224. The question is not whether another sentence is more
appropriate, but rather whether the sentence imposed is inappropriate. King v.
State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008). Deference to the trial court
“prevail[s] unless overcome by compelling evidence portraying in a positive
light the nature of the offense (such as accompanied by restraint, regard, and
lack of brutality) and the defendant’s character (such as substantial virtuous
traits or persistent examples of good character).” Stephenson v. State, 29 N.E.3d
111, 122 (Ind. 2015).
[29] We agree with Yost that there is evidence that his actions in committing the
offense were no more egregious than necessary to establish the elements of the
offense; however, we cannot overlook the fact that the resulting harm was a
death. Cardwell, 895 N.E.2d at 1224. We also agree that there was ample
evidence of Yost’s good character—specifically, the mitigating circumstances
the trial court discussed. But Yost was only given the advisory sentence for
aggravated battery, and the advisory sentence “is the starting point the
Legislature selected as appropriate for the crime committed.” Fuller v. State, 9
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 16 of 17 N.E.3d 653, 657 (Ind. 2014). Moreover, “[a]side from revising the length of a
sentence, the place where a sentence is to be served is also an appropriate focus
for our review under 7(B).” Livingston, 113 N.E.3d at 613; see also Serban v.
State, 959 N.E.2d 390, 393 (Ind. Ct. App. 2012) (noting that, in reviewing a
sentence, we consider the “full sentence, taking into consideration that a
portion of it was suspended.”). The trial court only sentenced Yost to six years
in the Department of Correction, with the remaining four years suspended to
community corrections. We cannot say that the advisory sentence—only a
portion of which is to be served in prison—is inappropriate. See id.
Conclusion [30] The State provided sufficient evidence to support Yost’s conviction of
aggravated battery. And the trial court did not abuse its discretion when it
denied Yost’s requested jury instruction regarding a reasonable theory of
innocence or when it imposed the advisory sentence for aggravated battery.
Finally, we cannot say that Yost’s sentence is inappropriate.
[31] Affirmed.
Riley, J., and Pyle, J., concur.
Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019 Page 17 of 17