MEMORANDUM DECISION Pursuant to Ind. Appellate Rule 65(D), FILED this Memorandum Decision shall not be regarded as precedent or cited before any Sep 30 2019, 10:31 am
court except for the purpose of establishing CLERK Indiana Supreme Court the defense of res judicata, collateral Court of Appeals and Tax Court estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE Bruce W. Graham Curtis T. Hill, Jr. Graham Law Firm P.C. Attorney General of Indiana Lafayette, Indiana Angela N. Sanchez Assistant Section Chief, Criminal Appeals Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Gabriel E. Hallman, September 30, 2019 Appellant-Defendant, Court of Appeals Case No. 19A-CR-426 v. Appeal from the Tippecanoe Superior Court State of Indiana, The Honorable Randy J. Williams, Appellee-Plaintiff. Judge Trial Court Cause No. 79D01-1702-F1-2
Najam, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 1 of 19 Statement of the Case [1] Gabriel Hallman appeals his conviction and sentence for neglect of a
dependent, as a Level 1 felony, following a jury trial. Hallman presents the
following issues for our review:
1. Whether the trial court abused its discretion when it admitted into evidence testimony that Hallman had previously threatened to kill his stepson Z.H.
2. Whether the trial court committed fundamental error during the State’s closing argument.
3. Whether the State presented sufficient evidence to support his conviction.
4. Whether the trial court abused its discretion when it sentenced him.
5. Whether his sentence is inappropriate in light of the nature of the offense and his character.
[2] We affirm.
Facts and Procedural History [3] In 2012, Hallman married Tiphani Jennings. In April 2015, Jennings gave birth
to a son, Z.H., but Hallman was not Z.H.’s biological father. In October 2015,
Hallman, Jennings, and Z.H. moved into an apartment with Dominic Fultz
and Krystin Johnson in Lafayette. At some point, Hallman became
unemployed, so he took care of Z.H. when Jennings was at work. On one
occasion in late Summer or early Fall of 2015, Hallman called Jennings’ mother
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 2 of 19 and asked her to watch Z.H. She refused, but Hallman brought Z.H. to her
house and told her, “if you don’t watch him, fine, I’ll fucking kill him.” Tr.
Vol. 2 at 91.
[4] On October 21, Jennings went to work and left Z.H. in Hallman’s care. At
around 3:00 a.m. the next morning, Hallman left Z.H. in his crib and went to
pick up Jennings from work. When Hallman left, Johnson was asleep in a
room across the hall from Z.H. When Jennings got home, she checked on Z.H.
and observed that he had a “dead stare,” and Z.H. had defecated “three times
everywhere all over” their bed. Id. at 65. Against Hallman’s wishes, Jennings
insisted that they take Z.H. to a local emergency room. There, Z.H. was
diagnosed as being constipated and dehydrated and as having a possible
respiratory infection. Upon his discharge from the emergency room at
approximately 8:00 a.m., Z.H. was not having difficulty breathing.
[5] Later that morning, at approximately 10:15 a.m., Jennings left the apartment,
and she left Z.H. with Hallman in the living room. Fultz was asleep upstairs.
Only a few minutes after Jennings left, Z.H. “went limp,” and Hallman called
9-1-1. Id. at 122. Hallman performed C.P.R. on Z.H., and when emergency
medical personnel arrived, Z.H. was not breathing and had no pulse. En route
to a local hospital, Z.H. regained a pulse, but he still had no heartbeat and was
not breathing. Z.H. was transported by helicopter to Peyton Manning
Children’s Hospital in Indianapolis. Once there, Z.H.’s pupils were fixed and
dilated, which was indicative of trauma to his head. Z.H. was removed from
life support two days later and died. A forensic pathologist subsequently
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 3 of 19 determined that Z.H. died as a result of blunt force trauma to the head caused
by a “direct blow injury.” Id. at 244. And the pathologist concluded that
Z.H.’s death was a homicide.
[6] The State charged Hallman with two counts of neglect of a dependent, one as a
Level 1 felony and one as a Level 3 felony; and three counts of battery, one as a
Level 2 felony, one as a Level 3 felony, and one as a Level 5 felony. A jury
found Hallman guilty as charged, but the trial court entered judgment of
conviction only on one count of neglect of a dependent, as a Level 1 felony.
The court sentenced Hallman to thirty-nine years executed. This appeal
ensued.
Discussion and Decision Issue One: Prior Threat to Kill Z.H.
[7] Hallman first contends that the trial court abused its discretion when it admitted
Jennings’ mother’s testimony that Hallman had threatened to kill Z.H.
approximately four or five weeks before Z.H.’s death. Hallman concedes that
that testimony “might have [had] some minimal evidentiary value to
demonstrate motive or relationship of the parties,” but he insists that “its
prejudicial effect greatly outweighs any evidentiary value.” Appellant’s Br. at
21. We cannot agree.
[8] As our Supreme Court has explained:
Generally, a trial court’s ruling on the admission of evidence is accorded a great deal of deference on appeal. Because the trial
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 4 of 19 court is best able to weigh the evidence and assess witness credibility, we review its rulings on admissibility for abuse of discretion and only reverse if a ruling is clearly against the logic and effect of the facts and circumstances and the error affects a party’s substantial rights.
Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (citations and quotation marks
omitted).
[9] Indiana Evidence Rule 404(b) generally prohibits “[e]vidence of a crime,
wrong, or other act . . . to prove a person’s character in order to show that on a
particular occasion the person acted in accordance with the character.” But
such evidence “may be admissible for another purpose, such as proving motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,
or lack of accident.” Id.
Evidence Rule 404(b) is designed to prevent the jury from making the “forbidden inference” that prior wrongful conduct suggests present guilt. Halliburton v. State, 1 N.E.3d 670, 681 (Ind. 2013) (citing Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind. 1999)). Or, as stated in Bassett v. State, 795 N.E.2d 1050, 1053 (Ind. 2003), the purpose behind Evidence Rule 404(b) is to “prevent[ ] the State from punishing people for their character, and evidence of extrinsic offenses poses the danger that the jury will convict the defendant because . . . he has a tendency to commit other crimes.” (Internal quotation omitted). In assessing the admissibility of evidence under Evidence Rule 404(b), the trial court must first determine that the evidence of other crimes, wrongs, or acts is relevant to a matter at issue other than the defendant’s propensity to commit the charged act, and then balance the probative value of the evidence against its prejudicial effect pursuant to Evidence Rule 403. Halliburton, 1 N.E.3d at
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 5 of 19 681-82 (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)). The effect of Rule 404(b) is that evidence is excluded only when it is introduced to prove the forbidden inference of demonstrating the defendant’s propensity to commit the charged crime. Rogers v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied.
Laird v. State, 103 N.E.3d 1171, 1177 (Ind. Ct. App. 2018), trans. denied.
[10] Here, the State contends that the challenged evidence was not admitted to show
Hallman’s propensity to commit attempted murder; rather, it was admitted to
show Hallman’s motive, his state of mind, and his relationship with Z.H. See
id.; Evid. R. 404(b). Evidence of motive is always relevant in the proof of a
crime. Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996). A defendant’s prior bad
acts are also usually admissible to show the relationship between the defendant
and the victim. Id.
[11] As the State correctly points out, our Supreme Court has twice held that a
defendant’s threat to kill his victim months before a murder was admissible
under Trial Rules 403 and 404(b). In Ross, the defendant had threatened to kill
his ex-wife two months before he murdered her. The trial court permitted that
evidence at Ross’ trial, and, on appeal, the Court held that “[t]he trial court
clearly acted within the bounds of its discretion in admitting th[at] evidence.”
676 N.E.2d at 346. And in Berry v. State, the trial court admitted into evidence
testimony that the defendant had threatened to kill his parents six months
before he murdered them. 704 N.E.2d 462, 464 (Ind. 1998). On appeal, the
Court observed that the defendant’s prior threat “was presented as part of more
general testimony about the relationship between the defendant and the rest of Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 6 of 19 his family,” and the Court held that the trial court did not abuse its discretion
when it admitted the evidence. Id.
[12] Here, the State presented testimony that Hallman frequently complained about
having to care for Z.H. Hallman also complained to Jennings that Z.H. cried
too much. On one occasion, Hallman “didn’t want to watch” Z.H. and
dropped him off with Jennings at her place of employment. Tr. Vol. 2 at 62. In
addition, Jennings testified that she and Hallman sometimes argued about the
fact that Hallman was not Z.H.’s biological father. In the context of this
general testimony, Jennings’ mother’s testimony that Hallman had threatened
to kill Z.H. when she refused to take over the care of Z.H. for Hallman
approximately four to five weeks before Z.H.’s death was relevant to show
Hallman’s relationship with Z.H. and his motive in committing neglect of a
dependent. And we hold that the probative value of that evidence outweighed
any prejudice to Hallman. See Laird, 103 N.E.3d at 1177; see also Snow v. State,
77 N.E.3d 173, 177 (Ind. 2017) (stating trial court has “wide discretion” in
making Rule 403 determination). Thus, the trial court did not abuse its
discretion when it admitted the challenged evidence.
Issue Two: Fundamental Error
[13] Hallman next contends that the trial court committed fundamental error during
the State’s closing argument at trial. The prosecutor stated in relevant part as
follows:
That’s why Dr. Cavanaugh’s manner of death conclusion was homicide. Not undetermined, not accident, it was homicide Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 7 of 19 because something had to have been done to him in order to inflict such an injury. We also know this because if it was an accident that happened while the baby was in the defendant’s care, the defendant never provided a reasonable explanation for what did happen. He . . . had an opportunity, he talked to Detective Pinkard, Detective Pinkard even asked him after he came up with the examples of the softball three or four weeks prior which we know unequivocally could not have caused the injury. Detective Pinkard asked, asked him, was there anything, any accident that happened after the girls left that morning that could have caused this? No.
Tr. Vol. 3 at 23-24 (emphasis added). Hallman maintains that the prosecutor’s
reference to Hallman’s failure to provide a reasonable explanation for what
happened to Z.H. was an improper reference to Hallman’s failure to testify,
which constituted prosecutorial misconduct. Because Hallman did not object to
the remark, he alleges fundamental error on appeal.
[14] As our Supreme Court has explained,
[i]n reviewing a claim of prosecutorial misconduct properly raised in the trial court, we determine (1) whether misconduct occurred, and if so, (2) “whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected” otherwise. A prosecutor has the duty to present a persuasive final argument and thus placing a defendant in grave peril, by itself, is not misconduct. “Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct. The gravity of peril is measured by the probable persuasive effect of the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.” To preserve a claim of prosecutorial misconduct, the defendant must—at the time the alleged misconduct occurs—request an Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 8 of 19 admonishment to the jury, and if further relief is desired, move for a mistrial.
Our standard of review is different where a claim of prosecutorial misconduct has been procedurally defaulted for failure to properly raise the claim in the trial court, that is, waived for failure to preserve the claim of error. The defendant must establish not only the grounds for prosecutorial misconduct but must also establish that the prosecutorial misconduct constituted fundamental error. 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.
We stress that “[a] finding of fundamental error essentially means that the trial judge erred . . . by not acting when he or she should have. . . .” Fundamental error is meant to permit appellate courts a means to correct the most egregious and blatant trial errors that otherwise would have been procedurally barred, not to provide a second bite at the apple for defense Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 9 of 19 counsel who ignorantly, carelessly, or strategically fail to preserve an error.
Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (emphasis added, citations and
footnotes omitted).
[15] Here, Hallman makes thorough and cogent argument on the question of
prosecutorial misconduct, but his argument on the question of fundamental
error is woefully inadequate, and he has waived this issue for our review. After
citing Ryan for the principle that fundamental error is a “narrow exception to
the waiver rule” and requires him to show that “the error is so prejudicial to the
defendant’s rights as to make a fair trial impossible,” Hallman’s entire argument
consists of the following: “It seems to this author that requiring Hallman to
prove that he was not guilty by providing evidence that the incident was an
accident—constitutes prejudicial error. Hallman was not entitled to a perfect
trial, but he was entitled to a fair one.” Appellant’s Br. at 19. Because Hallman
has not made cogent argument in support of his fundamental error claim, it is
waived.
[16] Waiver notwithstanding, taken in context, the prosecutor’s reference to
Hallman’s failure to provide a reasonable explanation for Z.H.’s injuries to law
enforcement and others during the investigation was not an improper reference
to Hallman’s failure to testify at trial. And, even if it were, the remark could
not be characterized as so blatantly improper as to “present an undeniable and
substantial potential for harm” to Hallman such that the trial court should have
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 10 of 19 sua sponte ruled that the prosecutor had committed misconduct. Ryan, 9 N.E.3d
at 668.
Issue Three: Sufficiency of the Evidence
[17] Hallman next contends that the State presented insufficient evidence to support
his conviction. When reviewing a claim of insufficient evidence to sustain a
conviction, we consider only the probative evidence and reasonable inferences
supporting the verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014).
“It is the fact-finder’s role, not that of appellate courts, to assess witness credibility and weigh the evidence to determine whether it is sufficient to support a conviction. Appellate courts 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. [T]he evidence is sufficient if an inference may reasonably be drawn from it to support the verdict.”
Id. (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).
[18] To prove neglect of a dependent, as a Level 1 felony, the State was required to
show that Hallman had the care of Z.H., who was a dependent under the age of
fourteen, and he knowingly or intentionally placed Z.H. in a position that
endangered Z.H.’s life or health and which resulted in Z.H.’s death. Ind. Code
§ 35-46-1-4 (2015). On appeal, Hallman challenges the sufficiency of the
evidence to prove either that he placed Z.H. in a situation that endangered his
life or health or that he was the person who neglected Z.H. We address each
contention in turn. Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 11 of 19 Endangerment
[19] Hallman asserts that “the Neglect of a Dependent statute does not apply to this
instant fact situation as there is simply no evidence to demonstrate that
Hallman placed [Z.H.] in a situation that endangered [Z.H.’s] life or health.”
Appellant’s Br. at 23. He maintains that the statute “does not envision
intentional acts including battery.” Id. at 24. In essence, Hallman contends
that, while the evidence might support his commission of a battery against
Z.H., it does not support his placement of Z.H. in a situation that endangered
him. We cannot agree.
[20] This court rejected the same argument made by the appellant in Eastman v.
State, 611 N.E.2d 139, 140 (Ind. Ct. App. 1993). In Eastman, as here, the
defendant was caring for her infant when he was found to be “limp, gray,
having difficulty breathing and his eyes were fixed.” Id. When Eastman
appealed her conviction for neglect of a dependent, she argued that, “while she
might have been charged with battery concerning [the infant], neglect was an
inappropriate charge and one not sustained by the evidence.” Id. We rejected
that claim and held as follows:
Clearly, Eastman had the care of her dependent, Dennis, and the boy suffered serious bodily injury. There is a reasonable inference from the evidence that Eastman knowingly or intentionally inflicted the injury to the boy’s skull. In doing so she placed him in a situation that endangered his life or health. That is what the statute proscribes.
Id. at 141.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 12 of 19 [21] Likewise, here, Hallman had the care of his dependent, Z.H., and Z.H. suffered
serious bodily injury that led to his death. There is a reasonable inference from
the evidence that Hallman knowingly or intentionally inflicted the injury to the
boy’s skull. In so doing, he placed him in a situation that endangered his life or
health, and the evidence is sufficient to prove that element of the offense. See id.
Identity
[22] Hallman asserts that, while the evidence “may have demonstrated the
opportunity for Hallman to commit the act—and while the circumstances under
which it occurred may have been suspicious[,]” the State presented insufficient
evidence to prove that he was the person who injured Z.H. and caused his
death. Appellant’s Br. at 26 (emphases original). But Hallman merely asks that
we reweigh the evidence, which we will not do.
[23] The State presented evidence that someone inflicted a blow to Z.H.’s head that
caused him to stop breathing, and the State presented expert testimony that the
onset of Z.H.’s symptoms after the blow would have been “very quick.” Tr.
Vol. 2 at 53. Jennings testified that, at approximately 10:15 a.m. on October
22, 2015, she left Z.H. in Hallman’s care in their living room while Foltz was
sleeping upstairs. Only seven minutes later, Hallman called 9-1-1 to report that
Z.H. had stopped breathing. We hold that the State presented sufficient
evidence to prove that Hallman was the person who inflicted the fatal blow to
Z.H.’s head.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 13 of 19 Issue Four: Abuse of Discretion in Sentencing
[24] Hallman contends that the trial court abused its discretion when it sentenced
him. Sentencing decisions lie within the sound discretion of the trial court.
Cardwell v. State, 895 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.
[25] 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.), clarified on reh’g
other grounds, 875 N.E.2d 218 (Ind. 2007)).
[26] The sentencing range for a Level 1 felony is twenty years to forty years, with an
advisory sentence of thirty years. I.C. § 35-50-2-4. Here, at sentencing, the trial
court identified the following aggravating factors: Hallman’s criminal history;
his history of substance abuse; the “tender age of the victim”; the likelihood that
he would reoffend; and previous attempts at rehabilitation have failed. Tr. Vol.
3 at 92. And the trial court identified two mitigating factors: Hallman’s
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 14 of 19 employment history and family support. The trial court sentenced Hallman to
thirty-nine years executed.
[27] Hallman asserts that the trial court abused its discretion when it considered
“hearsay evidence of prior acts of violence” Hallman had allegedly committed
against children. Appellant’s Br. at 29. First, as the State points out, Hallman
did not object to the alleged hearsay at sentencing, and he has waived the issue
for our review. Second, while the trial court addressed certain exhibits
submitted by the State regarding such evidence during the sentencing hearing,
the court did not rely on any of that proffered evidence in either its oral or
written sentencing order. Accordingly, “we conclude that any alleged error in
admitting such evidence did not affect the sentence imposed.” Prowell v. State,
687 N.E.2d 563, 565 (Ind. 1997) (citing Indiana Trial Rule 61: “We ‘must
disregard any error or defect in the proceeding which does not affect the
substantial rights of the parties.’”).
[28] Hallman also asserts that the trial court abused its discretion when it identified
as aggravating Z.H.’s “tender age” because Z.H.’s age was an element of the
offense. Appellant’s Br. at 31. However, as the State points out, the trial court
was entitled to consider Z.H.’s “tender age” of six months given that the age
element of the offense requires only that the victim be younger than fourteen
years old. As our Supreme Court has observed, “[t]he younger the victim, the
more culpable the defendant’s conduct.” Hamilton v. State, 955 N.E.2d 723,
727 (Ind. 2011). We hold that the trial court did not abuse its discretion when it
sentenced Hallman.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 15 of 19 Issue Five: Inappropriateness of Sentence
[29] Finally, Hallman asserts that his thirty-nine-year executed sentence is
inappropriate in light of the nature of the offense and his character. Indiana
Appellate Rule 7(B) provides that “[t]he 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.” This Court has held that “[t]he advisory
sentence is the starting point the legislature has selected as an appropriate
sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind.
Ct. App. 2017). And the Indiana Supreme Court has explained that:
The principal role of appellate review should be to attempt to leaven the outliers . . . but not achieve a perceived “correct” result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Defendant has the burden to persuade us that the sentence imposed by the trial court is inappropriate. [Anglemyer, 868 N.E.2d at 494].
Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).
[30] 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 1222. 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 facts that come to light in a given case.” Id. at 1224.
The question is not whether another sentence is more appropriate, but rather
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 16 of 19 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).
[31] Hallman contends that “there is nothing aggravating about the [nature of] the
offense. The severity of the crime is built into the sentencing structure.”
Appellant’s Br. at 32. We cannot agree. Hallman inflicted a blow to the head
of his six-month-old stepson causing his death, which is particularly heinous
given the vulnerability of the infant and the fact that Z.H. depended on
Hallman to care for him. We cannot say that Hallman’s sentence is
inappropriate in light of the nature of the offense.
[32] Hallman contends that his sentence is inappropriate in light of his character
because, while he has a criminal history, “he does not fall into the worst class of
offenses or offenders.” Id. at 33. As we have observed,
[a]lthough the maximum possible sentences are generally most appropriate for the worst offenders, this rule is not an invitation to determine whether a worse offender could be imagined, as it is always possible to identify or hypothesize a significantly more despicable scenario, regardless of the nature of any particular offense and offender.
Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). By stating that
maximum sentences are ordinarily appropriate for the “worst offenders,” we Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 17 of 19 refer generally to the class of offenses and offenders that warrant the maximum
punishment, which encompasses a considerable variety of offenses and
offenders. Id. Accordingly, “[w]e concentrate less on comparing the facts of
this case to others, whether real or hypothetical, and more on focusing on the
nature, extent, and depravity of the offense for which the defendant is being
sentenced, and what it reveals about the defendant’s character.” Wells v. State,
904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied.
[33] We reject Hallman’s suggestion that his sentence, which is one year less than
the maximum sentence, is inappropriate because his character compares
favorably to other, worse offenders. Hallman’s criminal history includes one
felony conviction for theft and three misdemeanor convictions, including
battery against Jennings in 2013. Further, while incarcerated awaiting trial in
this case, Hallman fought with a fellow inmate; he clogged a toilet and flooded
the jail by placing his jumpsuit and a sheet down the toilet; and he exposed his
penis to an officer. Hallman has not presented compelling evidence of
“substantial virtuous traits or persistent examples of good character,” and we
cannot say that his sentence is inappropriate in light of his character. See
Stephenson, 29 N.E.3d at 122.
[34] Hallman also asserts that his sentence is inappropriate in light of his character
because “the court relied heavily on inadmissible double and triple hearsay”
evidence regarding “prior crimes which were never charged.” However, again,
the trial court did not rely on hearsay evidence in imposing sentence. We
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 18 of 19 cannot say that Hallman’s sentence is inappropriate in light of the nature of the
offense and his character.
[35] Affirmed.
Bailey, J., and May, J., concur.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019 Page 19 of 19