FILED Apr 28 2023, 9:25 am
CLERK Indiana Supreme Court Court of Appeals and Tax Court
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE William W. Gooden Theodore E. Rokita Mt. Vernon, Indiana Attorney General of Indiana Courtney Staton Deputy Attorney General Indianapolis, Indiana
IN THE COURT OF APPEALS OF INDIANA
Peggy Sue Higginson, April 28, 2023 Appellant-Defendant, Court of Appeals Case No. 22A-CR-2634 v. Appeal from the Posey Circuit Court State of Indiana, The Honorable Craig S. Goedde, Appellee-Plaintiff. Judge Trial Court Cause No. 65C01-1806-MR-293
Opinion by Judge Riley. Chief Judge Altice and Judge Pyle concur.
Riley, Judge.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 1 of 26 STATEMENT OF THE CASE [1] Appellant-Defendant, Peggy Sue Higginson (Higginson), appeals her sentence
after pleading guilty to voluntary manslaughter, a Level 2 felony, Ind. Code §
35-42-1-3.
[2] We affirm.
ISSUES [3] Higginson presents a single issue on appeal, which we restate as the following
two issues:
(1) Whether the trial court abused its discretion at sentencing; and
(2) Whether her sentence is appropriate in light of the nature of the offense
and her character.
FACTS AND PROCEDURAL HISTORY [4] Higginson and Troy Higginson (Troy) got married in May 2011. On October
23, 2013, Troy called 911, claiming that Higginson “had gone crazy and
attacked him with a whiskey bottle and that he was bleeding.” (Appellant’s
App. Conf. Vol. II, p. 77) (internal quotation marks omitted). The State
charged Higginson with Class A misdemeanor domestic battery the next day.
As part of a pretrial diversion agreement, Higginson agreed to attend anger
management and all recommended services, which she successfully completed.
Accordingly, on April 28, 2014, the charge against Higginson was dismissed.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 2 of 26 [5] On March 13, 2018, at about 4:09 p.m., Posey County Sheriff’s Department
(PCSD) was dispatched to the Higginson’s residence at 1000 Wade Road,
Wadesville, Indiana. Troy, who had called 911, reported that Higginson had
“lost it” and torn “everything up in the residence.” (Appellant’s App. Conf.
Vol. II, p. 101). Troy claimed that Higginson had a history of violence.
(Appellant’s App. Conf. Vol. II, p. 101). At approximately 4:11 p.m., an officer
from Mount Vernon Police Department arrived at the residence and detained
Higginson. PCSD arrived shortly thereafter. Troy informed PCSD that he was
afraid Higginson would attack him and that she was “unstable and he was not
sure what she might do[.]” (Appellant’s App. Conf. Vol. II, p. 101). PCSD
advised Troy to go somewhere else for the night and to file a protective order
the next day. PCSD also informed Troy that there was nothing they could do
since he and Higginson were married and that either one of them could destroy
anything in the house and face no criminal repercussions. Before the officers
left, Higginson assured them that she would stay in a separate bedroom from
Troy that evening and that there would be no further issues. Both were advised
to call 911 if things got out of hand. The next day, on March 14, 2018, Troy
petitioned for an order of protection and a request for a hearing in which Troy
claimed that he had been a victim of domestic violence. Troy claimed that
Higginson had destroyed their house on November 23, 2014, and March 13,
2018, and had hit him in the face with a liquor bottle in October 2013. The trial
court issued an ex parte order for protection on the same day. The ex parte order
expired, and neither Troy nor Higginson appeared for the hearing set by the
court. Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 3 of 26 [6] Troy filed for divorce on April 30, 2018, 1 and the final dissolution hearing was
scheduled for June 29, 2018. In that petition, Troy claimed that he had been
living separately from Higginson since April 28, 2016. Shortly after filing for
divorce, Troy filed another petition for an order of protection and a request for
a hearing, offering the same examples of abuse he offered in his prior petition.
Due to the parties’ impending divorce, Troy’s petition for an order of protection
was denied on May 2, 2018.
[7] About a month later, on June 20, 2018, at around 10:24 p.m., Indiana State
Trooper Zack Fulton (Trooper Fulton) and Deputy Jacob Melliff (Deputy
Melliff) of the PCSD were dispatched to the Higginson’s marital home due to
another domestic violence complaint. Higginson was identified as the
“aggressor in the altercation.” (Appellant’s App. Vol. II, p. 132). When asked
what had happened, Troy reported that Higginson had wanted to leave in his
expensive vehicle. When he refused, he offered to give her a ride to her
stepdaughter’s house in Evansville, which led to a verbal argument. Troy
denied hitting Higginson. Higginson reported that there was no physical
altercation, but Troy had attempted to take the vehicle keys out of her hands.
Deputy Melliff observed no injuries on Higginson’s exposed arms and hands,
and to avoid further issues in the night, Deputy Melliff offered Higginson a ride
to her stepdaughter’s house in Evansville. Later that evening, Higginson posted
1 The record shows that in July 2015, Troy filed for divorce, but the trial court dismissed the matter in March 2016 “due to lack of prosecution pursuant to Trial Rule 41(E).” (Appellant’s App. Vol. II, p. 163).
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 4 of 26 pictures of bruises on her arms and hands on Facebook alleging that Troy had
physically hurt her that night.
[8] The next day, on June 21, 2018, Higginson’s stepdaughter dropped Higginson
at Troy’s home. According to Higginson, she was there to do laundry. When
Troy arrived later that day, the two began arguing. Troy eventually locked
himself in the main bedroom while Higginson locked herself in a second
bedroom, and they communicated via text. Higginson issued provocative
statements, which included that she had been sleeping with other men during
their marriage and that she was searching for new partners such as “young fuck
buddies.” (Exh. Vol. II, p. 70). Troy requested that Higginson leave the
premises peacefully and “not to make this ugly.” (Exh. Vol. II, p. 66).
Higginson responded by referencing Troy’s statement of wanting to reconcile
and asking her to stay the previous night while Deputy Melliff and Trooper
Fulton were present. Although Higginson finally agreed to leave Troy’s home,
she demanded to leave on Troy’s motorcycle and asked for the keys. Troy
refused per his attorney’s instructions and stated that he would give her the keys
after their divorce finalized in the coming week. Troy, instead, offered to drive
Higginson to her stepdaughter’s house in Evansville. When the two got inside
Troy’s vehicle, they continued to argue. As they left Troy’s house, Higginson
texted her stepdaughter, “dickhead is bringing me home.” (Exh. Vol. II, p. 75).
The specifics of what occurred in the vehicle remain unclear, as Higginson
offered various versions; however, what is clear is that she fatally shot Troy in
the chest with her gun.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 5 of 26 [9] At approximately 9:31 p.m., Higginson contacted 911 and reported that she had
shot Troy. Before making the call, Higginson consumed “25 Seroquel pills” in
an attempt to alleviate her anxiety before the police arrived. (Appellant’s App.
Vol. II, p. 60). Soon after, Deputy Bryan Hicks (Deputy Hicks) of the PCSD
arrived at 1200 Wade Road, which was not too far from Troy’s home, to
investigate the incident. Deputy Hicks identified a black BMW, which he
confirmed belonged to Troy, and found Higginson seated on the side of the
road, while Troy was found unresponsive in the driver’s seat of the vehicle.
Troy died at the scene from a gunshot wound in the upper chest area. After
detaining Higginson and placing her in the police vehicle, Higginson explained
that her firearm was on the passenger side floorboard. When Deputy Hicks
attempted to question 2 Higginson about the shooting, Higginson appeared to be
under the influence of “narcotics given her manner of speech”, and she did not
offer any information at that point. (Appellant’s App. Vol. II, p. 60).
Higginson was transported to the hospital for an evaluation, and Deputy Melliff
accompanied Higginson in the ambulance. Although Deputy Melliff did not
observe any injuries on Higginson from the prior evening when he responded to
the domestic disturbance, he observed bruising on Higginson’s arms and thigh.
[10] Four days after the shooting, Deputy Fortune advised Higginson of her Miranda
rights during his visit to the hospital. Higginson stated that Troy was pulling
2 There is no indication in the record as to whether Higginson had received her Miranda warnings at this point, but she did not make any self-incriminating statements when questioned.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 6 of 26 her hair while they were driving on Wade Road, and she responded by
retrieving her .357 caliber revolver from her purse and placing it on top of the
purse. Higginson reported that when she asked Troy to stop pulling her hair, he
refused and asked, “what are you going to do about it?” (Appellant’s App. Vol.
II, p. 65). In response, Higginson shot Troy in the chest.
[11] After being discharged from the hospital, Higginson had a second interview
with Deputy Fortune, during which she was reminded of her Miranda rights.
During this conversation, Higginson stated that she asked Troy to stop pulling
her hair while driving on Wade Road, but he refused, called her a “bitch,” and
pushed her head toward the floorboard, knowing that would upset her.
(Appellant’s App. Vol. II, p. 65). Higginson added that she retrieved her
revolver from her purse and shot Troy before he could react. She also disclosed
to Deputy Fortune that she and Troy had experienced fewer than five physical
altercations but concealed them from the public to protect their car racing
business. However, Deputy Fortune confronted Higginson with a Facebook
post showing her injuries and another post written one hour before the shooting
in which she suggested that Troy needed “some good old-fashioned ass
whooping to knock some of the air out of his swollen ego[-]filled head.”
(Appellant’s App. Vol. II, p. 66).
[12] On June 25, 2018, the State filed an Information, charging Higginson with
murder, a felony. The State later filed its notice of intent to seek a sentencing
enhancement for Higginson’s use of a firearm while committing the offense.
On October 3, 2018, Higginson filed a notice of intent to raise a claim of self-
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 7 of 26 defense under Indiana Code section 35-41-3-11(b)(2) (effects-of-battery-statute)
through Dr. Polly Westcott’s (Dr. Westcott) testimony. The trial court granted
the State’s motion to exclude Dr. Westcott’s testimony and Higginson moved
to certify the trial court’s order for an interlocutory appeal. We accepted
jurisdiction and conducted an oral argument. We, however, reversed the trial
court’s order and determined that on remand, “Dr. Westcott may testify as to
the objective component of a person’s reasonable belief that they were under
threat of imminent harm, given their PTSD, but not [to Higginson’s] specific
subjective belief” that her PTSD, which resulted from domestic violence, led
her to use justifiable force. See Higginson v. State, 183 N.E.3d 340, 346 (Ind. Ct.
App. 2022).
[13] On August 23, 2022, Higginson entered into a plea agreement with the State in
which she agreed to plead guilty to Level 2 felony voluntary manslaughter, and
the State dismissed the murder and firearm sentence enhancement charges.
Sentencing was left open to the trial court. A guilty plea hearing was conducted
on the same day, and the trial court accepted Higginson’s plea. The trial court
then directed the preparation of a presentencing report (PSI) ahead of the
sentencing hearing.
[14] The PSI established that, along with the current charge, Higginson’s criminal
history includes a Class A misdemeanor battery charge committed in 2013 but
was dismissed in 2014 after her successful completion of a pretrial diversion
program. In her account of the events leading up to Troy’s death, Higginson
provided additional statements that she had not previously disclosed.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 8 of 26 Specifically, she informed the probation department that on the day she shot
and killed Troy, she had engaged in a physical altercation with him earlier. She
explained that Troy grabbed her hand and repeatedly slammed it on the
nightstand to obtain her key. Higginson also reported that when she argued
with Troy inside the BMW, she feared that he would take her gun and use it
against her since he was a skilled shooter. She explained that she accidentally
fired the weapon while holding it with her non-dominant hand. Furthermore,
Higginson claimed that the protective orders and ongoing divorce proceedings
initiated by Troy were part of his manipulative tactics to portray her as the
abuser. Ultimately, the probation department noted that Higginson’s version of
events during the interview significantly differed from what she had once told
law enforcement.
[15] During the sentencing hearing on October 6, 2022, Dr. Westcott testified that
based on her evaluation, she diagnosed Higginson with Post-Traumatic Stress
Disorder (PTSD). Although Higginson had experienced a number of traumatic
events throughout her life, including a molestation incident when she was five
years old, as well as physical, sexual, and verbal abuse during her previous
marriage, which had lasted for ten years, Dr. Westcott concluded that none of
those events directly contributed to her present PTSD symptoms. Instead,
Higginson’s PTSD symptoms arose “as a result of her marriage to Troy.” (Tr.
Vol. II, p. 26). Dr. Westcott explained that people diagnosed with PTSD are
susceptible to extreme reactions, including the use of deadly force, to seemingly
minor triggers that mimic past abuse.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 9 of 26 [16] Higginson then made a statement in allocution in which she expressed remorse
and requested forgiveness from Troy’s family. However, most of her statement
focused on the extensive physical and emotional abuse she had endured at the
hands of Troy. Higginson explained that Troy had been the main perpetrator of
domestic violence and a skilled manipulator who played the victim while
physically and emotionally abusing her. She also criticized Troy’s family and
society for failing to recognize the warning signs of domestic violence. Finally,
Higginson urged the trial court to recognize her as a victim and to treat her with
the same level of empathy and understanding as it would for Troy.
[17] Ahead of the sentencing hearing, each party submitted a memorandum on
sentencing. Higginson’s memorandum focused on presenting at least ten
mitigating factors, while the State’s memorandum focused on the aggravating
factors. The State’s memorandum also included several exhibits, including Dr.
Gregory Hale’s (Dr. Hale) evaluation of Dr. Westcott’s assessment of
Higginson’s PTSD diagnosis. Dr. Hale’s report exposed weaknesses in Dr.
Westcott’s assessment of Higginson. While he agreed with Dr. Westcott’s
diagnosis of PTSD, he raised some concerns about the evaluation process.
Specifically, Dr. Hale pointed out that Dr. Westcott’s report failed to mention
the mutually combative relationship between Troy and Higginson during their
marriage. He also criticized the report for relying too heavily on self-reported
information provided by Higginson when making the diagnosis. Dr. Hale’s
report further stated, in part, that:
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 10 of 26 The PTSD diagnosis does not explain Ms. Higginson’s actions nor is it an explanation for killing [Troy]. Individuals with PTSD are more a danger to themselves than others. Discomfort with their symptoms is usually something they want to avoid and is used as justification for suicide. Also, there is no discussion regarding other causal factors for the psychological condition identified by Ms. Higginson’s actions. Ms. Higginson has had exposure to multiple trauma events in her lifetime. Any of these events could be a casual factor for the symptoms attributed to PTSD. It is unreasonable to assume [Troy’s] violent behavior in the relationship with Ms. Higginson is the factor causing PTSD. That is not to say that the PTSD diagnosis is inaccurate, but that is not an explanation for Ms. Higginson shooting her husband.
I am concerned the context of this event is not being properly explored. That is, Mr. Higginson was shot one week prior to the dissolution of their marriage. A postnuptial agreement was filed on May 30, 2018, and signed by Ms. Higginson. Obviously, her life circumstances were going to change significantly once divorced. Thus, the reason for the June 2018 deadly encounter might not be related to a history of interpersonal violence but, rather, to external factors connected to the current circumstance.
Finally, another issue not addressed thus far is why Ms. Higginson would kill her soon to be ex-husband. In evaluating women involved in violent relationships, a critical precursor to killing the violent partner is a belief that the victim is in imminent danger. As I understand the sequence of events at the time of the shooting [Troy] was driving Ms. Higginson to his daughter’s home. Ms. Higginson had previously stayed with [her] [step]daughter the night before when law enforcement drove her from their [marital] home to his [step]daughter’s home. As told by Ms. Higginson, they were once again engaged in behavior common for them. Interesting to me, given her concern about Mr. Higginson behavior, Ms. Higginson went back to their house the next day to “do laundry.” It is highly unusual for a woman
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 11 of 26 who believes she is in imminent danger to return to a dangerous situation and risk an encounter with her abuser. This choice is contrary to the behavior of a woman experiencing the effect of [battered woman syndrome] and believes she is in imminent danger.
(Appellant’s App. Vol. II, pp. 184-85).
[18] After reviewing the evidence and arguments presented, the trial court analyzed
all thirteen mitigating circumstances outlined in Indiana Code section 35-38-1-
7.1. First, the trial court declined to find that the crime did not cause or
threaten serious harm to persons or property, as Troy died due to Higginson’s
actions. Secondly, the trial court rejected the argument that the crime resulted
from circumstances unlikely to recur, as it could not be sure that Higginson
would not react violently in the future given her criminal history and PTSD
diagnosis. The trial court also evaluated whether Troy had induced or
facilitated the offense and concluded that Higginson had caused it by putting
herself back in a highly charged environment after being safely removed. The
text messages between Higginson and Troy further supported this finding, as
they showed that Higginson instigated the altercation while Troy attempted to
diffuse the situation by asking her to leave peacefully. The trial court then
considered whether there were substantial grounds to excuse or justify the crime
and whether Higginson acted under strong provocation, and it found that
Higginson’s inconsistencies with law enforcement made it difficult to believe
her version of events or that her PTSD caused her to react as she did.
Regarding Higginson’s criminal history, the trial court rejected the argument
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 12 of 26 that she had no history of delinquent or criminal activity and instead found that
she had a history of criminal conduct involving Troy as the victim. The trial
court also declined to find that Higginson would respond affirmatively to
probation or short-term imprisonment, nor that her character and attitude
indicated she was unlikely to commit another crime. The trial court reasoned
that it could not definitively say that Higginson would not commit a similar
crime in the future. Additionally, the trial court rejected the argument that a
period of incarceration would pose an undue hardship on Higginson’s
dependents, stating that imprisonment inevitably involved some form of
hardship. The trial court then evaluated Higginson’s PTSD diagnosis, and it
ultimately found that the evidence presented did not support a conclusion that
Higginson’s PTSD caused her to respond with deadly force to Troy’s alleged
words, actions, or behaviors. Finally, the trial court considered whether to give
mitigating weight to Higginson’s plea agreement. The trial court determined
that Higginson had derived a substantial benefit from pleading guilty because
the State had agreed to dismiss the firearm sentence enhancement and allowed
her to plead to voluntary manslaughter, a lesser-included offense of murder.
[19] As for aggravating factors, the trial court found that the victim suffered
significant harm as he lost his life, Higginson’s criminal history, which included
the dismissed misdemeanor battery charge, the protective order that Troy had
obtained against Higginson, Higginson’s prior threats against Troy, and her
dishonest character depicted through the conflicting reports she provided to the
police and the probation department. After considering all the factors, the trial
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 13 of 26 court determined that the aggravating factors outweighed the mitigating factors.
The trial court found that a maximum sentence was appropriate and ordered
Higginson to serve thirty years in the Department of Correction.
[20] Higginson now appeals. Additional information will be provided as necessary.
DISCUSSION AND DECISION [21] Higginson asserts that her thirty-year sentence for her voluntary manslaughter
conviction is inappropriate in light of the nature of the offense and her
character. Although Higginson claims to challenge the appropriateness of her
sentence and her standard of review is limited on this basis, her argument on
appeal is entirely focused on whether the trial court abused its discretion at
sentencing. “As our Supreme Court has made clear, inappropriate sentence
and abuse of discretion claims are to be analyzed separately.” King v. State, 894
N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Anglemyer v. State, 868 N.E.2d 482,
491 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007)). Therefore, if a
defendant fails to develop an independent discussion to support an
inappropriate sentence claim, the defendant waives the issue for review. See
Allen v. State, 875 N.E.2d 783, 788 n. 8 (Ind. Ct. App. 2007). Waiver
notwithstanding, we will address the independent sentencing arguments
separately.
I. Abuse of Sentencing Discretion
[22] Sentencing decisions “rest within the sound discretion of the trial court and are
reviewed on appeal only for an abuse of discretion.” Anglemyer, 868 N.E.2d
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 14 of 26 490. 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. Id. When imposing a
sentence for a felony, a trial court must enter a sentencing statement including
reasonably detailed reasons for imposing a particular sentence. Id. at 491. A
trial court abuses its discretion when it fails to issue a sentencing statement,
gives reasons for imposing a sentence that are not supported by the record,
omits reasons clearly supported by the record and advanced for consideration,
or considers reasons that are improper as a matter of law. Id. at 490-91.
Because the trial court no longer has any obligation to weigh aggravating and
mitigating factors against each other when imposing a sentence, a trial court
cannot now be said to have abused its discretion in failing to properly weigh
such factors. Id.
A. Aggravating Factors
[23] Higginson contends that the trial court abused its discretion in crafting her
sentence by: (1) using an element of the charged offense as an aggravating
factor; (2) considering the facts surrounding the commission of the crime as an
aggravating factor; (3) improperly considering her criminal history based on a
dismissed charge; and (3) allocating too much weight to a certain aggravator. 3
3 Higginson argues that the trial court afforded too much weight in her attempt to conceal information regarding the shooting incident, we, however, need not address these argument as it was a proper aggravator, and it is not a cognizable claim on appeal. See Kingery v. State, 659 N.E.2d 490, 498 (Ind. 1995) (holding that
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 15 of 26 i. Element of the Charged Offense
[24] Higginson argues that the trial court improperly relied on an element of her
charged offense as an aggravating factor. As noted, Higginson pleaded guilty to
Level 2 felony voluntary manslaughter. Indiana Code section 35-42-1-1(1)
provides that a person who knowingly or intentionally kills another human
being commits murder. However, a person who knowingly or intentionally
kills another human being while acting under “sudden heat” commits voluntary
manslaughter. I.C. § 35-42-1-3(a). While “a trial court may not use a material
element of the offense as an aggravating circumstance, it may find the nature
and circumstances of the offense to be an aggravating circumstance.” Plummer
v. State, 851 N.E.2d 387, 391 (Ind. Ct. App. 2006); See also Ind. Code § 35-38-1-
7.1(a)(1) (permitting the trial court to consider the harm, injury or damage
suffered by the victim as an aggravating factor where it is significant and greater
than the elements of the offense). “[T]o enhance a sentence using the nature
and circumstances of the crime, the trial court must detail why the defendant
deserves an enhanced sentence under the particular circumstances.” Plummer,
851 N.E.2d at 391. This aggravator is thought to be associated with particularly
heinous facts or situations. See Vasquez v. State, 762 N.E.2d 92, 97 (Ind. 2001).
a trial court may consider a defendant’s effort to interfere in the investigation of a crime by concealing information to be an aggravating circumstance). To the extent it is not a cognizable claim on appeal, as noted, a trial court cannot now be said to have abused its discretion by failing to properly weigh aggravating and mitigating factors. Anglemyer, 868 N.E .2d at 491.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 16 of 26 [25] After the sentencing court reiterated the provision of Indiana Code section 35-
38-1-7.1(a)(1), its preceding statement was, “as I indicated earlier, obviously
[][Troy] lost his life in this matter. Uh, I don’t know what damage or loss could
be suffered by a victim in a particular matter greater than the loss of life. . . .”
(Tr. Vol. II, p. 145). We agree with Higginson that the trial court’s statement,
reiterating an essential element of the offense (i.e., the loss of life), cannot be
used as an aggravator to enhance Higginson’s sentence unless the trial court
provides additional clarification regarding how Higginson’s participation in the
crime surpasses the scope of the offense’s elements.
[26] Nevertheless, we need not remand for resentencing, as here, if we can say with
confidence that the trial court would have imposed the same sentence if it had
considered proper aggravating and mitigating circumstances. McCain v. State,
148 N.E.3d 977, 984 (Ind. 2020). As we will continue to discuss below, there
were other valid aggravating factors upon which the trial court relied on
imposing Higginson’s sentence. Thus, we are certain that the trial court would
have rendered the same sentence irrespective of this aggravator.
ii. Circumstances Surrounding the Crime
[27] Next, Higginson argues that the trial court improperly considered the
circumstances surrounding the crime, i.e., the 24 hours leading up to the
commission of the crime. The State responds by arguing that the trial court was
permitted to consider the 24 hours prior to the commission of the crime
“because it goes to the nature and circumstances of the crime and belies
Higginson’s account that Troy initiated the violence against her and that she
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 17 of 26 was an innocent victim of violence who was pushed to respond with deadly
force.” (Appellees’ Br. p. 23).
[28] “‘Generally, the nature and circumstances of a crime is a proper aggravating
circumstance.’” Hudson v. State, 135 N.E.3d 973, 980 (Ind. Ct. App. 2019)
(quoting Gomillia v. State, 13 N.E.3d 846, 853 (Ind. 2014)). “[T]o enhance a
sentence using the nature and circumstances of the crime, the trial court must
detail why the defendant deserves an enhanced sentence under the particular
circumstances.” Plummer, 851 N.E.2d at 391.
[29] As noted, despite having a safe place to stay following the previous night’s
domestic complaint episode, Higginson returned to Troy’s residence the next
day and argued with Troy. In an attempt to further aggravate Troy, she sent
him text messages threatening to find new partners and confessed to cheating
on him while they were married. Troy’s response was kind and considerate and
he requested her to peacefully leave. When Troy refused to give Higginson the
keys to his motorcycle and offered to drive her, another argument ensued, but
Higginson agreed to leave. Higginson then shot Troy on the drive home. The
trial court noted in its sentencing statement that Higginson gave at least three
varying accounts of how she retrieved her firearm and shot Troy, and while not
entirely discounting her PTSD diagnosis as the reason for her violent reaction,
the trial court found that Higginson put herself in a “very volatile situation,
after having been removed from it” the night before. (Tr. Vol. II, p. 148). Here,
we find no error in the trial court’s consideration of the circumstances
surrounding the commission of the offense as an aggravating factor. See Ousley
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 18 of 26 v. State, 807 N.E.2d 758, 760, 765 (Ind. Ct. App. 2004) (recognizing that the
trial court may consider the nature and circumstances of a crime when
sentencing a defendant).
iii. Criminal History
[30] Higginson’s criminal history is limited to one misdemeanor charge for the
domestic battery that was disposed of through a pre-trial diversion program in
2014. Higginson challenges the trial court’s use of that dismissed charge as an
aggravating factor. Our supreme court has stated:
Charges that do not result in convictions may be considered by the sentencing court in context, but something more than mere recitation unaccompanied by specific allegations should be shown. We have held that “[i]n order to enhance a criminal sentence based, in whole or in part, on the defendant’s history of criminal activity, a sentencing court must find instances of specific criminal conduct shown by probative evidence to be attributable to the defendant. A bare record of arrest will not suffice to meet this standard.”
McElroy v. State, 865 N.E.2d 584, 591 (Ind. 2007) (quoting Tunstill v. State, 568
N.E.2d 539, 544 (Ind. 1991). Despite Higginson’s successful completion of the
pre-trial diversion program in 2014, which included her participation in an
anger management program and ultimately leading to the dismissal of the
domestic battery charge, Higginson continued to engage in acts of violence and
aggression. In identifying Higginson’s dismissed charge as an aggravating
factor, the trial court noted that Higginson’s dismissed charge was not a
conviction but was a “history of behavior” toward Troy and considered the
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 19 of 26 behavior to be “significant” as she was the “aggressor” in that past domestic
incident and had not been deterred from engaging in further “anti-social
behavior.” (Tr. Vol. II, p. 145). In the given context, the trial court properly
determined Higginson’s record of arrest for battery to be significant because
Higginson has not been deterred from engaging in additional domestic violent
episodes despite her arrest. See Belcher v. State, 138 N.E.3d 318, 328 (Ind. Ct.
App. 2019) (where trial court at sentencing considered the fact that Belcher had
been given prior opportunities to rehabilitate himself through anger
management and domestic violence classes, but Belcher had continued to
commit battery offenses), trans. denied.
[31] As a final note, Higginson relies on Douglas v. State, 878 N.E.2d 873, 877 (Ind.
Ct. App. 2007) in support of her argument that her dismissed offense, which
occurred approximately four years before the current offense, should not have
been considered as an aggravating factor because of its lack of “gravity and
proximity” to the instant offense. (Appellant’s Br. p. 10). In Douglas, we
reversed Douglas’ thirty-month sentence because his criminal history consisted
of convictions that were over ten years old, and the remaining traffic infractions
were not similar in nature to his offense, i.e., Douglas’ failure to register as a sex
offender. Douglas, 878 N.E.2d at 877. We find Douglas inapplicable to
Higginson’s case because her past arrest for domestic battery involved violent
acts against Troy, the same victim in the current offense. Therefore, we
conclude that Higginson’s dismissed charge, while only appearing as a record of
arrest, was relevant, and a proper aggravating factor.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 20 of 26 B. Mitigating Factors
[32] When a defendant claims a trial court abused its discretion by failing to find a
mitigating circumstance, the defendant must establish the claimed mitigator is
both significant and clearly supported by the record. Anglemyer, 868 N.E.2d at
493. Although a failure to find mitigating circumstances clearly supported by
the record may imply that the trial court improperly overlooked them, the trial
court “is not obligated to explain why it has chosen not to find mitigating
circumstances. Likewise, the court is not obligated to accept the defendant’s
argument as to what constitutes a mitigating factor.” Id. Higginson argues that
the trial court abused its discretion in failing to consider the following
mitigating factors, namely, (1) that the crime was the result of circumstances
likely to recur; (2) that the crime was induced or facilitated due to her PTSD
diagnosis; and (3) that there are substantial grounds tending to excuse or justify
the crime due to her PTSD diagnosis.
[33] Turning to Higginson’s first contention, that the circumstances that led to the
crime are unlikely to recur since Troy is “regrettably deceased” and “[t]here is
no evidence of [her] bad behavior toward other persons” other than Troy, this is
an argument that the trial court expressly rejected. (Appellant’s Br. p. 12). For
this proffered mitigator, the trial court determined that it could not “necessarily
say what would or would not happen” in the future, given Higginson’s PTSD
diagnosis. (Tr. Vol. II, p. 141). Stated differently, the trial court gave limited
mitigating weight to this factor since it could not be certain that Higginson
would not react violently in the same way in case of another incident.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 21 of 26 [34] As for mitigating factors two and three, which we understand as claims that the
trial court failed to consider her PTSD diagnosis as it related to those factors,
our supreme court has held that “mental illness at the time of the crime may be
considered a significant mitigating factor.” Castor v. State, 754 N.E.2d 506, 509
(Ind. 2001). With that said, our supreme court has emphasized that evaluating
the validity of a claim that mental illness deserves mitigating weight requires the
exercise of “a high level of discernment.” Covington v. State, 842 N.E.2d 345,
349 (Ind. 2006). The following considerations are relevant when the trial court
determines the significance of a defendant’s mental illness for sentencing: (1)
the extent of the defendant’s inability to control his or her behavior due to the
disorder or impairment; (2) overall limitations on functioning; (3) the duration
of the mental illness; and (4) the extent of any nexus between the disorder or
impairment and the commission of the crime. Id.
[35] Dr. Westcott’s testimony was that a victim of domestic abuse might enter into
“fight or flight mode” based on a triggering event, and it was not “uncommon”
for such a victim to use deadly force “to try to survive” the abuse. (Tr. Vol. II,
p. 19). According to Dr. Westcott, the domestic abuse Higginson experienced
during her eight years of marriage to Troy led to her PTSD symptoms, and she
suggested that incidents that resemble past domestic abuse may prompt a victim
who suffers from such trauma to resort to the use of deadly force. While the
trial court expressed its overall concern with Dr. Westcott’s reliance on using
“subjective information” solely provided by Higginson to diagnose her with
PTSD, it nevertheless accepted that diagnosis. (Tr. Vol. II, p. 148).
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 22 of 26 [36] Based on our review of the record, we find that, notwithstanding the trial
court’s acceptance of Higginson’s PTSD resulting from the domestic abuse she
endured during her lengthy marriage to Troy, other evidence strongly suggests
that Higginson deliberately engaged in violent behavior, demonstrating the
ability to control her actions without limitation. As noted, the trial court had
the opportunity to review Dr. Hale’s report, which provided that Higginson’s
behavior of returning to a home where she had endured abuse after having been
removed from it the day before was inconsistent with a person who has PTSD.
As the trial court pointed out, notwithstanding her PTSD diagnosis and her
claim that Troy had consistently engaged in domestic violence against her for
the past eight years, it could not “objectively” understand why Higginson chose
to return to Troy’s house the next day and put herself in “a very volatile
situation”. (Tr. Vol. II, p. 148). Based on the trial court’s statement, it is clear
that it considered Higginson’s PTSD diagnosis at sentencing. Despite the
possible connection between her PTSD and the crime, we conclude that
Higginson had the capacity to control her behavior, without limitation, at the
time of the offense. Therefore, as in Covington, we are not persuaded that the
trial court “erred in assigning some, but not determinate, weight” to
Higginson’s PTSD diagnosis. Covington, 842 N.E.2d at 349.
II. Appropriateness of Sentence
[37] Higginson claims that her thirty-year sentence is inappropriate in light of the
nature of the offense and her character. Although a trial court may have acted
within its lawful discretion in imposing a sentence, Indiana Appellate Rule 7(B)
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 23 of 26 provides that an appellate court “may revise a sentence authorized by statute if,
after due consideration of the trial court’s decision, the court finds that the
sentence is inappropriate in light of the nature of the offense and the character
of the offender.” The primary role of Rule 7(B) review “should be to attempt to
leaven the outliers, and identify some guiding principles for trial courts and
those charged with improvement of the sentencing statutes, but not to achieve a
perceived ‘correct’ result in each case.” Cardwell v. State, 895 N.E.2d 1219, 1225
(Ind. 2008).
[38] Whether we regard a sentence as appropriate 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 a myriad of other considerations that come to light in a
given case. Suprenant v. State, 925 N.E.2d 1280, 1284 (Ind. Ct. App. 2010),
trans. denied. An appellant bears the burden of persuading this court that his
sentence is inappropriate. Corbally v. State, 5 N.E.3d 463, 471 (Ind. Ct. App.
2014).
[39] The sentencing range for a Level 2 felony is between ten and thirty years, with
the advisory being seventeen and one-half years. Ind. Code § 35-50-2-4.5. The
trial court sentenced Higginson to the maximum sentence of thirty years.
When reviewing the nature of the offense, we look at the details and
circumstances of the offense and the defendant’s participation therein. Madden
v. State, 162 N.E.3d 549, 564 (Ind. Ct. App. 2021). Higginson shot and killed
Troy while being offered a ride home.
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 24 of 26 [40] Finally, we turn to the character of the offender. It is well settled that, when
considering the character of the offender, one relevant fact is the defendant’s
criminal history. Johnson v. State, 986 N.E.2d 852, 857 (Ind. Ct. App. 2013).
Higginson’s sole criminal charge was dismissed in 2014 due to a pretrial
diversion agreement. However, it as a record of arrest, and it reflects poorly on
her character. See Zavala v. State, 138 N.E.3d 291, 301 (Ind. Ct. App. 2019) (“A
record of arrests reflects on the defendant’s character in part because such
record reveals that subsequent antisocial behavior by the defendant has not
been deterred even having been subject to police authority and having been
made aware of its oversight.”), trans. denied. Higginson’s character is further
diminished by the fact that an hour before she shot Troy, she issued a threat to
him on Facebook, stating that he needed a “good old-fashioned ass whooping
to knock some of the air out of his swollen ego[-]filled head.” (Appellant’s
App. Vol. II, p. 66). Although the trial court indicated that such threats would
typically be ignored, in Higginson’s case, her “threats came to life.” (Tr. Vol.
II, p. 143); See McCain v. State, 148 N.E.3d 977, 985 (Ind. 2020) (holding that a
defendant’s “Facebook posts showing a desire for violent conflict” reflected
poorly on his character). Finally, even though Higginson pleaded guilty to
voluntary manslaughter, a lesser included offense to murder, she blamed Troy
for her actions, and she provided multiple inconsistent accounts of how she shot
Troy to various parties, including the police, Dr. Westcott, the probation
department, and also in her allocution statement. By doing so, she attempted to
shift the blame away from herself and undermine her own responsibility for the
crime, which reflects poorly on her character. See Boling v. State, 982 N.E.2d Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 25 of 26 1055 1061-62 (Ind. Ct. App. 2013) (defendant placing blame on victim showed
poor character and allowed for aggravated sentence).
[41] In sum, Higginson has failed to meet her burden of persuading us that her
overall thirty-year sentence, which we do not find to be an outlier, is
inappropriate in light of her character and the nature of her offense. See e.g.,
Eversole v. State, 873 N.E.2d 1111, 1113-14 (Ind. Ct. App. 2007) (upholding a
thirty-year sentence for voluntary manslaughter, without a firearm
enhancement, as appropriate under 7(B) even though defendant, who killed his
wife’s lover with a single gunshot, had no criminal record and possessed “good
character”), trans. denied.
CONCLUSION
[42] For the foregoing, we conclude that the trial court did not abuse its discretion in
sentencing Higginson, and the sentence is not inappropriate in light of the
nature of Higginson’s offense and her character.
[43] Affirmed
[44] Altice, C. J. and Pyle, J. concur
Court of Appeals of Indiana | Opinion 22A-CR-2634 | April 28, 2023 Page 26 of 26