MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                       FILED
this Memorandum Decision shall not be                                   Jun 13 2018, 10:12 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
Matthew J. McGovern                                      Curtis T. Hill, Jr.
Anderson, Indiana                                        Attorney General of Indiana

                                                         James B. Martin
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Kyle Baker,                                              June 13, 2018
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         82A01-1707-CR-1576
        v.                                               Appeal from the Vanderburgh
                                                         Circuit Court
State of Indiana,                                        The Honorable David D. Kiely,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         82C01-1604-MR-2074



Barnes, Judge.




Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018              Page 1 of 18
                                             Case Summary
[1]   Kyle Baker appeals his convictions and aggregate forty-five-year sentence for

      Level 2 felony voluntary manslaughter and an enhancement for committing the

      underlying offense with a firearm. We affirm.


                                                    Issues
[2]   The issues before us are as follows:


              I.      whether the trial court erred in refusing Baker’s tendered
                      jury instruction as to reckless homicide;


              II.     whether the trial court abused its discretion in sentencing
                      him by finding an improper aggravating circumstance; and


              III.    whether Baker’s aggregate forty-five-year sentence is
                      inappropriate in light of the nature of his offense and his
                      character.


                                                     Facts
[3]   On April 8, 2016, Baker and his girlfriend, Brandi Smith (“Brandi”), traveled to

      Evansville to collect a $75 debt that was owed to Baker by his brother, Malechi

      Baker (“Malechi”). Baker had difficulty tracking Malechi and called his cell

      phone repeatedly. Malechi had left his cell phone with his and Baker’s “good

      friend,” Robert Ocke-Hall. Tr. Vol. IV p. 141. When Ocke-Hall answered

      Malechi’s phone, Baker demanded to know Malechi’s whereabouts. Baker felt

      that he was “g[etting] the runaround” and that Ocke-Hall “was trying to over



      Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 2 of 18
      talk [him]”; after a heated exchange, the men threatened one another. Id. at

      142, 132.


[4]   Baker subsequently learned that Malechi was near Fares Avenue and,

      accompanied by Brandi, went to find him. At approximately 6:30 P.M., Baker

      saw Ocke-Hall walking on Fares Avenue. Baker pulled out his Smith and

      Wesson semi-automatic handgun, pointed it at Ocke-Hall, and ran toward him.

      Baker shot Ocke-Hall in the chest at close range and fled with Brandi.

      Witnesses reported seeing a man and a woman fleeing the scene and described

      the woman as wearing multi-colored, printed leggings. The video surveillance

      system of a nearby business captured the shooting. Ocke-Hall died from his

      injuries.


[5]   At approximately midnight, an Evansville Police Department officer pulled

      over a speeding vehicle and observed a large bag of a green leafy substance in

      plain view on the rear floor board. Baker was seated in the rear driver’s side

      seat and the bag, later determined to contain synthetic marijuana, lay at his feet.

      Brandi was seated immediately next to him and was wearing colorful, tie-dyed

      leggings. The officer arrested Baker. From jail, Baker relayed a message to the

      police that he wanted to speak with them.


[6]   Baker made multiple jailhouse telephone calls to Brandi from jail. The

      conversations were recorded and later reviewed by law enforcement. In one

      such phone conversation that occurred before Baker spoke with the police, he

      stated, “. . .[T]hey have, they’ve got a video, I was intoxicated, I wasn’t trying


      Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 3 of 18
      to (inaudible), I’m trying to get an involuntary manslaughter and sign

      something . . . .” Id. at 105.


[7]   Evansville Police Department Detectives Jennifer Cueto and Keith Whitler

      interviewed Baker at the Vanderburgh County Jail on April 14, 2016.1 They

      advised Baker of his right to have an attorney present during the interview;

      Baker waived his right to counsel. Baker then told the police officers that he

      and Ocke-Hall were “good friend[s]” and that he was under the influence of

      “Roxy’s and f****** dope and uppers and downers . . . and that’s why [he]

      didn’t remember . . . .” Id. at 141, 126. He added that he “just wish[ed] [he]

      could take it all back.” Id. at 127. Detective Cueto asked Baker to “tell . . .

      whatever [he] want[ed] to tell,” and Baker responded as follows:


                 [Baker]: I wasn’t sure whether [Ocke-Hall] was reaching for a
                 gun or not when I pulled my gun but it just misfired. . . .


                                                          *****


                 . . . [I]t was all a misunderstanding and I do apologize for
                 everything. I’ve had almost a week to think about this and it’s
                 tore me up.


                                                          *****


                 [Baker]: I just remember, I just remember drawing my gun
                 because I thought I was about to get shot at, like I don’t know



      1
          The trial court admitted the videorecording of the interview at trial.


      Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 4 of 18
        what made me think that, if it was like a (inaudible) in my mind
        or something,


                                             *****


        [Baker]: . . . I think I remember him reaching for something and I
        might have thought that’s what he was doing, he was trying to
        shoot me, that’s what I’m saying, I might have just blacked out
        and freaked out.


                                             *****


        DETECTIVE CUETO: * * * * * Where did you go?


        [Baker]: I don’t remember, I just ran and I freaked out because I
        knew that I did, I’m sorry, I messed up bad.


                                             *****


        [Baker]: Yeah. Is there anything I can do to help myself instead
        of hurting me, like you said you were going to try and use all of
        this against me to prosecute me, I mean I don’t want, I don’t
        want my life just to sit in prison, I don’t.


        DETECTIVE CUETO: * * * * * I mean I made it pretty clear
        that anything you say I will use against you in the court of law.


        [Baker]: Uh-huh. (affirmative). I just don’t want everybody to
        think that I did this with malicious intent because I didn’t, it was
        an accident, I mean I was on drugs, I don’t even remember none
        of this, so I-




Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 5 of 18
              DETECTIVE CUETO: Well you remember some of it, I mean
              you said that.


              [Baker]: Yeah, that’s what I’m saying, I was like in and out of
              drug induced blackout for like, for that whole two days, like
              there’s parts I remember and parts I don’t, and then towards the
              end there was just the worst because I know I was, I did a lot that
              day.


      Tr. Vol. IV p. 131, 137, 138, 139, 147-48. Baker “vacillated between a claim

      that the shooting was [an] accidental [gun misfire] and a claim that he blacked

      out from drug use and did not remember the shooting.” Appellant’s Br. p. 19.


[8]   In another recorded phone call with Brandi, this one occurring after he was

      interviewed by police, Baker stated the following:


              THE DEFENDANT: Yeah, do not talk to them, no more, don’t
              say anything because if they cross examine on statements and
              they’re different now, they’re going to be sh****. Don’t talk to
              them at all.


              [Brandi]: Okay.


              THE DEFENDANT: But, I basically told them like I was on
              drugs and I blacked out, f****** I don’t remember, I told them
              we met at, somewhere in Jimtown and walked back to Fares, I
              told them-


              [Brandi]: Ahhhh.


              THE DEFENDANT: What? * * * * *


      Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 6 of 18
        [Brandi]: Okay.


        THE DEFENDANT: And then we walked back to Fares
        together.


        [Brandi]: But yeah-


        THE DEFENDANT: And I told them I don’t even remember
        f******, I don’t remember nothing really like I don’t remember
        being at Westbrook, I don’t remember, about half of it I was
        basically blacked out from drugs, but I don’t know if I helped or
        hurt myself for real.


        [Brandi]: Oh my God.


        THE DEFENDANT: Like I feel like I should have never even
        f****** went and talked to them, but I’m just trying to get like,
        what’s it called, it’s not involuntary manslaughter, it’s f******,
        it’s something like where you accidentally commit homicide.


                                             *****


        [Brandi]:. . . I told them that we didn’t walk, we didn’t walk to
        Fares together.


        THE DEFENDANT: Really?


        [Brandi]: Yeah, I told them that.


        THE DEFENDANT: F***.


                                               *****

Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 7 of 18
               THE DEFENDANT: Oh, f***, our stories aren’t even the same,
               they’re probably mad.


               [Brandi]: Yeah, that’s not good.


               THE DEFENDANT: No.


       Tr. Vol. IV pp. 151-52,153-54.


[9]    On April 11, 2016, the State charged Baker with murder. The State filed

       additional informations on May 5 and November 10, 2016, respectively,

       seeking sentence enhancements for Baker’s use of a firearm and for a life

       sentence without the possibility of parole. Baker was tried by a jury on May 8-

       10, 2017.


[10]   Law enforcement witnesses testified to the foregoing facts on behalf of the

       State. The State also called an Indiana State Police ballistics expert who

       testified that performance impact testing on Baker’s handgun had established

       that it would only fire when the trigger was deliberately pulled.


[11]   During the course of the trial, the following colloquy ensued between defense

       counsel and the trial court:


               [DEFENSE COUNSEL]: I frankly believe when you watch the
               entire interview [of Baker] that self-defense[,] involuntary
               manslaughter[,] and reckless homicide all become valid jury
               instructions, but you haven’t seen the interview.


               THE COURT: Exactly, I haven’t seen them.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 8 of 18
                                                    *****


               THE COURT: And I have to see all of the evidence before I
               know whether or not the instructions are appropriate.


       Id. at 113.


[12]   At the close of the evidence, Baker tendered proposed final instructions,

       including instructions on reckless homicide. Defense counsel made the

       following record:


               I’ve also tendered reckless homicide, instruction 6, and then the
               definition of recklessly, instruction 7. I think the evidence
               supports that there is a serious evidentiary dispute as to mens rea,
               knowing and intentional have been given, and I believe that the
               evidence presented by the State at the very least, not
               withstanding the evidence presented by the defense, permits it,
               should allow the Court or should require the Court to give
               reckless homicide.


       Id. at 208. The State objected to Baker’s reckless homicide instructions. See

       App. Vol. II pp. 122-23. Subsequently, although the trial court accepted

       Baker’s tendered instructions regarding voluntary manslaughter and self-

       defense, it declined—based upon the evidence it heard at trial—to instruct the

       jury on reckless homicide.


[13]   The jury found Baker guilty of the lesser-included offense of Level 2 felony

       voluntary manslaughter. Baker subsequently pled guilty to use of a firearm

       during commission of a felony.


       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 9 of 18
[14]   At Baker’s sentencing hearing on June 8, 2017, the trial court found, as

       aggravating circumstances, the following: (1) Baker’s prior juvenile and adult

       criminal history; (2) the pre-sentence investigation report indicated that Baker

       had a high risk to re-offend; (3) his lack of remorse; (4) his failure to take

       responsibility for his actions; (5) his unwillingness to enter a guilty plea; (6) he

       shot and left Ocke-Hall bleeding without attempting to render aid; and (7) his

       use of illicit drugs around the time of the shooting. The trial court found only

       one mitigating circumstance—namely, that Baker pled guilty to the sentence

       enhancement for committing the felony offense with a firearm. The trial court

       sentenced Baker to thirty years in the Department of Correction and enhanced

       that sentence by fifteen years for his use of a firearm in the commission of a

       felony, for an aggregate sentence of forty-five years. Baker now appeals.


                                                   Analysis
                                                I. Jury Instruction

[15]   Baker argues that the trial court erred in refusing his tendered jury instruction

       on reckless homicide as a lesser-included offense of murder. The proper

       instruction of the jury rests within the sound discretion of the trial court, and we

       review its decisions for an abuse of discretion. Barnes v. State, 952 N.E.2d 420,

       424 (Ind. Ct. App. 2010). Jury instructions are to be considered as a whole and

       in reference to each other, and the trial court’s ruling will not be reversed unless

       the instructions, taken as a whole, misstate the law or mislead the jury. Id.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 10 of 18
[16]   To determine whether to instruct a jury on a lesser-included offense, the trial

       court must engage in a three-part analysis. Isom v. State, 31 N.E.3d 469, 485

       (Ind. 2015). The first two parts require the trial court to consider whether the

       lesser-included offense is inherently or factually included in the greater offense.

       Id. If it is, “then the trial court must determine if there is a serious evidentiary

       dispute regarding the element that distinguishes the lesser offense from the

       principal charge.” Id. It is well-settled that reckless homicide is an inherently

       lesser-included offense of murder. Fishers v. State, 810 N.E.2d 674, 679 (Ind.

       2004).


[17]   Because the trial court found no serious evidentiary dispute existed, we will

       reverse only if that finding was an abuse of discretion. See Young v. State, 699

       N.E.2d 252, 255 (Ind. 1998). In our review, “[W]e accord the trial court

       considerable deference, view the evidence in a light most favorable to the

       decision, and determine whether the trial court’s decision can be justified in

       light of the evidence and circumstances of the case.” Fish v. State, 710 N.E.2d

       183, 185 (Ind. 1999).


[18]   In considering whether there is a serious evidentiary dispute, the trial court

       examines the evidence presented by both parties regarding the element(s)

       distinguishing the greater offense from the lesser one. Young, 699 N.E.2d at

       255. This analysis requires the trial court to evaluate the “weight and credibility

       of [the] evidence,” and then determining the “seriousness of any resulting

       dispute.” Fish, 710 N.E.2d at 185.



       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 11 of 18
[19]           Reckless homicide is a killing committed with a plain, conscious,
               and unjustifiable disregard of harm that might result, and such
               disregard involves a substantial deviation from acceptable
               standards of conduct. Ind. Code §§ 35-42-1-5 and 35-41-2-2(c).
               Murder, on the other hand, requires as a minimum a killing
               committed by a perpetrator who engaged in the killing with an
               awareness of a high probability that he was doing so. Ind. Code
               §§ 35-42-1-1 and 35-41-2-2(b).


       Turner v. State, 751 N.E.2d 726, 731 (Ind. Ct. App. 2001). The distinguishing

       element between knowing murder and reckless homicide is culpability.

       Compare Ind. Code § 35-41-2-2(b) (“A person engages in conduct ‘knowingly’ if,

       when he engages in the conduct, he is aware of a high probability that he is

       doing so.”) with Ind. Code § 35-41-2-2(c) (“A person engages in conduct

       ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable

       disregard of harm that might result and the disregard involves a substantial

       deviation from acceptable standards of conduct.”).


[20]   In support of his contention that the trial court erred in refusing his tendered

       instruction, Baker relies heavily upon Turner, 751 N.E.2d, and Young, 699

       N.E.2d 252. In these cases, the court on appeal found that there was a serious

       evidentiary dispute regarding the element that distinguished the lesser-included

       offense from the principal charge, such that the trial court had erred in refusing

       the defendants’ tendered instructions as to the lesser-included offense(s).

       Baker’s reliance on these cases is misplaced here. Turner and Young involved

       defendants who fired gunshots indiscriminately into crowds of people; these

       cases are readily factually distinguishable from the instant scenario in which


       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 12 of 18
       Baker spotted Ocke-Hall—a person with whom Baker had a dispute—from a

       distance, leveled a gun at him, ran toward him and, after closing the distance

       between them, discharged the weapon into Ocke-Hall’s chest at close range.


[21]   Here, we find that the trial court did not abuse its discretion in refusing to give

       Baker’s proposed jury instruction as to reckless homicide. The State presented

       evidence, including video surveillance footage that shows the shooting; it

       depicts Baker pointing a semi-automatic handgun at Ocke-Hall and running

       toward him. The video footage further shows Ocke-Hall backing away from

       Baker and Baker shooting him in the chest at point-blank range. See Turner, 751

       N.E.2d at 731 (holding that an instruction on reckless homicide was not

       warranted if there was no serious evidentiary dispute but that defendant

       committed the attacks with an awareness of a high probability that he was

       engaged in killing). Although Baker “vacillated between a claim that the

       shooting was [an] accidental [gun misfire] and a claim that he blacked out from

       drug use and did not remember the shooting,” neither of these scenarios is akin

       to the defendants’ reckless intent in Turner and Young. Appellant’s Br. p. 19.


[22]   Based on the totality of the evidence, we conclude that there was no serious

       evidentiary dispute regarding (1) the “knowingly” or “intentionally” mens rea

       element of murder where Baker targeted and shot Ocke-Hall in the chest at

       close range; and (2) whether Baker was aware that there was a high probability

       that his actions would result in Ocke-Hall’s death. The trial court did not abuse

       its discretion in declining to give Baker’s proposed instruction on reckless

       homicide.

       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 13 of 18
                                                   II. Sentencing

[23]   Sentencing decisions rest within the sound discretion of the trial court.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007). So long as the sentence is within the statutory range, it is

       subject to review only for an abuse of discretion. Id. An abuse of discretion

       will be found where 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. A trial court may abuse its discretion in

       a number of ways, including: (1) failing to enter a sentencing statement at all;

       (2) entering a sentencing statement that includes aggravating and mitigating

       factors that are unsupported by the record; (3) entering a sentencing statement

       that omits reasons that are clearly supported by the record; or (4) entering a

       sentencing statement that includes reasons that are improper as a matter of law.

       Id. at 490-91. If a trial court abuses its discretion by improperly considering an

       aggravating circumstance, we need to remand for resentencing only “if we

       cannot say with confidence that the trial court would have imposed the same

       sentence had it properly considered reasons that enjoy support in the record.”

       Anglemyer, 868 N.E.2d at 491.


[24]   First, Baker contends that the trial court abused its discretion when it found his

       alleged lack of remorse to be an aggravating factor before imposing sentence.

       An abuse of discretion in identifying or not identifying aggravators and

       mitigators occurs if it is “‘clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 14 of 18
       deductions to be drawn therefrom.’” Anglemyer, 868 N.E.2d at 490 (quoting

       K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)).


[25]   At his sentencing hearing on June 8, 2017, Baker stated, “I know sorry will

       never be enough to bring [Ocke-Hall] back, and nothing I can say can provide

       closure to such a great loss, so I put myself before you and at the mercy of the

       Court today just asking that you forgive me as I learn to forgive myself.” Tr.

       Vol. II p. 22.


[26]   Although Baker claimed to be remorseful, the trial court was not at all obligated

       to accept his expression of remorse as sincere. See Hape v. State, 903 N.E.2d

       977, 1002-03 (Ind. Ct. App. 2009) (explaining that “our review of a trial court’s

       determination of a defendant’s remorse is similar to our review of credibility

       judgments: without evidence of some impermissible consideration by the trial

       court, we accept its determination”), trans. denied. The trial court did not abuse

       its discretion in this regard. In any event, even if the trial court had abused its

       discretion in identifying this aggravating circumstance, reversal would not be

       warranted because, as we explain below, Baker’s aggregate forty-five-year

       sentence is not inappropriate. See Pickens v. State, 767 N.E.2d 530, 535 (Ind.

       2002) (holding that “a sentence enhancement may be upheld if other valid

       aggravators exist”).


                                    III. Inappropriateness of Sentence

[27]   Next, Baker contends that his aggregate forty-five-year sentence is inappropriate

       in light of the nature of his offense and his character. The authority granted to

       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 15 of 18
       this Court by Article 7, § 6 of the Indiana Constitution permitting appellate

       review and revision of criminal sentences was implemented by the Indiana

       Supreme Court through Appellate Rule 7(B). We 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.” Ind. Appellate Rule 7(B). The primary

       purpose in this type of review is to “leaven the outliers” and focus on the

       aggregate sentence for the crime(s) committed. Caldwell v. State, 895 N.E.2d

       1219, 1125 (Ind. 2008). The appellant bears the burden of “persuad[ing] the

       appellate court that his or her sentence has met this inappropriateness standard

       of review.” Kimbrough v. State, 979 N.E.2d 625, 630 (Ind. 2012) (quoting

       Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006)).


[28]   The advisory sentence is only “the starting point the Legislature has selected as

       an appropriate sentence for the crime committed.” Anglemyer, 868 N.E.2d at

       494. The advisory sentence for a Level 2 felony is seventeen and one-half years,

       with the range being ten to thirty years. The trial court imposed a maximum

       sentence of thirty years and enhanced it by fifteen years for Baker’s use of a

       firearm in the commission of the offense, for an aggregate sentence of forty-five

       years.


[29]   As to the nature of the offense, Baker—enraged over a perceived slight and a

       $75 debt owed him by someone else entirely—used deadly force in an

       unprovoked, deadly attack on Ocke-Hall, whom he called his “good friend.”

       See Tr. Vol. IV p. 141. Baker spotted Ocke-Hall from a distance, levelled a

       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 16 of 18
       semi-automatic handgun at him, ran toward him, shot him in the chest at close

       range, and fled. Ocke-Hall died from the gunshot wound.


[30]   Regarding Baker’s character, twenty-four-year-old Baker has prior juvenile

       adjudications for Class B misdemeanor battery (X 2), Class D felony criminal

       recklessness, Class B misdemeanor criminal mischief, Class A misdemeanor

       intimidation, Class D felony theft, and Class B misdemeanor possession of a

       knife on school property. His adult criminal history includes convictions for

       Class A misdemeanor battery resulting in bodily injury, Class A misdemeanor

       possession of marijuana, Class D felony theft, Level 5 felony intimidation

       where he drew or used a deadly weapon, and Level 6 felony battery with

       moderate bodily injury. Baker’s is a quintessential example of a criminal

       history of escalating violence.


[31]   Additional insight into his character may be gleaned from his post-arrest

       conduct. Baker sought to coordinate his and Brandi’s stories; attempted to

       scuttle law enforcement’s efforts to gain useful information from Brandi;

       schemed to be charged with a lesser-offense; and blamed his substance abuse

       and an improbable gun misfire for his deadly actions.


[32]   Further still, his history of substance abuse reflects very poorly on his character.

       According to the pre-sentence investigation report,


               [T]he defendant reported he’s used K-2, Marijuana and
               Benzodiasepines [sic] in his past but stated that the only drug that
               he used with any regularity was K-2; he reported being a daily


       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 17 of 18
               user of K-2 between 2010 and 2013; at his heaviest, he was
               smoking about a gram a day. . . .


       App. Vol. II p. 158. Based upon Baker’s unchecked substance abuse,

       unwillingness to conform his conduct, and his record of escalating violence that

       ultimately left his “good friend” dead, we cannot say that an aggregate sentence

       of forty-five years is inappropriate in light of the nature of the offenses or his

       character.


                                                 Conclusion
[33]   The trial court properly refused Baker’s tendered jury instruction regarding

       reckless homicide. The trial court did not abuse its discretion in sentencing

       Baker; his sentence is not inappropriate. We affirm.


[34]   Affirmed


[35]   Vaidik, C.J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 82A01-1707-CR-1576| June 13, 2018   Page 18 of 18
