                                                                          FILED
                                                                     Dec 16 2016, 8:26 am

                                                                          CLERK
                                                                      Indiana Supreme Court
                                                                         Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Leanna Weissmann                                          Gregory F. Zoeller
Lawrenceburg, Indiana                                     Attorney General of Indiana
                                                          Angela N. Sanchez
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Danielle Green,                                           December 16, 2016
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          58A04-1511-CR-2008
        v.                                                Appeal from the
                                                          Ohio Circuit Court
State of Indiana,                                         The Honorable
Appellee-Plaintiff.                                       James D. Humphrey, Judge
                                                          Trial Court Cause No.
                                                          58C01-1406-MR-1



Kirsch, Judge.




Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016                  Page 1 of 33
[1]   Following a jury trial, Danielle Green (“Green”) appeals her conviction and

      sentence for murder,1 a felony. She raises four issues that we consolidate and

      restate as:


                 I. Whether the trial court abused its discretion when it excluded
                 certain testimony from a defense psychologist and when it
                 admitted evidence from an Indiana State Police crime scene
                 investigator concerning blood spatter;


                 II. Whether the trial court abused its discretion when, in
                 sentencing Green, it gave no mitigating weight to her claims that
                 she was a victim of domestic violence; and


                 III. Whether Green’s sixty-year sentence is inappropriate.


[2]   We affirm.


                                       Facts and Procedural History
[3]   In the early morning hours of May 26, 2014, Green shot Raymond Green

      (“Raymond”) ten times, killing him. The two had been married for

      approximately ten years, when in January 2014 they divorced for financial

      reasons,2 but continued to maintain a spousal relationship, and, at the time of

      the shooting, were living together in a trailer in rural Dillsboro, Indiana. Green

      used a five-shot, .38-caliber revolver. After shooting Raymond five times,




      1
          See Ind. Code § 35-42-1-1.
      2
       They divorced after learning that, if they were not married, Raymond could receive considerably more in
      social security benefits stemming from his first wife’s death in 2002.

      Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016                   Page 2 of 33
      Green went to the other end of the trailer to empty and reload the revolver and

      then returned to the bedroom and shot him five more times.


[4]   Green placed the empty cartridges in a plastic sandwich bag and also placed the

      gun into a small bag. She dragged Raymond’s body out of the trailer and put it

      into a large metal storage box that had belonged to Raymond. Inside the

      trailer, she removed the sheets and blankets and cut out portions of the carpet

      where Raymond’s blood had stained it. She packed the carpet pieces, sheets,

      blankets, her sweatshirt, and cleaning supplies into garbage bags and placed

      them into the box with Raymond’s body. Then she locked the metal box with a

      padlock, and, using farm equipment, moved the box thirty or forty feet from the

      front of the trailer.


[5]   Later that day and the next, Green told family and friends that their dog had

      attacked and killed Raymond. Raymond’s family became suspicious and

      contacted police. At 2:30 a.m. on May 28, two Ohio County Sheriff’s

      Department deputies went to Green’s home in Ohio County to conduct a

      welfare check on Raymond. Green was at home with her sister and niece and

      told police that Raymond was not home and was at his job as a truck driver.

      The deputies left but returned some hours later, and Green gave them consent

      to search the property. Other law enforcement also arrived at the premises,

      including Lawrenceburg Police Department officers and Indiana State Police

      (“ISP”) detectives. One deputy saw the large metal box, which smelled and

      was attracting flies, but Green said the box belonged to Raymond, she did not

      know what was in it, and officers would need a search warrant to search it.

      Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 3 of 33
      After obtaining a search warrant, authorities returned to Green’s home and

      located Raymond’s body in the metal box. Law enforcement obtained a second

      search warrant and searched the mobile home, finding blood and weapons.


[6]   During the late-night hours of May 28 and into the morning hours of May 29,

      Green gave an audio-recorded statement to police, admitting that she shot

      Raymond but stating that it was in self-defense. State’s Exs. 213, 15-M. She

      told police that she woke around 6:00 a.m. to use the bathroom and walked

      through the master bedroom where Raymond was sleeping and that she noticed

      that he had a loaded, cocked, and ready-to-fire revolver on the nightstand

      between the bed and bathroom. She described that she bumped into Raymond

      as she tried to sneak out of the bathroom, and he said, “I’m going to kill you.

      You need to die[.]” Id. She said that she was in fear for her life. As Green

      turned her body, Raymond fell onto the bed, but then lunged toward her, at

      which time Green grabbed the revolver and shot Raymond five times. She said

      that Raymond was still alive and moving, so out of fear, she went to another

      room, emptied the gun, reloaded it, and returned to find Raymond seated at the

      foot of the bed. She told officers that at that time she could see some blood on

      Raymond’s left side. He again told her that she needed to die and tried to lunge

      toward her, so she shot him five more times, and he slid to the floor.


[7]   Later on May 29, a detective returned to Green’s home to interview her again,

      and Green agreed to provide a re-enactment of the shooting. She told and

      showed police how she had used the bathroom around 6:00 or 6:30 a.m. and

      noticed the revolver on the nightstand. She also showed them how she

      Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 4 of 33
      encountered Raymond as she was leaving the bathroom and described that he

      started “to come after” her. State’s Ex. 214; Tr. at 1300. He told her several

      times, “I’m going to kill you. You need to die.” Id. She grabbed the gun, and

      he fell on the bed, and although she did not remember pulling the trigger or

      hearing gun shots, she did remember “seeing blood on the back of his head.”

      Id. Green told officers that Raymond was sitting and whispering that he was

      going to kill her, so she ran to the other room, unloaded and reloaded the gun,

      and returned to find him “sitting a little bit closer” and “he started to get up a

      little bit” so, being in fear for her life, she shot him again, at which time she

      remembered him falling to the floor. Tr. at 1301.


[8]   On June 3, 2014, the State charged Green with murder. On August 29, 2014,

      Green filed a Notice of Affirmative Defenses asserting that she intended to

      pursue the defense of insanity pursuant to Indiana Code 35-41-3-6 and that she

      intended to present evidence that she acted in self-defense, including evidence

      of domestic violence under the effects of battery statute, Indiana Code 35-41-3-

      11, often called battered woman syndrome (“BWS”). Green’s position was that

      Raymond abused her and that, when she learned that he was trying to obtain a

      life insurance policy on her life, she feared for her life and thought he planned

      to kill her and that, on the night in question, Raymond attacked her and she

      shot him in self-defense. In February 2015, the trial court appointed two

      doctors to evaluate Green pursuant to her assertion of an insanity defense.


[9]   Green hired Dr. Karla Fischer (“Dr. Fischer”), a research psychologist, law

      professor, and domestic violence consultant, to conduct an evaluation of Green.

      Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 5 of 33
       Green intended to present Dr. Fischer’s testimony regarding the role of

       domestic violence in the crime. Dr. Fischer met with and interviewed Green on

       February 9 and 10, 2015. Dr. Fischer evaluated Green by use of an Abusive

       Behavior Observation Checklist (“ABOC”), an interview, and a post-traumatic

       stress disorder (“PTSD”) DSM-5 symptom inventory. Green told Dr. Fischer

       that Raymond had abused her, emotionally, physically, and sexually, for years.

       Dr. Fischer concluded that Green had been the victim of years of domestic

       violence and suffered from PTSD and that Green did not plan or intend to kill

       Raymond. A few days after her evaluation with Dr. Fischer, Green filed a

       Notice of Withdrawal of Affirmative Defenses, withdrawing her intent to use

       the statutory defenses of insanity and BWS. Appellant’s App. at 98-99.3


[10]   Following its deposition of Dr. Fischer in May 2015, the State filed a Motion in

       Limine to Exclude the Testimony Dr. Karla Fisher, on the basis that her

       statements about the alleged abuse suffered by Green would be hearsay, that

       she was not qualified to and did not properly diagnose PTSD, and that her

       testimony bore upon the affirmative defenses that Green withdrew. Tr. at 114-

       17.4 The trial court conducted an evidentiary hearing, and Green presented the



       3
         After Green filed her Notice of Withdrawal of Affirmative Defenses, the trial court issued an order vacating
       its previous appointment of two doctors to examine Green. Appellant’s App. at 1212.
       4
         The CCS reflects that the State filed its Motion in Limine to Exclude the Testimony of Dr. Karla Fischer on
       June 23, 2015. Appellant’s App. at 22. Although the thirteen volumes of Appellant’s Appendix contain
       documents that are, for the most part, in chronological order, the Motion in Limine is not found in Volume 5
       of Appellant’s Appendix, containing documents dated from June 1, 2015 to July 7, 2015. Neither party cites
       to the Motion’s location in the Appellant’s Appendix. Appellant’s Br. at 10 (not citing to record); Appellee’s Br.
       at 6, 17 (citing to Transcript of hearing on Motion). Our conclusion is that the Motion in Limine is not
       included in the record before us.

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016                         Page 6 of 33
       testimony of Dr. Fischer, who testified that her opinions and conclusions would

       include that Green had PTSD resulting from domestic violence and that she

       was in a traumatized state at the time of the shooting, as well as after the

       shooting, due to PTSD. The State presented the testimony of Dr. Edward

       Connor (“Dr. Connor”), a licensed psychologist, who noted the differences

       between psychology used in epidemiological psychology as compared to

       clinical psychology and forensic psychology. Dr. Conner stated that PTSD is a

       mental illness and that, in Indiana, one must be a licensed psychologist to make

       a diagnosis of PTSD. Id. at 225. He also testified that Dr. Fischer did not

       follow recognized protocols that would consider reliability and validity scales or

       use a psychometric-based assessment in order to assess if the person was

       malingering or embellishing, which would be appropriate to do when, as here,

       the person had been charged with a crime. Id. at 223, 225, 226.


[11]   After taking the matter under advisement, the trial court entered a written order

       in August 2015 granting the State’s motion in limine. The court found, among

       other things, that (1) Dr. Fischer had extensive experience as a research

       psychologist but that she “has no experience or expertise as a clinical

       psychologist or a forensic psychologist[,]” and (2) although she diagnosed

       [Green] with [PTSD] due to shooting [Raymond] and due to being a victim of

       domestic violence[,]” Dr. Fischer had received no formal training regarding the

       diagnosis of PTSD and that her diagnosis of PTSD “was not done according to

       standards recognized by the scientific community.” Appellant’s App. at 1322-23.

       The trial court further observed that Dr. Fischer’s evaluation did not contain


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 7 of 33
       reliability measures and did not test for malingering, which would assess

       whether Green was embellishing or exaggerating her situation. The trial court

       also concluded that Green was attempting to admit evidence in support of an

       insanity defense and a BWS defense, both of which Green had withdrawn. The

       trial court excluded Dr. Fischer’s testimony “relating to a possible defense

       under I.C. 35-41-3-11 (Effects of Battery) . . . and any other findings or opinions

       related to a finding of PTSD.” Id. at 1327. The trial court ordered that “[o]ther

       proposed testimony of Dr. Fischer will be considered . . . following an offer to

       prove . . . and a decision by the Court as to its relevance and admissibility.” Id.

       at 1327-28.


[12]   During the two-week trial, considerable evidence was presented regarding the

       parties’ relationship. Green and Raymond first met in 2001 in Texas. At that

       time, Raymond was married to his first wife, and they had one daughter

       together, Tracey. Raymond was working as a farrier, which is a blacksmith

       who shoes and trims hooves of horses, and Raymond met Green through his

       job, as he trimmed and shoed Green’s horses. In May 2002, Raymond’s wife

       died in a bridge collapse accident, and he received approximately one million

       dollars from his wife’s estate and in a settlement from the bridge collapse. After

       his wife’s death, Green spent more time around Raymond’s ranch. In August

       2003, Green’s marriage to her then-husband was dissolved, and, in May 2004,

       Raymond and Green eloped.


[13]   In or around 2004, Raymond and Green moved to Florida and purchased real

       estate worth approximately one million dollars in an equestrian community,

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 8 of 33
       which included property for Green to train horses. Raymond and Green

       became friendly with some neighbors, and they began participating in a

       Cowboy Action Shooting Club (“the Shooting Club”). The Shooting Club held

       regular events where club members dressed-up as cowboys in period attire and

       participated in shooting competitions using replica firearms “from the old

       west.”5 Tr. at 848. Green won numerous shooting competitions.


[14]   When the money began to run out, Raymond obtained a job mowing property

       for their homeowner’s association and performed various other duties for the

       association and individual neighbors to earn additional income. Raymond and

       Green struggled financially and ultimately had to sell their property in a short

       sale. Id. 931, 1271-72. In 2012, Green moved to her parents’ property in

       Dillsboro, Indiana, and Raymond moved in with his friend in Florida and

       continued to work. Id. 960-61, 963, 1272-73. When Green was in Indiana and

       Raymond was in Florida, Raymond resumed communications with his family

       and visited Tracey and her children in Texas for the first time in eight years;

       Green was angry about Raymond’s trip to see Tracey.


[15]   After Green came to Indiana, she initiated correspondence with a man named

       George Mann (“Mann”), who had been a fellow member of the Shooting Club

       in Florida. Beginning in November 2012, Green and Mann communicated




       5
         The Shooting Club members chose aliases that were often a reference to a historical character, which names
       the members would use among themselves. Green went by the name “Dani Oakley,” and Raymond was
       called “Doc R. Green.” Tr. at 849.

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016                    Page 9 of 33
       frequently by phone, email, and other electronic means. Tr. at 856-86; State’s

       Exs. 105A, 105B. They exchanged hundreds of emails and spent hours on the

       phone together. Id.


[16]   In 2013, Green’s parents died. In late 2013, Raymond moved from Florida to

       Indiana to be with Green. They lived in a rural area, in a trailer on Green’s

       parents’ property. After coming to Indiana, Raymond obtained his commercial

       driver’s license and started to work as a trucker. When he was offered the job,

       Raymond contacted Select Quote insurance to compare prices for life insurance

       on himself with the rates being offered by his new employer. Tr. at 1061.

       Raymond Kwong (“Kwong”), the insurance agent, asked Raymond if he would

       mind if Kwong sent a complimentary quote for life insurance for Green, and

       Raymond agreed. Id. at 1062. Kwong provided quotes for policies ranging

       from $100,000 to $500,000. Raymond also desired to buy an insurance policy

       for his daughter, Tracey, to provide security for his grandchildren, but

       Raymond did not want Green to know about the policy for Tracey because he

       knew Green would be angry, so he asked Kwong not to send any documents

       with Tracey’s name on them to his home. When paperwork with Tracey’s

       name on it was inadvertently sent to the home that Green and Raymond

       shared, Green called Kwong to ask if Raymond was trying to purchase a policy

       on Tracey, and Kwong, realizing that Raymond did not want Green to know

       about it, stated, “Not to my knowledge[,]” and indicated it was a mix-up on his

       part. Id. at 1106. Evidence at trial was that Green made statements to Mann

       and others shortly before and after the murder that she was worried and was


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 10 of 33
       suspicious that Raymond was trying to obtain a large insurance policy on her

       life, which she did not want.


[17]   The State also presented at trial evidence from friends and family that Raymond

       was a kind, affable, hard-working man, and that they had not seen signs of

       abuse by Raymond toward Green. The State presented evidence that Green

       was disciplined and determined, focusing much of her time, energy, and money

       on her horses. Evidence was presented that at Green’s insistence, Raymond

       and Green shared a single cell phone while in Florida, which she solely

       controlled, and Green isolated Raymond from nearly all contact with his family

       and blocked calls from their phone numbers.


[18]   With regard to the murder, the State presented testimony from Dr. Jennifer

       Schott (“Dr. Schott”), a deputy coroner for the Hamilton County Coroner’s

       Office, who performed the autopsy on Raymond. Dr. Schott testified that

       Raymond was shot five times in the head, with four bullets entering the back of

       the head and one entering at the left temple. Tr. at 815-16. None of those five

       bullets exited Raymond’s head. Dr. Schott stated that, most of the time, a

       gunshot wound to the head would make someone instantly unresponsive. Dr.

       Schott also recovered five bullets from the torso. Raymond had been shot twice

       in the back, with the trajectory moving from back to front and downward. Id.

       at 833. Three bullets entered the left side of his torso, with one of those having

       first passed through his left arm. Dr. Schott opined that the gunshot wounds to

       the torso would not have been instantaneously fatal, and although the time of

       survivability would vary, generally a person would survive a matter of minutes,

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 11 of 33
       and speech and movement “could be possible.” Id. at 843. Dr. Schott was not

       able to determine in what order the ten shots occurred. Id. at 840. Raymond

       ultimately died from multiple injuries to the brain, lungs, diaphragm, and other

       organs.


[19]   The State’s theory was that Green shot Raymond as he slept in bed; Green’s

       position was that in the days leading up to his death, she had been in fear for

       her life, especially after learning that Raymond was seeking to take out a life

       insurance policy on her life, and that Raymond confronted her in the early

       morning hours as she left the bathroom and he was going to shoot her, but she

       took the gun and shot him, and that after she shot him, he was still attempting

       to move toward her, so she shot him five more times. Prior to trial, Dr. Schott

       had, with Green’s attorney, viewed the video in which Green, while on

       premises where the shootings occurred, described to detectives her version of

       events. Dr. Schott was asked whether Green’s version “would [] be consistent

       with the injuries and entrance wounds that [Dr. Schott] saw,” and she replied

       that Green’s scenario “was not consistent with all the injuries of the body.” Id.

       at 844. In support of its argument that she shot Raymond while he slept in bed,

       the State presented evidence that several bullets passed through the sheet and

       comforter on the bed before striking Raymond’s body. Id. at 562-66, 1194,

       1205-06.


[20]   The State also presented testimony, over Green’s objection, of ISP Sergeant

       Stephen Weigel (“Sergeant Weigel”), a crime scene investigator, concerning,

       among other things, blood spatter. Green objected on the basis that Sergeant

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 12 of 33
       Weigel did not possess the proper qualifications to interpret blood spatter.

       After allowing both parties to question Sergeant Weigel out of the jury’s

       presence, and after reviewing case law, the trial court overruled Green’s

       objection. Sergeant Weigel testified that he observed expirated blood on the leg

       of a TV stand and along the lower wall areas. Id. at 1157, 1160, 1163, 1166.

       He described expirated blood as occurring when there has been an injury to the

       mouth or throat, or there is blood in the lungs, and the blood goes into the

       person’s mouth, mixes with saliva, and is expelled by cough or gasp from the

       person’s mouth. Id. at 1158. Little bubbles form in the blood, which pop when

       the blood hits a surface and leave visible “bubble rings.” Id. Sergeant Weigel

       stated that based on where he saw the blood, Raymond would have been lying

       down and expelling blood. Id. at 1160. Sergeant Weigel also testified that

       some of the droplets found in the bedroom indicated that they were “blood in

       flight” meaning it traveled a distance in a downward position. Id. at 1163-64,

       1166.


[21]   The State also presented evidence that on two separate days in March 2014,

       Green performed a number of internet searches about what would happen if a

       person were shot in the head with a .38 caliber gun. She conducted several

       searches and visited websites about whether a shot from a .38 caliber gun would

       kill a person instantly or go straight through the head. She also read articles

       about how Gabrielle Giffords, the Congresswoman who was shot in the head,

       survived her injuries. In late April, and again on the day of the murder, Green

       also conducted internet searches to learn how to change the bank into which


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 13 of 33
       Social Security benefits are deposited. After her arrest, Green gave Mann

       power of attorney to manage her affairs. Id. at 898.


[22]   During the defense case-in-chief, Green moved to incorporate the evidence and

       arguments from the pretrial proceedings on the State’s Motion in Limine and

       renewed her request to have Dr. Fischer be permitted to testify. Id. at 1361-62.

       The trial court affirmed its earlier ruling excluding Dr. Fisher’s testimony as to

       her proposed opinions and conclusions relating to a possible defense under

       BWS and any opinions regarding PTSD. In support of her theory that

       Raymond had confronted her, and she shot him to save her own life, Green

       presented evidence that she sent a series of frantic texts to her friend in Florida,

       Mary Gombos (“Gombos”) over the course of the weekend of Raymond’s

       murder. On the day of the murder, Green told Mann that Raymond was irate

       because she had been packing his things and told him to leave, and because she

       sounded afraid, Mann suggested that she contact police, but she refused. Id. at

       869-70. Green did not testify at trial.


[23]   At the conclusion of the two-week trial, the jury found Green guilty of murder

       on September 1, 2015. Following a sentencing hearing, the trial court took the

       matter under advisement and later issued a sentencing statement, determining

       that Green planned Raymond’s death, shot him as he slept, hid his body in a

       metal box along with evidence of the shooting, and then lied to friends, family,

       and police. Appellant’s App. at 1410-14. The trial court found that Green’s

       claim that she was the victim of domestic abuse was not credible and did not

       consider this as a mitigator. Id. at 1412-13. The trial court sentenced Green to

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 14 of 33
       the Indiana Department of Correction for sixty years. Green now appeals her

       conviction and sentence.


                                       Discussion and Decision

                         I. Exclusion and Admission of Evidence
[24]   The decision to admit or exclude evidence is a matter within the sound

       discretion of the trial court. Jimerson v. State, 56 N.E.3d 117, 120 (Ind. Ct. App.

       2016), trans. denied; Cook v. State, 743 N.E.2d 563, 570 (Ind. Ct. App 2000). An

       abuse of discretion occurs where the trial court’s decision is clearly against the

       logic and effect of the facts and circumstances of the case or misinterprets the

       law. Jimerson, 56 N.E.3d at 570. We afford an evidentiary decision great

       deference upon appeal and reverse only when a manifest abuse of discretion

       denies the defendant a fair trial. Id. In determining whether an evidentiary

       ruling affected a party’s substantial rights, we assess the probable impact of the

       evidence on the trier of fact. Kirk v. State, 974 N.E.2d 1059, 1066 (Ind. Ct. App.

       2012), trans. denied.


[25]   Indiana Evidence Rule 702 governs the admission of testimony by expert

       witnesses:

               (a) If scientific, technical, or other specialized knowledge will
               assist the trier of fact to understand the evidence or to determine
               a fact in issue, a witness qualified as an expert by knowledge,
               skill, experience, training, or education, may testify thereto in the
               form of an opinion or otherwise.




       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 15 of 33
               (b) Expert scientific testimony is admissible only if the court is
               satisfied that the scientific principles upon which the expert
               testimony rests are reliable.


       Under this rule, a witness may be qualified as an expert by virtue of

       “‘knowledge, skill, experience, training, or education[,]” although only one

       characteristic is necessary to qualify an individual as an expert. Kubsch v. State,

       784 N.E.2d 905, 921 (Ind. 2003) (quoting Ind. Evidence Rule 702(a)).

       Accordingly, an individual may qualify as an expert based upon practical

       experience alone. Id. Expert testimony that consists of observations of

       someone with “specialized knowledge,” rather being based on matters of

       “scientific principles,” is not governed by the requirements of Rule 702(b). See

       Malinski v. State, 794 N.E.2d 1071, 1085 (Ind. 2003) (forensic pathologist

       permitted to testify as to his opinion that murder victim was unwilling

       participant in bondage based on his review of photographs at scene).


                                A. Exclusion of Dr. Fischer’s Testimony

[26]   Green argues that it was error for the trial court to exclude the testimony of her

       proposed expert, Dr. Fischer, and asserts that Dr. Fischer’s excluded testimony

       “bore on [her] claim of self-defense by explaining why [she] reasonably believed

       that Raymond threatened her life[,]” and it “would have discounted [the

       State’s] arguments that [Green]’s odd behavior after Raymond’s death showed

       premeditated murder.” Appellant’s Br. at 36-37. Here, at the evidentiary hearing

       on the State’s Motion in Limine, Dr. Fischer testified about her credentials and

       about her evaluation of Green. Dr. Fischer possesses a bachelor of science in


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 16 of 33
       psychology and a master’s degree in psychology. She also has a law degree and

       a Ph.D. in Psychology. At the time of the hearing, Dr. Fischer was an adjunct

       law professor at the University of Illinois, where she ran the law school’s

       domestic violence clinic, and, separately, she offered domestic violence

       consulting services.


[27]   Dr. Fischer’s evaluation of Green included reviewing pleadings and discovery

       documents from the pending litigation and meeting with Green for two eight-

       hour days. Dr. Fischer evaluated Green by using the ABOC and the DSM-56

       symptom inventory for PTSD. She opined that Green suffered from PTSD

       resulting from years of abuse, and this history of abuse and PTSD caused Green

       to have anxiety about her safety in the days leading up to the murder. Dr.

       Fischer stated that Green’s PTSD symptoms resulted both from the past

       domestic violence and from the trauma of killing Raymond. Dr. Fischer

       testified that Green entered a “traumatized state” when she encountered

       Raymond attacking her that night, and Dr. Fischer determined that, after the

       shooting, Green still believed that Raymond posed a threat to her, which is why

       she padlocked the metal box and placed it thirty feet from the home. Tr. at 205,

       208. Dr. Fischer concluded that Green did not plan Raymond’s killing because

       those who plan to kill have rehearsed the event in their mind, such that they are

       not traumatized by the killing itself.




       6
           DSM-5 appears to refer to the Diagnostic and Statistical Manual of Mental Disorders.


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016               Page 17 of 33
[28]   On appeal, Green argues that the trial court erred when it determined that Dr.

       Fischer was not qualified as an expert witness to either diagnose Green as

       having PTSD or to testify to her opinions that Green suffered from PTSD at the

       time she shot Raymond and afterward, when she hid his body. In arguing for

       her qualifications, Green notes that Dr. Fischer has testified twice in Indiana

       “on state of mind and PTSD symptoms” and on how those symptoms impacted

       a defendant’s behavior, and Dr. Fischer spent approximately six months

       studying and training on how to identify PTSD, including working with “over a

       hundred volunteers[.]” Appellant’s Br. at 38.


[29]   As the trial court found, Dr. Fischer is not licensed as a clinical or counseling

       psychologist, nor has she received training as a clinical or forensic psychologist.

       She teaches as an adjunct professor and independently offers what she

       characterizes – not as a business, or firm, or practice – but “domestic violence

       consulting services.” State’s Ex. 2-M (Fischer Dep. at 15-16). Her testimony

       was that she learned to diagnose PTSD from graduate students who were

       performing a study of the prevalence of PTSD in the community. Tr. 185-87;

       State’s Ex. 2-M (Fischer Dep. at 24-25). Dr. Fischer testified that she only

       diagnoses abuse victims who suffer from PTSD and would not feel comfortable

       diagnosing any other mental illness or PTSD resulting from other causes. Tr. at

       184-86. Dr. Fischer testified in her deposition, “I don’t diagnose for the

       purpose of treatment like a clinical or counseling psychologist would do. I

       diagnose from a research epidemiological per[sp]ective, which means from a

       research perspective.” State’s Ex. 2-M (Fischer Dep. at 19-20). She further


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 18 of 33
       explained that in some cases she does not “diagnose” but provides self-reporting

       measures to provide “sort of a self-assessment.” Id. (Fischer Dep. at 21). When

       specifically asked about whether she “diagnoses” someone for PTSD or, rather,

       only “assesses” them to see if they have the symptoms, she replied:


               Well, it’s kind of the same thing. The assessment is you go
               symptom by symptom and determine whether or not they have
               that symptom. And then there’s a rubric, essentially, that says if
               you have enough symptoms in each category, that means you
               have the disorder. So to assess is sort of to diagnose at the same
               time.


       Id. (Fischer Dep. at 22). The series of symptoms is a checklist of questions that

       comes directly from the DSM-5. Dr. Fischer acknowledged that her domestic

       violence evaluation “is not a clinical psychologist evaluation.” Id. (Fischer

       Dep. at 23).


[30]   Similar in manner to the PTSD evaluation, Dr. Fischer conducted a domestic

       violence assessment of Green, which was done using the ABOC, which Dr.

       Fischer explained was a “research instrument” consisting of a nine-page

       checklist “of pretty much every abusive behavior that one person could do to

       another.” Id. (Fischer Dep. at 28). The ABOC came from a treatise called

       “Empowering and Healing the Battered Woman,” and the ABOC “was

       intended to be used as a paper and pencil test that someone could fill out him or

       herself,” but Dr. Fischer uses it in an interview format. Tr. at 169.


[31]   Dr. Fischer’s evaluation of Green did not include reliability measures, and she

       did not conduct any assessment for malingering. Dr. Connor, the licensed
       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 19 of 33
       psychologist who testified at the hearing on the State’s Motion in Limine, stated

       that PTSD is a mental illness, that in Indiana one must be a licensed

       psychologist to diagnose someone with PTSD, and that Dr. Fischer’s

       methodology and diagnosis of PTSD was not done according to standards

       recognized by the scientific community. Based on the record before us, the trial

       court did not err in finding that Dr. Fischer was not qualified to testify to her

       opinions that, due to years of domestic abuse by Raymond, Green suffered

       from PTSD.


[32]   Furthermore, Green sought to present Dr. Fischer’s testimony to show that,

       because of domestic violence and resulting PTSD, Green was in a

       “traumatized” mental state at the time of the shooting and was unable to

       conform her behavior to the law. Green withdrew her insanity defense and did

       not submit to the mental examinations required by Indiana Code 35-41-3-6,

       and, as the trial court found, she “cannot now seek to present [that defense]

       without following the dictates of the statute.” Appellant’s App. at 1326.


[33]   Green also withdrew her BWS affirmative defense under Indiana Code section

       35-41-3-11, which applies to “circumstances when the defendant in a

       prosecution raises the issue that the defendant was, at the time of the alleged

       crime, suffering from the effects of battery as a result of the past course of

       conduct of the individual who is the victim of the alleged crime.” When a

       defendant charged with a crime involving force against a person wants to

       introduce evidence that, at the time of the alleged crime, they suffered from the

       effects of past violence by the victim of that crime, they can only do so as

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 20 of 33
provided under Indiana Code Section 35-41-3-11. Marley v. State, 747 N.E.2d

1123, 1127-28 (Ind. 2001). While BWS evidence may be admissible for other

purposes in other contexts, its use to explain the impact of past violence by the

victim upon the defendant’s behavior at the time of the crime is only admissible

as it bears upon the defenses of insanity or self-defense.7 Id. “[W]here the

defendant claims that battered women’s syndrome has affected her ability to

appreciate the wrongfulness of her conduct, she must proceed under the

insanity defense.” Id. at 1128. This includes any claim that is in the nature of

suggesting that the defendant lacked the knowledge, intent, or subjective

awareness necessary to commit the crime as a result of some abnormal mental

condition or disease. See id. at 1128 (defendant’s claim that she was in

“dissociative state” as result of BWS “is a claim that an abnormal condition []

impaired the defendant’s perception” and falls within insanity defense).

Although Green contends that she did not intend to present Dr. Fischer’s

testimony to support a claim of insanity, meaning she was not asking the jury to

find her not guilty by reason of insanity, she was offering the testimony to show

that BWS affected her ability to appreciate the wrongfulness of her conduct,

and our Supreme Court in Marley determined that Indiana Code 35-41-3-11

requires her to comply with the insanity statute. Id. at 1128.




7
 The Marley Court observed that excluding “battered women’s syndrome evidence as to a defendant’s state
of mind where the defendant has not complied with the insanity statute does not affect its admissibility for
other purposes,” such as to explain why she remained with an abusive boyfriend or spouse or to explain why
she recanted her story. Marley v. State, 747 N.E.2d 1123, 1129 (Ind. 2001).

Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016                   Page 21 of 33
[34]   Here, the trial court acted within its discretion to find that Dr. Fischer’s

       testimony – stating that she believed Green suffered from years of domestic

       abuse and, as a result, suffered from PTSD and was in a “traumatized” state at

       the time of the crime – was in the nature of opinions in support of an insanity

       defense. The trial court determined, and we agree, that Green “cannot [] admit

       evidence of this defense through this proposed expert witness after withdrawal

       of this exact defense . . . relating to the ‘effects of battery.’” Id. at 1327. Based

       on the record before us, we conclude that the trial court did not commit

       reversible error when it excluded the proposed testimony of Dr. Fischer.8


[35]   In its order granting the State’s Motion in Limine, the trial court stated that it

       would consider at trial the relevance and admissibility of “other proposed

       testimony of Dr. Fischer,” presumably testimony concerning domestic violence

       and its impacts, following an offer to prove. Appellant’s App. at 1327-28; Tr. at

       1363. To the extent some testimony of Dr. Fischer may have been admissible,

       Green did not request admission of such limited testimony or make an offer to




       8
         Though it was not the basis of the trial court’s decision to exclude Dr. Fischer’s testimony, the State asserts
       that it was proper for the trial court to exclude her testimony because it would have consisted entirely of what
       Green had told her and was hearsay because Green did not testify and other witnesses, the State claims, did
       not provide adequate factual foundation for consistent and long-lasting abuse to which Dr. Fischer would
       testify. “Without the factual history of alleged domestic violence that formed the foundation for Dr. Fisher’s
       opinions, any testimony she provided would have been confusing and unfairly prejudicial. Admitting expert
       testimony without a factual basis for the jury to assess could only serve to unfairly bolster [Green]’s claims by
       giving the implicit approval of an ‘expert.’ The testimony would also be of such limited probative value that
       it must be excluded.” Appellee’s Br. at 22-23. Having resolved the issue on other bases, we do not address the
       State’s arguments.

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016                       Page 22 of 33
       prove as to what that other testimony would be. Thus, any issue in that regard

       is waived. Carter v. State, 932 N.E.2d 1284, 1287 (Ind. Ct. App. 2010).


                                B. Admission of Blood Spatter Evidence

[36]   Green argues that Sergeant Weigel was not qualified as a blood spatter expert,

       and the trial court committed reversible error by admitting his testimony

       concerning blood spatter. Green explains that, although Sergeant Weigel,

       through his work experience and blood spatter training, may have been

       qualified to collect and catalog evidence at the scene, he was not qualified to

       interpret or “attach meaning” to the blood droplets found at the scene and

       testify to those opinions at trial. Appellant’s Br. at 48-49. In particular, Green

       argues that it was error to permit Sergeant Weigel to testify about the position

       of Raymond’s body – i.e., that Raymond was lying down when he expelled

       blood – based on droplets and expirated blood found at the scene.


[37]   At trial, Green posed repeated objections to Sergeant Weigel’s qualifications

       and his ability to testify regarding his interpretation of evidence found at the

       crime scene. Both parties were permitted to question Sergeant Weigel outside

       of the jury’s presence. Testimony was elicited that Sergeant Weigel had been a

       crime scene investigator for approximately ten years, that during his experience

       processing crime scenes he dealt with blood spatter, and in 2013 he received the

       required two weeks (eighty hours) of training on blood spatter evidence, but as

       of trial, he had not yet taken the required test. The State asserted that it was not

       seeking to have Sergeant Weigel testify as an expert, but rather a skilled

       witness. Consistent with that, Sergeant Weigel acknowledged that he was not
       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 23 of 33
       yet qualified as an expert, testifying that ISP had two blood spatter experts on

       staff, one of whom was Dean Marks (“Marks”). Sergeant Weigel testified that,

       after he had viewed the scene of Raymond’s shooting, he formed opinions

       about the blood droplets, and he thereafter spoke with Marks about those

       opinions and that Marks confirmed those findings. After receiving counsels’

       arguments, the trial court, relying on Grinstead v. State, 684 N.E.2d 482, 487

       (Ind. 1997), found that Sergeant Weigel satisfied the requirements to present the

       proferred testimony regarding the blood spatter. Tr. at 1151-52. We find that

       Grinstead supports the trial court’s ruling.


[38]   In Grinstead, the defendant was convicted of, among other things, murder.

       During trial, the State introduced testimony from a police officer about blood

       spatter found on Grinstead after the crime, in order to rebut Grinstead’s claim

       that he was not near the victim at the time of that the victim was beaten with a

       tire iron. Grinstead, 684 N.E.2d. at 486. The officer testified that the blood

       spots on Grinstead’s person were “medium impact” spattering, which allowed

       the jury to infer that Grinstead was closer to the victim than he had claimed.

       Id. Grinstead was convicted, and on appeal, he claimed that the officer lacked

       sufficient skill, knowledge, and experience to give expert evidence on blood

       spatters. Id.


[39]   After recognizing that blood spatter evidence is beyond the knowledge of the

       average juror and was a proper topic for expert testimony, the Grinstead Court

       addressed whether the officer who testified was qualified to do so. Id. at 487.

       The officer had received a two-week training course on the subject. The Court

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 24 of 33
       determined that the officer demonstrated sufficient expertise in the subject to

       testify as an expert, even though he did not possess qualifications that rose to

       the level of a serologist. Id. The Grinstead Court concluded that the officer’s

       training and experience were sufficient to permit him to explain the types of

       impacts that cause the different patterns of blood spatter and that any deficiency

       in the specificity or detail of the officer’s testimony was an appropriate subject

       for cross-examination. Id. We find that, here, the trial court did not err in

       allowing Sergeant Weigel to testify regarding the blood spatter.


[40]   Furthermore, even if Green is correct and Sergeant Weigel’s testimony was

       erroneously admitted, we find that any error was harmless. The erroneous

       admission of evidence is deemed harmless unless such error affected the

       substantial rights of the parties. Ind. Trial Rule 61; Ind. Evidence Rule 103(a).

       In determining whether reversal is mandated, we must assess the probable

       impact of the improper evidence upon the jury. Greenboam v. State, 766 N.E.2d

       1247, 1256 (Ind. Ct. App. 2002), trans. denied. The erroneous admission of

       evidence is harmless when there is substantial independent evidence of guilt

       such that it is unlikely that the erroneously admitted evidence played a role in

       the conviction. Id. However, reversal is warranted if the record as a whole

       reveals that the improper evidence was likely to have had a prejudicial impact

       on the average juror such that it contributed to the verdict. Id.


[41]   Here, Green’s argument is that the position of Raymond’s body “played a large

       role in this conviction” because “[t]he positioning of the blood droplets on the

       lower part of the wall coupled with the expirated blood on the floor,” to which

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 25 of 33
       Sergeant Weigel testified, “seemed to show Raymond had been lying down and

       rolled onto the floor where he died. This version of events undermined

       [Green]’s defense.” Appellant’s Br. at 49-50; see also Reply Br. at 19 (“This

       version of the evidence undermined [Green]’s defense that Raymond had been

       upright and attacking when she fired the gun.”).


[42]   Contrary to Green’s claim, Sergeant Weigel’s testimony did not contradict or

       undermine her defense. Sergeant Weigel identified a pool of blood as being

       caused by saturation, certain blood spots as being caused by blood in flight, and

       other spots as expirated blood. He testified that certain blood spots on the leg

       of the television stand in the bedroom were expirated blood, which he

       explained as being blood expelled from the mouth after the blood has mixed

       with and been diluted by saliva and occurs when a person has injury to their

       lungs, throat, or mouth and then the person gasps or coughs. Tr. at 1157-58.

       With regard to the specific expirated blood spots on the furniture leg, Sergeant

       Weigel testified that certain spots would have hit the furniture leg when

       Raymond was lying on the floor. Id. at 1160. Sergeant Weigel did not testify

       that Raymond was in bed and rolled to the floor, as Green suggests. Rather,

       Sergeant Weigel’s testimony was that Raymond was on the floor when he

       expelled blood. This distinction makes a difference, as testimony that

       Raymond expirated blood while on the floor did not “undermine” Green’s

       version of events, which was that Raymond was coming at her, she pushed him

       back on the bed and shot him, and that because he lunged at her again, she shot

       him again. Green did not allege that Raymond was never on the floor after he


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 26 of 33
       was shot, and considerable forensic evidence showed that he was.

       Furthermore, Green states in her brief, “As Raymond slid off the bed, he kept

       whispering that she needed to die.” Appellant’s Br. at 31 (citing Tr. at 1301).

       That is, she acknowledges that Raymond slid off the bed to the floor. We do

       not find that the trial court’s decision to admit Sergeant Weigel’s testimony was

       reversible error.


                  II. Consideration of Green’s Proffered Mitigator
[43]   Green argues that the trial court abused its discretion when it sentenced her by

       failing to consider evidence of domestic abuse. Sentencing decisions are within

       the discretion of the trial court and are reviewed on appeal for an abuse of

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

       875 N.E.2d 218. “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.

       (quoting K.S. v. State, 849 N.E.2d 538, 544 (Ind. 2006)). A trial court may

       abuse its discretion (1) by failing to issue a sentencing statement or (2) by

       issuing a sentencing statement that bases a sentence on reasons that are not

       clearly supported by the record; omits reasons both advanced for consideration

       and clearly supported by the record; or includes reasons that are improper as a

       matter of law. Id. at 490-91.


[44]   Here, Green argues that the trial court abused its discretion when it “refused” to

       recognize as a mitigating circumstance that she was a victim of domestic abuse


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 27 of 33
       by Raymond. Appellant’s Br. at 32. The trial court is not required to find

       mitigating factors, nor is it obligated to accept as mitigating each of the

       circumstances proffered by the defendant. Ashby v. State, 904 N.E.2d 361, 363

       (Ind. Ct. App. 2009). The relative weight or value assignable to reasons

       properly found, or those that should have been found, is not subject to review

       for abuse of discretion. Benefield v. State, 904 N.E.2d 239, 247 (Ind. Ct. App.

       2009), trans. denied.


[45]   A trial court abuses its discretion in sentencing if it overlooks “substantial”

       mitigating factors that are “clearly supported by the record.” Anglemyer, 868

       N.E.2d at 491. The burden is on the defendant to establish that the mitigating

       evidence is both significant and clearly supported by the record. Corbett v. State,

       764 N.E.2d 622, 630 (Ind. 2002). In support of her position that the trial court

       failed to consider evidence of domestic abuse, Green argues that several

       witnesses testified to Raymond’s dark, angry side. For instance, three

       witnesses, Mann, Gombos, and Green’s brother, Todd Steinke (“Steinke”),

       testified that Green had shared that on one occasion Raymond grabbed Green’s

       shirt and pushed her against a wall. Tr. at 868, 913, 928. Another witness,

       Frank Conway, testified that he saw Raymond express anger, in a situation

       unrelated to Green. A Florida mail carrier, Norma Jean Schneider

       (“Schneider”) testified by deposition that on two or three occasions she saw

       what she believed was Green having a blackened right eye. She also saw Green

       have a splint on her finger more than once, and once Green told Schneider that

       the injury was the result of a horse injury. Schneider saw Green wearing an


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 28 of 33
       arm sling on one occasion. Id. at 1371, 1385. She did not discuss the eye or

       arm injuries with Green or know how she received them.


[46]   The State maintains that it presented testimony of “numerous witnesses,”

       which included friends and family, who contradicted Green’s claims that

       Raymond was a violent, controlling, and abusive person and stated that

       Raymond was a gentle person, they never saw any signs of abuse, Green did

       not tell them of any abuse, and they did not see any injuries on Green’s person.

       Appellee’s Br. at 32 (citing testimony of Betty Green, Steinke, Gombos, Tami

       Kayworth, Jack Little, Robert Stevens, Richard Berg, and Laurelle Balog).

       Most described Green as smart, focused, pleasant but not warm, disciplined,

       and controlling of Raymond. Based on the record before us, Green has failed

       to show that her alleged mitigating evidence is both significant and clearly

       supported by the record.


[47]   Green claims that, when sentencing her, the trial court “ignor[ed]” evidence

       showing Green was a victim of domestic violence. Appellant’s Br. at 34; Reply

       Br. at 20. In its sentencing order, the trial court expressly discussed Green’s

       claims of domestic violence:

               UNPROVEN ALLEGATIONS OF DOMESTIC ABUSE


               The Court finds that defendant contended that the crime
               committed in this case was the result of domestic abuse
               perpetrated on her by the victim. The Court finds that, in
               reviewing the record of these proceedings, no evidence was
               presented at trial to support a contention that the victim
               perpetrated domestic abuse on the defendant. The Court finds
       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 29 of 33
               that some statements were made by the defendant to Dr. Karla
               Fischer (her opinions and testimony were excluded by the
               Court). The Court finds that these statements were not
               supported by any corroborating evidence and, due to flaws in the
               nature of Dr. Fischer’s methodology, were not subject to testing
               for malingering to judge the credibility of Defendant’s
               statements. (see Order Granting State’s Motion in Limine to
               Exclude Testimony of Dr. Karla Fischer). The Court also notes
               that the defendant withdrew her defense under the “Effects of
               Battery” statute (Battered Woman Syndrome). The Court finds no
               support for Defendant’s allegations of abuse from witnesses called in this
               trial either by the State of Indiana or the Defense.


       Appellant’s App. at 1412-13 (emphasis added).


[48]   Although the trial court’s discussion may have been in the context of addressing

       (and rejecting) Green’s self-defense claim, and not in the context of mitigators

       and aggravators, it reflects the trial court’s view that it found Green’s claims

       that she suffered from domestic abuse to be not credible and not supported by

       evidence. Thereafter, after the above remarks concerning domestic abuse, the

       trial court addressed mitigating factors and recognized as a mitigator that Green

       had no criminal history, although its consideration was tempered by the fact

       that “her first criminal offense is a murder,” which the trial court described

       elsewhere in its sentencing statement as “an execution.” Id. at 1411, 1413. To

       the extent that Green’s argument is that the trial court overlooked the domestic

       abuse mitigator, it did not. Rather, it addressed the domestic abuse claim and

       gave it no weight, and the relative weight or value assignable to reasons

       properly found is not subject to review for abuse of discretion. Benefield, 904



       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016    Page 30 of 33
       N.E.2d 247. We conclude that the trial court did not abuse its discretion when

       it did not find the claimed domestic abuse to be mitigating.


                                III. Appropriateness of Sentence
[49]   Green argues that her sixty-year sentence is inappropriate. “This court has

       authority to revise a sentence ‘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.’” Delao v. State, 940 N.E.2d

       849, 853 (Ind. Ct. App. 2011) (quoting Ind. Appellate Rule 7(B)), trans. denied.

       “Although Indiana Appellate Rule 7(B) does not require us to be ‘extremely’

       deferential to a trial court’s sentencing decision, we still must give due

       consideration to that decision.” Patterson v. State, 909 N.E.2d 1058, 1062-63

       (Ind. Ct. App. 2009). As an initial guide to determining whether the sentence

       imposed was inappropriate, we assess the trial court’s recognition or non-

       recognition of aggravators and mitigators. Caraway v. State, 977 N.E.2d 469,

       472 (Ind. Ct. App. 2012), trans. denied. Under appropriateness review, the

       question is not whether another sentence would be more appropriate; rather,

       the question is whether the sentence imposed is inappropriate. Williams v. State,

       997 N.E.2d 1154, 1165 (Ind. Ct. App. 2013). The defendant bears the burden

       of persuading this court that his sentence is inappropriate. Caraway, 977 N.E.2d

       at 472.


[50]   Regarding the nature of the offense, the advisory sentence is the starting point

       the Indiana Legislature has selected as an appropriate sentence for the crime


       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 31 of 33
       committed. Childress v. State, 848 N.E.2d 1073, 1081 (Ind. 2006). Under

       Indiana Code section 35-50-2-3, a person who commits murder shall be

       imprisoned for a fixed term of between forty-five and sixty-five years, with the

       advisory sentence being fifty-five years. Green was sentenced to sixty years.


[51]   As to the nature of the offense, Green shot Raymond five times, left the room,

       reloaded the revolver, and returned to shoot him an additional five times. She

       stuffed his body, along with scraps of bloodied carpet and other cleaning

       remnants, into a metal box, which she padlocked. The trial court noted the

       nature and frequency of Green’s contacts with Mann, as well as her anger over

       the life insurance issue, and it found that the evidence established a “clear and

       deliberate intent to kill” Raymond, characterizing the death as “an execution.”

       Appellant’s App. at 1411. The nature of Green’s offense does not warrant a

       revision of her sentence.


[52]   Turning to her character, Green lied to friends, family, and police after

       Raymond’s death concerning his whereabouts, claiming among other things,

       that their dog had killed Raymond. Then, after police located his body, she

       admitted to police that she had shot and killed Raymond, but she provided a

       version – that Raymond was out of bed and threatening to shoot Green – which

       the trial court found to be not consistent with the forensic evidence:


               [C]onclusive forensic evidence shows that the victim [] was in
               bed, under the sheet and comforter, when he was shot. No other
               reasonable explanation exists since all shots remained in the
               victim’s body and shots were determined to have passed through
               the sheet and comforter prior to striking his body.

       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 32 of 33
       Id. at 1411 (emphasis in original). Green at no time exhibited remorse as she

       spoke to police and others. Green has not shown that her character warrants

       revision of her sentence. We do not find that her sixty-year sentence is

       inappropriate.


[53]   Affirmed.


       May, J., and Crone, J., concur.




       Court of Appeals of Indiana | Opinion 58A04-1511-CR-2008 | December 16, 2016   Page 33 of 33
