                                                                        FILED
                                                                    Jul 17 2020, 8:35 am

                                                                        CLERK
                                                                    Indiana Supreme Court
                                                                       Court of Appeals
                                                                         and Tax Court




ATTORNEY FOR APPELLANT                                      ATTORNEYS FOR APPELLEE
Bruce W. Graham                                             Curtis T. Hill, Jr.
Graham Law Firm P.C.                                        Attorney General of Indiana
Lafayette, Indiana
                                                            Jesse R. Drum
                                                            Deputy Attorney General
                                                            Indianapolis, Indiana


                                             IN THE
    COURT OF APPEALS OF INDIANA

Patrick M. Elliott,                                         July 17, 2020
Appellant-Defendant,                                        Court of Appeals Case No.
                                                            19A-CR-2498
        v.                                                  Appeal from the Tippecanoe
                                                            Superior Court
State of Indiana,                                           The Honorable Randy J. Williams,
Appellee-Plaintiff.                                         Judge
                                                            Trial Court Cause No.
                                                            79D01-1708-MR-3



Sharpnack, Senior Judge.




Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020                           Page 1 of 31
                                             Statement of the Case
                                                                                      1
[1]   Following a jury trial, Patrick Elliott was convicted of murder, a felony, and
                                                                2
      false informing as a Class A misdemeanor. He then admitted to the sentencing
                                                                          3
      enhancement of using a firearm to commit the murder. The trial court

      sentenced Elliott to an aggregate term of seventy-five years executed in the

      Indiana Department of Correction. He appeals his conviction and sentence.

      We affirm.


                                                      Issues
[2]   Elliott presents two issues for our review, which we restate as:


                 1.       Whether the trial court erred in admitting the testimony of
                          Elliott’s pastor in contravention of the clergymen privilege;
                          and


                 2.       Whether his sentence is inappropriate in light of the nature
                          of the offenses and the character of the offender.


                                   Facts and Procedural History
[3]   In 1999, Elliott married Donita who brought two children to the marriage.

      Three years later, Donita was diagnosed with bipolar disorder and generalized




      1
          Ind. Code § 35-42-1-1(1) (2017).
      2
          Ind. Code § 35-44.1-2-3(d)(1) (2016).
      3
          Ind. Code § 35-50-2-11 (2016).


      Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020               Page 2 of 31
      anxiety disorder and was prescribed medication for her mental health issues.

      During the course of their marriage, the couple experienced marital problems,

      which Elliott attributed to Donita’s mental health issues and her “over the top

      or excessive” “reactions to normal day to day challenges[.]” Tr. Vol. 4, p. 97.

      In 2009, Elliott petitioned for legal separation; however, the couple reconciled.

      In 2015, the couple informally separated, and Donita moved out of the marital

      home. However, the couple again reconciled, and Donita returned to the

      home.


[4]   In the days leading up to the murder, which occurred in the early morning

      hours of August 8, 2017, Elliott and Donita exchanged text messages about

      their troubled relationship and Donita’s mental health issues, and Elliott

      explored having Donita committed to a mental hospital. On August 3, Donita

      sent a text message to Elliott stating that she was not going to any appointments

      and that she wanted a divorce. Elliott replied: “You love me, I love you. . . .

      Your bipolar lashes out to cause me pain[.]” Ex., Def.’s Ex. A, p. 200.      On

      August 4, Donita texted to Elliott: “F*** you, go take a bath and hold your

      head under[;]” and “F*** off, do you want me to take the gun to your head[?]”

      Id. at 201. That evening, Elliott contacted a mental health hotline and

      communicated with a crisis counselor regarding Donita’s behavior.


[5]   On August 5, around 2:00 a.m., Donita texted Elliott, accusing him of placing

      her in a chokehold. In his responses, Elliott intimated that Donita had slipped

      and that he had not placed her in a chokehold but, instead, had prevented her

      from falling and hitting her head. Approximately thirty minutes later, Elliott

      Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 3 of 31
      traveled to the Tippecanoe County Sheriff’s Department (TCSD) and talked

      with Lieutenant Brian Lowe about the process for having his wife committed to

      a psychiatric or mental hospital. The lieutenant explained the process and then

      asked if Elliott needed a wellness check for Donita. Elliott declined.


[6]   On the morning of August 7, Elliott opened a separate bank account in his

      name only and transferred $10,000 from an account that he shared with Donita

      to the new account. Elliott and Donita exchanged heated text messages

      throughout the day. Donita texted that she was moving out and needed the

      money.


[7]   At approximately 4:30 p.m. on August 7, Elliott again traveled to the TCSD,

      this time speaking with Officer Steven Stonerock about having Donita

      committed. Officer Stonerock asked Elliott if he wanted an officer to perform a

      wellness check on his wife, but Elliott refused. However, approximately one

      hour later, Elliott called the TCSD and asked for a wellness check for Donita.


[8]   When the sheriff’s deputies arrived, Elliott met them in his driveway. The

      deputies spoke with Elliott first and then with Donita’s adult daughter Ashley,

      who, at the time, was living in a pole barn that was located on the property.

      After speaking with Elliott and Ashley, the deputies entered the home to speak

      with Donita. The deputies noticed that the kitchen appeared to have been

      ransacked. When the deputies first encountered Donita, she was sitting in her

      living room, calmly watching television. However, when she found out that

      Elliott had asked the deputies to perform a wellness check, she became


      Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020        Page 4 of 31
       increasingly angry that the officers were in her home and “attempting to get her

       to go to the hospital.” Tr. Vol. 3, p. 207. Donita directed vulgar language at

       the deputies, and she called 911 several times in an effort to have the deputies

       removed from her home. Elliott called Donita’s treating psychiatrist; however,

       the consensus of the deputies and the psychiatrist was that the requirements for

       the involuntary commitment of Donita had not been met.


[9]    Donita left while the deputies were still at her house. Elliott then asked the

       deputies “something to the effect [of] what am I supposed to do wait until she

       attacks me?” Id. at 218. One of the deputies told Elliott that he could defend

       himself. The other deputy suggested to Elliott that, if Donita returned, he could

       record the encounter—“get some sort of evidence that we can sink our teeth

       into to substantiate one side or the other.” Id. at 248.


[10]   At some point after Donita and the deputies had left the house, Elliott retrieved

       a handgun from his car, brought it into the house, and hid it in the buffet next

       to his recliner. He called one of the deputies at 12:15 a.m., on August 8, to

       thank him for coming earlier. The deputy returned Elliott’s call around 12:42

       a.m., but the call went to voicemail.


[11]   After leaving her home, Donita checked into a motel room and ordered dinner.

       Around midnight, she texted Elliott to tell him she needed to pick up her

       belongings from the house. Elliott was in the garage when Donita entered the

       back door of their house at 12:27 a.m. At 12:49 a.m., Elliott entered the house




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020        Page 5 of 31
through the back door and used his cell phone to record the following

interaction with his wife:


        Elliott: This would be a whole lot easier to understand if you
        could tell me when are you gonna get help. When are you gonna
        get help?


        Donita: What?


        Elliott: When are you gonna get help?


        Donita: I’m not. I’m off meds. I’m f***in’ done. You ruined it.


        Elliott: And, you’re fine?


        Donita: I’m fine.


        Elliott: You’re fine.


        Donita: I just threw four hundred f***in’ dollars’ worth of pills
        down the drain.


        Elliott: And?


        Donita: Leave me the f*** alone. Go to the other room like we
        agreed. You’d take the bedroom and I would take the couch.
        Get out.


        Elliott: I think I want the couch.


        Donita: No, I’m taking the couch.


Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020           Page 6 of 31
        Elliott: I’m gonna be up earlier, and . . .


        Donita: I don’t give a f***. Get out.


        Elliott: [Your grandchild] won’t be here.


        Donita: No sh**. You f***in’ ruined that too.


        Elliott: I did that? I ruined [the grandchild]?


        Donita: Get the f*** out.


        Elliott: I’m gonna sleep in the living room.


        Donita: No you’re not.


        Elliott: Like I have been.


        Donita: No you’re not.


                 [Loud thud, followed by a noise]


        Elliott: What are you doing?


        Donita: Get the f*** out.


                 [Loud thud]


        Elliott: What are you doing?


        Donita: It’s my chair. Get the f*** out.

Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020   Page 7 of 31
                 [Sound similar to an object being dropped]


        Donita: Shoot me. I don’t care, give . . . I don’t give a f***.
        Shoot me.


                 [Gunshot, followed by loud thud]


        Donita: Please help. Please help.


                 [Loud thud]


        Elliott: Nope.


        Donita: Please help.


        Elliott: Nope.


        Donita: Please help.


        Elliott: There’s your f***in’ knife. F*** you.


                 [Banging sound]


        Donita: Please help.


        Elliott: No.


        Donita: Goddammit, my phone’s in the truck. Please help.


        Elliott: F*** you.



Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 8 of 31
               Donita: I love you, Goddammit.


               Elliott: I will help when I am f***ing done watching you die.


               Donita: Please help me.


               Elliott: I’m not helping you, Donita. You’re f***in’ Satan. You
               hate my f***in’ guts.


               Donita: No I don’t.


               Elliott: You want me to f***in’ die.


               Donita: No I don’t.


               Elliott: I am not helping you.


               Donita: I love you, Goddammit.


               Elliott: No you don’t.


               Donita: Please help me.


               Elliott: Somebody’ll be here to help ya.


       Conf. Ex., State’s Ex. 1.


[12]   At 12:54 a.m., Elliott called 911. Elliott stated that he had just shot his wife.

       He told the dispatcher that he “knew it was gonna’ come to violence” and that

       his wife stormed in the door. Conf. Ex., State’s Ex. 2. He later said, “We knew


       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020          Page 9 of 31
       it was comin’ to this. The officers knew. Everybody knew.” Id. Elliott first

       told the dispatcher that he thought his wife was “okay” and was breathing and

       snoring; he was not sure where, or even if, his wife had been shot; and he did

       not see any blood. Id. However, later in the conversation, Elliott, crying, told

       the dispatcher that he did not think his wife was breathing.


[13]   As the 911 call continued, the dispatcher asked if Donita had any weapons, and

       Elliott replied that his wife had a knife and that it was lying next to her body.

       The dispatcher attempted to instruct Elliott in rendering medical assistance to

       Donita, but Elliott indicated that he was unsure how to assist her. Elliott told

       the dispatcher that he knew his wife was going to try to kill him because she

       “said she was gonna[,]” and that “it all happened so fast.” Id. The dispatcher

       asked Elliott if he could perform chest compressions on Donita. Elliott

       answered in the affirmative and told the dispatcher that he was performing the

       compressions. Approximately nine minutes into the 911 call, the dispatcher

       told Elliott to exit the house with his hands up for the benefit of the responding

       authorities.


[14]   The police and medics arrived at the scene, and Donita was transported to the

       hospital. She arrived alive but died later that morning from a gunshot wound to

       her chest.


[15]   At approximately 5:00 a.m. the morning of the shooting, Elliott was

       interviewed by the police at the police station. He was not under arrest at the

       time. When first interviewed by the police, he said that Donita came at him


       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 10 of 31
       with a knife while he was lying on the couch, and he shot her in self-defense.

       At a second interview with the police that occurred two days later, on August

       10, Elliott again claimed self-defense, but told the detective that he was sitting

       in the recliner when Donita attacked him with the knife.


[16]   A few days later, the police recovered Elliott’s cell phone and discovered that it

       contained an audio recording of the shooting. The recording, along with other

       evidence found at the scene of the shooting, contradicted Elliott’s claim that he

       shot his wife in self-defense. The police then interviewed Elliott for a third time

       on August 14. During the interview, the police played for Elliott the audio

       recording from his cell phone. Elliott was hearing the recording for the first

       time. After the recording was played for him, Elliott admitted that Donita had

       not attacked him with a knife but that he had planted a knife after shooting her.

       Elliott was charged with murder and two counts of false informing as Class A

       misdemeanors.


[17]   During their marriage, Elliott and Donita were members of the Reformed

       Presbyterian Church of Lafayette. They had joined the church around 2007.

       Pastor Keith Evans was Elliott’s pastor for six years and Donita’s for five, and

       during his tenure at the church, the pastor counseled with the couple “half a

       dozen to a dozen times.” Tr. Vol. 3, p. 83. Sometime after the shooting but

       before August 14, Elliott sent a letter to the church congregation, explaining

       that he shot his wife in self-defense because she attempted to kill him with a

       knife. Elliott asked Pastor Evans to share the letter with local media, and

       Pastor Evans did so.

       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 11 of 31
[18]   Pastor Evans visited Elliott in jail several times. Elliott initially told the pastor

       that Donita had attacked him with a knife and that he needed to defend

       himself. However, at a subsequent meeting, Elliott admitted to his pastor that

       he had lied about shooting his wife in self-defense and that he had planted the

       knife.


[19]   Prior to the start of his trial, Elliott moved to suppress all statements made to

       the pastor, arguing that they were inadmissible, privileged communications.

       The trial court denied Elliott’s motion on December 21, 2018. The suppression

       issue was certified for interlocutory appeal in February 2019; however, this

       Court declined to accept jurisdiction over the appeal. On July 11, 2019, the

       State dismissed one count of false informing against Elliot.


[20]   A five-day jury trial commenced on July 12, 2019. At trial, Elliott testified that

       Donita had attacked him with the knife and that he shot her in self-defense.

       The State maintained that Elliott was not acting in self-defense and that he had

       planted the knife to make it appear as though he shot Donita in self-defense.

       Pastor Evans testified over Elliott’s objection that Elliott admitted to him that

       he had planted the knife at the scene of the shooting.


[21]   At the conclusion of the trial, the jury found Elliott guilty of murder and false

       informing. In the second phase of his trial, Elliott waived his right to have the

       jury consider the firearm enhancement, and he admitted to the enhancement.

       On September 26, 2019, the trial court sentenced Elliott to sixty years for

       murder, enhanced by fifteen years because he used a firearm to commit the


       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020           Page 12 of 31
       offense, and to a concurrent term of one year for false informing, for a total

       executed sentence of seventy-five years. He now appeals. Additional facts will

       be provided as necessary.


                                     Discussion and Decision
                                         I. Clergymen Privilege
[22]   Elliott argues that the trial court improperly permitted Pastor Evans to testify to

       the incriminating statement that Elliot made to the pastor. Pastor Evans visited

       Elliott three times while Elliott was in jail awaiting trial. During the second

       visit, Elliott told the pastor that he planted the knife at the scene of the shooting.

       According to Elliott, the incriminating statement he made to his pastor was

       protected by the clergymen’s privilege under Indiana Code section 34-46-3-

       1(3)(A) and (B) (1998), and the State should not have been allowed to introduce

       the statement from the pastor during Elliott’s trial.


[23]   The State argues initially that the pastor, “not Elliott, held the clergymen

       privilege[,]” and “the privilege is [the clergyman’s] alone to exercise or waive.”

       Appellee’s Br. pp. 14, 15. We reject that argument.


[24]   The clergymen privilege is a subsection within the “Privileges of Attorneys,

       Physicians, Clergymen, and Spouses” statute, codified at Indiana Code section

       34-46-3-1, which provides:


               Except as otherwise provided by statute, the following persons
               shall not be required to testify regarding the following
               communications:

       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020          Page 13 of 31
               (1) Attorneys, as to confidential communications made to them
               in the course of their professional business, and as to advice given
               in such cases.


               (2) Physicians, as to matters communicated to them by patients,
               in the course of their professional business, or advice given in
               such cases.


               (3) Clergymen, as to the following confessions, admissions, or
               confidential communications:


                        (A) Confessions or admissions made to a clergyman in the
                        course of discipline enjoined by the clergyman’s church.


                        (B) A confidential communication made to a clergyman in
                        the clergyman’s professional character as a spiritual
                        adviser or counselor.


               (4) Husband and wife, as to communications made to each other.


[25]   In Glover v. State, 836 N.E.2d 414 (Ind. 2005), the question before our supreme

       court was whether, regarding a sham marriage, the trial court could require the

       wife to testify to confidential communications between her and her husband.

       The Court held that the “marital privilege prevents a court from requiring a

       spouse to testify as to confidential marital communications, but does not bar the

       spouse from testifying if the spouse chooses to do so.” Id. at 422 (emphasis

       added). However, the Court also discussed the other privileges listed under

       Section 34-46-3-1 and explained that the professional privileges and the marital




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 14 of 31
       privilege were “qualitatively different” from one another. Id. at 420. The Court

       expounded as follows:


               [T]he statutory language also produces different results for the
               marital privilege than it does for the other privileges found in the
               same section. The marital privilege in Indiana provides that a
               court “shall not [require]” one spouse to testify against the other.
               I.C. § 34-46-3-1(4). As a matter of ordinary English, this permits
               a willing spouse to testify. Other privileges (attorney/client,
               physician/patient, priest/penitent) appear in the same section of
               the Indiana Code and the same linguistic point applies to them.
               But in the case of the attorney and the physician, each is bound
               by a formal obligation of the profession to keep the confidences
               of the client. . . . Many clerics are similarly bound. . . . These
               obligations create a right in the client to demand confidentiality, and the
               court cannot “require” testimony. There is no corresponding set
               of ethical and disciplinary rules for the marital relationship.


       Id. at 421-22 (internal citations omitted) (emphasis added).


[26]   Thus, the purpose of the privileges statute is to prevent certain statements by a

       person, here the defendant, “made to” an attorney, physician, or clergyman

       from being used in evidence against the defendant. See Ind. Code § 34-46-3-1.

       We place greater value on protecting such statements in such relationships than

       on their use as evidence. In an opinion issued by the United States Supreme

       Court, that critiqued an archaic and unduly expansive rule that permitted a

       defendant to exclude from evidence any adverse spousal testimony but referred

       favorably to several privileges by analogy, among them the “priest-

       penitent” privilege, the Court stated:



       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020                Page 15 of 31
               The privileges between priest and penitent, attorney and client,
               and physician and patient . . . are rooted in the imperative need
               for confidence and trust. The priest-penitent privilege recognizes
               the human need to disclose to a spiritual counselor, in total and
               absolute confidence, what are believed to be flawed acts or
               thoughts and to receive priestly consolation and guidance in
               return.


       Trammel v. United States, 445 U.S. 40, 51, 100 S. Ct. 906, 913, 63 L. Ed. 2d 186

       (1980).


[27]   Not all statements are protected, only those that qualify under the statute. If, as

       the State argues, the privilege to prevent use of a statement belongs only to the

       clergyman, there is no sure protection for a defendant. The issue here is not

       whether the pastor is willing to testify, but whether the incriminating statement

       Elliott made to him is a confession or admission made in the course of

       discipline under Subsection 34-46-3-1(A), or a confidential communication

       under Subsection (B), such that the pastor should not have been permitted to

       testify to the statement over Elliott’s objection. We first set forth the standard

       of review and then address these issues in turn.


                                             A. Standard of Review

[28]   The decision to admit or exclude evidence is within the trial court’s sound

       discretion and that decision is afforded a great deal of deference on appeal.

       Bacher v. State, 686 N.E.2d 791, 793 (Ind. 1997). The decision whether to

       admit evidence will not be reversed absent a showing of manifest abuse of a

       trial court’s discretion resulting in the denial of a fair trial. Allen v. State, 813


       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020             Page 16 of 31
       N.E.2d 349, 361 (Ind. Ct. App. 2004), trans. denied. An abuse of discretion

       occurs where the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before it. Zawacki v. State, 753 N.E.2d 100, 102

       (Ind. Ct. App. 2001), trans. denied. Regarding the clergymen privilege, this

       privilege must be strictly construed because of its statutory derivation. Mullins

       v. State, 721 N.E.2d 335, 338 (Ind. Ct. App. 1999), trans. denied.


                     B. Admission Made to Clergyman in Course of Discipline

[29]   Elliott first argues that Pastor Evans should not have been allowed to testify to

       the incriminating statement because the statement was an admission made to

       his pastor, a clergyman, “in the course of discipline enjoined by” his pastor’s

       church. Ind. Code § 34-46-3-1(3)(A). Elliott maintains that Pastor Evans

       delivered discipline to him while he was in jail and that the “discipline sought

       that Elliott own up to his sins and repent.” Appellant’s Br. p. 21. According to

       Elliott, “the pastor told [him] that he needed to repent[, and] Elliott repented.”

       Id. at 23.


[30]   In support of his argument, Elliott directs us to two cases: Ball v. State, 275 Ind.

       617, 419 N.E.2d 137 (1981) and Mullins. In Ball, the defendant initiated a

       conversation with a reverend and admitted to killing three people. Over Ball’s

       objection, the trial court allowed the State to present the evidence from the

       reverend at trial. The question before our supreme court was whether the

       reverend engaged in the conversation in the course of discipline enjoined by the

       church. The Court concluded that the reverend did not, and, therefore, the

       reverend was competent to testify to Ball’s admissions. Specifically, the Court
       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 17 of 31
       found that the trial court did not err in allowing the evidence based on the

       reverend’s testimony at trial that the “pastoral confession d[id] not constitute

       one of the tenets or disciplines of [the] church[;]” the “church d[id] not

       recognize a confidential pastor-parishioner relationship with respect to evidence

       of a crime[;]” and “if a person were to talk to [the reverend] about a legal

       matter, he would tell them that he would not ‘stand up’ for him and would not

       keep the information confidential” but, instead, “would testify against someone

       if he learned from them that they had committed a crime.” 275 Ind. at 139-40,

       419 N.E.2d at 619.


[31]   In Mullins, the defendant stole personal checks from a Catholic priest he knew

       and then forged and cashed one of the checks. When the priest discovered the

       crime, he summoned Mullins to the rectory, confronted him about the checks,

       and “‘asked him why he did it.’” 721 N.E.2d at 337. Mullins apologized to the

       priest and told the priest he would try to repay him, but Mullins failed to do so.

       At trial, the priest testified to Mullins’ apology.


[32]   On appeal, Mullins argued that his apology to the priest was erroneously

       admitted into evidence because it was a privileged confession under Indiana

       Code section 34-46-3-1. He noted that the Catholic faith recognizes the sanctity

       of confession. A panel of this court agreed that “the Catholic sacrament of

       reconciliation clearly falls within the strictures of the [clergymen privilege]

       statute as confessions made to a clergyman in the course of discipline enjoined

       by the clergyman’s church.” Id. at 338. However, we ultimately found that

       Mullins’ communications with the Catholic priest were outside the priest’s

       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 18 of 31
       course of discipline and were not privileged because the “confession” was no

       more than an apology to the priest that took place in the priest’s kitchen after

       the priest had summoned Mullins. Id.


[33]   In Bonham v. State, 644 N.E.2d 1223 (Ind. 1994), a case we find instructive, the

       defendant was accused of killing his acquaintance’s mother. A pastor of a

       church where Bonham’s parents were members had visited Bonham in jail.

       During the visit, Bonham told the pastor how he had killed the victim.

       Bonham’s counsel filed a motion to suppress the evidence on the basis that it

       was a privileged communication; however, the trial court overruled the motion

       and allowed the pastor to testify. Bonham appealed and our supreme court

       noted that the pastor testified that “there was no course of discipline in his
                                                                                                        4
       church that required a formal confession of sins.” 644 N.E.2d at 1225. Thus,

       the trial court did not err in overruling Bonham’s motion to suppress and his

       counsel’s objection to the pastor’s testimony. Id.


[34]   Elliott attempts to distinguish his case from Ball and Mullins. However, we find

       his attempts unavailing and conclude that Pastor Evans’ testimony was

       properly admitted. We first note that, prior to trial, Pastor Evans was deposed

       as part of the evidence obtained for Elliott’s motion to suppress the statements




       4
        We note that when the decisions in Ball and Bonham were issued, the clergymen privilege was codified
       under Indiana Code section 34-1-14-5(4) (repealed 1998), which read as follows: “The following persons
       shall not be competent witnesses: . . . . Fifth. Clergymen, as to confessions or admissions made to them in
       course of discipline enjoined by their respective churches.”



       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020                               Page 19 of 31
                              5
he made to the pastor. During the deposition, the pastor testified regarding

whether his church had a sacrament for the confession of sins:


        Q        First question, does your church have like a formal form of
                 penitence where people would come to you and quit[e]
                 literally confess their sins to you?


        A        No. I engage in counseling but that is not viewed as
                 penitence and confession in that sense at all.


        Q        Okay, so there’s no like sanctity of a confession within
                 your church, is that correct?


        A        No, if the Reformed Church would clearly break from the
                 Catholic tradition, it would have such a notation.


        Q        Okay, second question. . . . Would you go to law
                 enforcement and let the [p]olice know that this guy came
                 and told me that he buried someone in the back yard?


        A        Absolutely. Yeah, I very much see myself as under the
                 authority of the Civil Magistrate and that would be my
                 responsibility, yes.


Appellant’s App. Vol. 2, pp. 106-07.




5
  Pastor Evans was deposed because, at the time Elliott filed his motion to suppress the statements he made
to the pastor, the pastor was living in Pennsylvania and was serving as a professor of counseling at a
theological center.

Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020                              Page 20 of 31
[35]   At trial, Pastor Evans testified that when he met with Elliott at the jail the

       second time, he delivered to Elliott a letter containing church discipline because

       the pastor and the church had discovered that Elliott’s claim of self-defense had

       been called into question. The letter reads:


               September 1, 2017


               Dear Pat,


               When news first broke about Donita’s death, we were
               understandably grieved and deeply concerned. As details began
               to unfold, and we were told by you that Donita was suffering a
               significant break from reality, had threatened your very life, and
               attempted to kill you with a kitchen knife, resulting in your need
               to exercise self-defense; while still deeply grieved, we were
               tremendously supportive of you. At the time, we were thankful
               for the letter you wrote to the Church explaining the
               circumstances, and we were even willing to forward that letter
               along to the press, at your request, because we believed it to
               helpfully clarify the events of August 8. We also propagated
               your narrative to the congregation and to those enquiring about
               your standing in the Church of Christ.


               All of this changed when the affidavit of your arrest and charges
               were released to the press. In the affidavit, by the testimony of
               multiple police officers, it has been confirmed that you lied about
               the self-defense scenario, confessed to planting a knife on your
               wife, and therefore deceived: not only your session, but your
               congregation, and manipulatively used the Lafayette Church to
               present a false narrative of the events to the public.


               Therefore, we as the Session of the RP Church of Lafayette, find
               you guilty of the great sins of lying to the Church of Jesus Christ

       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 21 of 31
        surrounding the death of your wife, and manipulatively deceiving
        the Church for the sake of propagating your lies. It is in that light
        that we voted to suspend you from the privileges of church
        membership at the August 31, 2017 session meeting.


                 Whereas you, Patrick Elliott, have been found guilty of the sins of
                 lying and deceiving the Church of Christ, this Court, in the Name
                 of the Lord Jesus Christ, sadly and solemnly suspends you from
                 the privileges of church membership, including participation in
                 the sacraments, until you have given satisfactory evidence of true
                 repentance, and have been restored to good standing by this
                 Court.


        Pat, you need to know that you are not right with Jesus. While
        we are presently withholding judgment as to the nature of your
        killing of Donita, it is imperative that you be confronted sooner
        rather than later with the fact that you may not deceive yourself.
        You have lied, and you have deceived us, but the charade is not
        continuing. Do not be deluded into thinking that you are
        perfectly fine in the eyes of your Lord. You have sinned
        grievously and need to repent and demonstrate the fruits fitting
        for repentance.


        We pray that this discipline will be the very thing necessary to
        awaken your soul to the terrible realities of the path that you are
        on. We call you, in the name of Jesus Christ, to genuine and
        deep brokenness over your sins. In this, we await a response
        from you, a response of softening, a response of complete
        honesty, and a response of holiness. Until then, we are praying
        for you, Pat.


        The Session of the
        Reformed Presbyterian Church of Lafayette




Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020                 Page 22 of 31
       Ex., Def.’s Ex. B, p. 219. The pastor testified that when he delivered the letter

       to Elliott and explained to Elliott that the church and the church session had

       determined that “we had been deceived, we had been lied to as a church[,

       Elliott then] said[,] I did not lie except for the knife, I planted the knife but

       everything else [regarding] my story is the same.” Tr. Vol. 3, pp. 82-83.


[36]   Although the discipline letter stated that Elliott’s privileges as a member of the

       church were suspended, that he had “sinned grievously” and needed to repent,

       and that the church was awaiting a response from him of “softening,”

       “complete honesty,” and “holiness[,]” the pastor testified that the Reformed

       Presbyterian Church does not recognize a formal confession. Ex., Def.’s Ex. B,

       p. 219. When asked if the church recognizes privileged communications

       between the pastor and a church member, the pastor explained that the church

       recognizes “the need for discretion but not confidentiality.” Tr. Vol. 3, p. 95.

       When asked if a member must make a formal confession to the pastor in order

       to “get right with God[,] Pastor Evans answered, “Not a formal confession[,]

       no.” Id.


[37]   Based upon the foregoing, and in light of Ball, Mullins, and Bonham, we

       conclude that Elliott’s statement to Pastor Evans was not made “in the course

       of discipline enjoined by” Pastor Evans’ church. See Ind. Code § 34-46-3-

       1(3)(A). Therefore, the trial court did not err in admitting the pastor’s

       testimony.




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020           Page 23 of 31
                       C. Confidential Communication Made to a Clergyman

[38]   Elliott next argues that the incriminating statement he made to Pastor Evans

       was protected under Subsection (B) of Indiana Code section 34-46-3-1(3)

       because the statement was a “confidential communication made to a clergyman

       in the clergyman’s professional character as a spiritual adviser or counselor.”

       Ind. Code § 34-46-3-1(3)(B). We disagree.


[39]   At trial, Pastor Evans testified that the first time he met with Elliott at the jail,

       he did so as his pastor to provide pastoral care. However, when Pastor Evans

       visited Elliott the second time, the pastor presented Elliott with the discipline

       letter from the church. The letter stated that Elliott’s church privileges had been

       suspended; he needed to repent; and the church was awaiting a response from

       him. Elliott then disclosed to the pastor that he had lied to the pastor and the

       church, in that, he had planted the knife at the scene of the shooting.


[40]   We find nothing in this conversation between the pastor and Elliott, and Elliott

       points us to no evidence, that indicates that Elliott expected any confidentiality

       on the pastor’s part or that Elliott was seeking spiritual advice or counseling

       from Pastor Evans in the pastor’s professional character. See, e.g., Mullins, 721

       N.E.2d at 338 n.4 (“nothing in the conversation between [the priest] and

       Mullins indicates that Mullins expected any confidentiality or that he was

       seeking advice or counseling from [the priest] in his priestly capacity.”).

       Furthermore, Pastor Evans testified that confession was not part of the

       Reformed Presbyterian Church’s discipline; the church recognized the need for

       discretion but not confidentiality; and if a member of the church reported a
       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020           Page 24 of 31
       crime to him, he believed it was his responsibility to report the crime to the

       authorities. Based on the foregoing, we find that the incriminating statement

       Elliott made to his pastor was not protected under Indiana Code section 34-46-

       3-1(3)(B). Thus, the trial court did not abuse its discretion when it allowed the

       pastor to testify over Elliott’s objection.


[41]   Even if the trial court had erred in admitting the pastor’s testimony, the error

       would not require reversal. Generally, errors in the admission or exclusion of

       evidence are to be disregarded as harmless unless they affect the substantial

       rights of a party. Allen, 813 N.E.2d at 361. In determining whether an

       evidentiary ruling affected a party’s substantial rights, the court assesses the

       probable impact of the evidence on the trier of fact. Id. Evidence that is merely

       cumulative is not grounds for reversal. Tobar v. State, 740 N.E.2d 106, 108 (Ind.

       2000).


[42]   Here, additional independent evidence of the planting of the knife was

       presented during Elliott’s trial. For example, when the police interviewed

       Elliott and played the recording of the shooting for him, Elliott admitted that he

       had planted a knife after shooting his wife. When Elliott testified in his own

       defense, he admitted that he told the police that he planted the knife. Even if

       the trial court had erred in allowing Pastor Evans to testify, any error in the

       admission of the testimony did not affect Elliott’s substantial rights because the

       evidence was cumulative and therefore was harmless.




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 25 of 31
                                                  II. Sentence
[43]   Elliott contends his seventy-five year aggregate sentence is inappropriate given

       the nature of the offenses and his character, and he asks us to reduce his

       sentence. Indiana Appellate Rule 7(B) provides that we may revise a sentence

       authorized by statute if, after due consideration of the trial court’s decision, we

       determine that the sentence is inappropriate in light of the nature of the offense

       and the character of the offender. Thompson v. State, 5 N.E.3d 383, 391 (Ind.

       Ct. App. 2014). However, “we must and should exercise deference to a trial

       court’s sentencing decision, both because Rule 7(B) requires us to give ‘due

       consideration’ to that decision and because we understand and recognize the

       unique perspective a trial court brings to its sentencing decisions.” Stewart v.

       State, 866 N.E.2d 858, 866 (Ind. Ct. App. 2007). Such deference to the trial

       court’s judgment should prevail unless overcome by compelling evidence

       portraying in a positive light the nature of the offense (such as accompanied by

       restraint, regard, and lack of brutality) and the defendant’s character (such as

       substantial virtuous traits or persistent examples of good character). Stephenson

       v. State, 29 N.E.3d 111, 122 (Ind. 2015). Thus, the question under Appellate

       Rule 7(B) is not whether another sentence is more appropriate; rather, the

       question is whether the sentence imposed is inappropriate. King v. State, 894

       N.E.2d 265, 268 (Ind. Ct. App. 2008). The defendant bears the burden of

       persuading the appellate court that his or her sentence is inappropriate.

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




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 26 of 31
[44]   To assess whether a sentence is inappropriate, we look first to the statutory

       range established for the class of the offense. Here, Elliott was convicted of

       murder, a felony, and false informing as a Class A misdemeanor. For a murder

       conviction, the maximum sentence is sixty-five years, and the minimum

       sentence is forty-five years, with an advisory sentence of fifty-five years. Ind.

       Code § 35-50-2-3(a) (2015). The trial court sentenced Elliott to sixty years for

       murder, which is five years more than the advisory sentence but five years less

       than the maximum sentence. As an enhancement for a firearm used in the

       commission of murder, the trial court may impose an additional term of

       between five and twenty years. Ind. Code § 35-50-2-11(g) (2016). The trial

       court enhanced Elliott’s sixty-year sentence by fifteen years. A person who

       commits a Class A misdemeanor shall be imprisoned for a fixed term of not

       more than one year. Ind. Code § section 35-50-3-2 (1977). The trial court

       sentenced Elliott to the maximum of one year for the false informing and

       ordered the one-year sentence to run consecutive to the murder sentence. In

       sum, the trial court imposed an aggregate sentence of seventy-five years, which

       was eleven years less than the maximum aggregate term of eighty-six years the

       court could have imposed.


[45]   As to the nature of the offenses, we first note that Elliott committed callous,

       heinous, and calculated acts. In cold blood, he shot and killed his wife from a

       distance of between six and thirty inches for no apparent reason—other than to

       be rid of his wife because of his wife’s battle with mental illness and its impact

       on him. On the night in question, Donita left home for a few hours and


       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 27 of 31
checked into a motel, after becoming upset by a wellness check that Elliott had

requested from the TCSD. While she was away, Elliott retrieved a handgun

from his car, brought it into the house, and hid it in the buffet. When Donita

returned to the home to pick up a few belongings, Elliott began to argue with

her about her medication and the sleeping arrangements for that night. The

two appeared to fight over a chair in the living room, and Elliott pulled out the

gun. Donita told Elliott, “It’s my chair. Get the f*** out.” Conf. Ex., State’s

Ex. 1. She then stated, “Shoot me. I don’t care, give . . . I don’t give a f***.

Shoot me.” Id. Elliott said nothing in reply and, instead, fired the gun

immediately, striking his wife in the chest. Though his wife was still alive and

begged Elliott eight times to help her, Elliott waited two minutes before calling

911. He told her, “I will help when I am f***ing done watching you die.” Id.

When Elliott called 911, and the dispatcher attempted to instruct him in

rendering medical assistance to Donita, Elliott first indicated that he was unsure

how to assist her. Elliott did not administer aid to his wife until several minutes

later—eight minutes into the call—when the dispatcher asked Elliott if he could

perform chest compressions on his wife, and Elliott indicated to the dispatcher

that he would do so. Donita died later that morning at the hospital. As for the

false informing offense, Elliott planted a knife at the scene of the shooting and

then lied to the police, telling them his wife attacked him with the knife and that

he shot her in self-defense. We find nothing regarding the nature of Elliott’s

offenses that persuades us his sentence is inappropriate.




Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020        Page 28 of 31
[46]   Regarding his character, Elliott, in an effort to portray his character in a positive

       light, argues that he has a “very minimal” criminal history; he had a work

       history; and he had the support of his family. Appellant’s Br. p. 28. We review

       an offender’s character by engaging in a broad consideration of his qualities.

       Aslinger v. State, 2 N.E.3d 84, 95 (Ind. Ct. App. 2014), clarified on other grounds on

       reh’g, 11 N.E.3d 571. “When considering the character of the offender, one

       relevant fact is the defendant’s criminal history.” Garcia v. State, 47 N.E.3d

       1249, 1251 (Ind. Ct. App. 2015), trans. denied (2016). Elliott was convicted of

       public intoxication in 1994, operating a vehicle with a blood alcohol

       concentration of .10% or more in 1997, and false informing in 1997. He was

       charged with Class D felony criminal confinement and battery resulting in

       bodily injury in 1991, and three petitions to revoke his probation have been

       filed against him. At sentencing, the trial court acknowledged that Elliott’s

       criminal history was “mitigated by the distance in time between the last

       conviction and the commission of this offense,” however, this did not diminish

       the fact that Elliott has a criminal history. Tr. Vol. 5, p. 111; see, e.g., Reis v.

       State, 88 N.E.3d 1099, 1105 (Ind. Ct. App. 2017) (“Even a minor criminal

       record reflects poorly on a defendant’s character[.]”). The trial court also

       considered as mitigating factors Elliott’s work history and that he had the

       support of his family.


[47]   At the sentencing hearing, the trial court also expressed the following regarding

       Elliott’s trial:




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020             Page 29 of 31
               “I’ll help you when you’re dead.” That’s not the only thing I
               remember about [your] trial, but that’s the, that is your
               statement, which frankly, I believe sealed your fate. And that’s
               what people who knew you will remember, the playing of that
               audio tape after 8 or 9 requests for help, that “I’ll help you when
               you’re dead.”


       Tr. Vol. 5, p. 110. Elliott retrieved a handgun, waited for his wife to return to

       their home, argued with her, and then shot her in the chest at close range for no

       apparent reason. He ignored his wife’s repeated pleas for help, telling her,

       “[n]ope” and, cruelly, that he would help her when he was finished watching

       her die. Conf. Ex., State’s Ex. 1. To make matters worse, he waited two

       minutes after shooting her to call 911, and he was reluctant to administer CPR.

       He lied to the 911 dispatcher, the police, his pastor, and his church about the

       events of the shooting—telling everyone that his wife attacked him with a knife

       when, instead, he planted a knife at the scene. At sentencing, the trial court

       noted the following regarding remorse: “[F]rom your statements, from the

       actions of that evening, morning again, . . . I don’t see any remorse for that

       which occurred.” Tr. Vol. 5, p. 112. Thus, we find that Elliott’s character does

       not render his sentence inappropriate.


[48]   Based on the nature of the offenses and his character, Elliott has failed to

       persuade this Court that his seventy-five year sentence, which includes a sixty-

       year sentence for murder, a fifteen-year enhancement because he used a firearm

       in the commission of the offense, and a concurrent one-year term for the false

       informing offense, is inappropriate. We affirm Elliott’s aggregate sentence.


       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020         Page 30 of 31
                                                  Conclusion
[49]   For the reasons stated, we conclude that the trial court did not err in admitting

       Pastor Evans’ testimony regarding Elliott’s admission that he planted the knife

       at the scene of the shooting and that Elliott’s seventy-five year aggregate

       sentence was not inappropriate in light of the nature of the offenses and his

       character.


[50]   Affirmed.


       Bailey, J., and Mathias, J., concur.




       Court of Appeals of Indiana | Opinion 19A-CR-2498 | July 17, 2020        Page 31 of 31
