 Pursuant to Ind.Appellate Rule 65(D),


                                                                   FILED
 this Memorandum Decision shall not be
 regarded as precedent or cited before
 any court except for the purpose of
 establishing the defense of res judicata,                      Jan 23 2013, 9:31 am
 collateral estoppel, or the law of the case.
                                                                        CLERK
                                                                      of the supreme court,
                                                                      court of appeals and
                                                                             tax court




ATTORNEY FOR APPELLANT:                              ATTORNEYS FOR APPELLEE:

MARK A. BATES                                        GREGORY F. ZOELLER
Crown Point, Indiana                                 Attorney General of Indiana

                                                     GARY R. ROM
                                                     Deputy Attorney General
                                                     Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

ROBERT EARL DAVIS,                                   )
                                                     )
       Appellant-Defendant,                          )
                                                     )
               vs.                                   )       No. 45A03-1203-CR-145
                                                     )
STATE OF INDIANA,                                    )
                                                     )
       Appellee-Plaintiff.                           )


                       APPEAL FROM THE LAKE SUPERIOR COURT
                     The Honorable Kathleen A. Sullivan, Judge Pro Tempore
                                Cause No. 45G02-1107-MR-6


                                          January 23, 2013

                 MEMORANDUM DECISION - NOT FOR PUBLICATION

VAIDIK, Judge
                                     Case Summary

       Less than three years after being discharged from parole for a murder he

committed at the age of eighteen, forty-five-year-old Robert Earl Davis murdered again.

Davis now appeals his second murder conviction and sixty-five-year sentence. We find

no fundamental error in the trial court’s accomplice-liability instruction or in the

prosecutor’s statements during closing argument, that the evidence is sufficient to support

Davis’s conviction, and that Davis has failed to persuade us that his sixty-five-year

sentence is inappropriate. We therefore affirm.

                             Facts and Procedural History

       The facts most favorable to the verdict follow. Alisha Williams lived with Parrish

Myles, whom she had been dating for sixteen years, and their two children, A.L. and

D.M., in The Mansards Apartments in Griffith, Indiana. On the morning of July 22,

2011, Alisha was running late for work so she asked Parrish to take A.L., age eleven, and

D.M., age five or six, to day care. Around 9:30 a.m., Parrish put the children in his

Chevrolet Tahoe. A.L. got in the front seat, and D.M. got in the back seat. Parrish went

to put trash in the dumpster when a bronze-colored Toyota Camry with Illinois license

plates and registered to Davis pulled up.

       The occupants of the Camry called out to Parrish, and Parrish walked up to the

passenger side of the car and briefly talked to the two men in the car. As Parrish walked

away from the Camry, a shot was fired from inside the car, hitting him. A man in a red-

colored shirt, white tennis shoes, and hat exited the driver’s side of the Camry and shot

Parrish again. A man in a white shirt stayed in the car and slid over to the driver’s seat.


                                            2
The man in the red-colored shirt and white tennis shoes got in the passenger seat, and the

man in the white shirt drove away. A.L. witnessed the entire incident. Other residents in

the apartment complex heard the shots and called 911. One of the residents, Rosa

Orphey, had just finishing drinking tea on her patio when she saw the man in the red-

colored shirt shoot Parrish while he was on the ground. Another resident, Krystle Gavin,

was putting antifreeze in her car when she heard the shots. Krystle said that a man in a

red-colored shirt had a gun and that his skin was darker than the man’s skin in the car.

       Griffith Police Department Officer Robert Carney responded to reports that a gold

sedan was leaving the scene of a shooting. Officer Carney quickly located the car, which

was stopped at a red light at the intersection of Ridge Road and Broad Street. Officer

Carney noticed the car because a man was standing outside the passenger side, walked

around the car, and entered the driver’s seat, thereby switching drivers. Although the

man was wearing a light-colored shirt instead of a red-colored shirt, the man was wearing

white tennis shoes, the same color as the shooter’s shoes. Officer Carney activated his

emergency lights. The man, however, refused to stop, and a high-speed chase ensued

with the Camry reaching speeds of over 100 miles per hour, running red lights, and

weaving through traffic in residential areas and on I-80/94. At one point, the driver

stopped and dropped off the man in the white shirt, who was wearing black tennis shoes.

He disappeared along the Little Calumet River carrying a red-colored shirt and a red hat

as the driver sped off. Officer Carney continued his pursuit of the driver until Officer

Carney crashed his car into a tree in a residential area. Another officer continued chasing

the driver, and the chase ended when the driver, identified as forty-five-year-old Davis


                                             3
from Chicago, crashed his Camry head-on into another police officer’s car. The police

collected Davis’s clothing, which included a light-colored shirt and white tennis shoes.

The passenger of the car who had been dropped off at the Little Calumet River, Davis’s

twenty-nine-year-old nephew, Lyndon Davis (“Lyndon”), also from Chicago, was

eventually apprehended.

       Police responded to the scene of the shooting within minutes to find Parrish lying

face down in the roadway. Parrish was breathing and moving slightly but quickly lost his

pulse. An ambulance transported Parrish to the hospital. Parrish was shot four times and

died from multiple gunshot wounds. A copper bullet jacket was collected at the scene

and bullet fragments were collected from Parrish’s body. It was determined that the

bullet fragments and casings were fired from the same weapon, which was never

recovered. Police recovered a red-colored shirt and a red hat on the river bank near the

area where Davis had dropped off Lyndon during the chase.

       The State charged Davis with murder and felony murder, but the State dismissed

the felony-murder charge before trial. A five-day jury trial began in January 2012. The

State’s theory at trial was that Davis was the shooter; the State uncovered no motive for

the murder. Davis’s theory was that “he had nothing to do with the killing of Parrish

Myles,” he did not have an agreement with Lyndon, and the “only thing” he was guilty of

was “fleeing from the police.” Tr. p. 762-63. The trial court instructed the jury on

accomplice liability. The jury found Davis guilty of murder. Following the sentencing

hearing, the trial court found no mitigators and two aggravators, Davis’s prior convictions




                                            4
of murder and armed robbery and that Davis committed the murder in front of Parrish’s

children. The court sentenced Parrish to sixty-five years.

       Davis now appeals.

                                 Discussion and Decision

       Davis raises several issues on appeal. First, he contends that the trial court erred

in failing to give his tendered instructions on accomplice liability. Second, he contends

that the prosecutor committed prosecutorial misconduct. Third, Davis contends that the

evidence is insufficient to support his murder conviction. Finally, he contends that his

sixty-five-year sentence is inappropriate.

                                   I. Jury Instructions

       Davis contends that the trial court erroneously instructed the jury on accomplice

liability and should have given his tendered instructions instead. Id. at 634 (Defendant’s

Instruction Nos. 1 & 4). We review the trial court’s decision to give a jury instruction for

an abuse of discretion. Brooks v. State, 895 N.E.2d 130, 132 (Ind. Ct. App. 2008). To

constitute an abuse of discretion, the instruction given must be erroneous, and the

instructions viewed as a whole must misstate the law or otherwise mislead the jury. Id.

       Davis concedes that he did not object to the trial court’s accomplice-liability

instruction, Final Instruction No. 6. See Scisney v. State, 701 N.E.2d 847, 849 (Ind.

1998) (“We hold that appellate review of a claim of error in the giving of a jury

instruction requires a timely objection clearly identifying both the claimed objectionable

matter and the grounds for the objection, but that the tender of a proposed alternative




                                             5
instruction is not necessarily required to preserve the claim of error.”). In order to avoid

procedurally defaulting on this claim, Davis argues fundamental error.

       The fundamental-error doctrine provides a vehicle for the review of error not

properly preserved for appeal. Hoglund v. State, 962 N.E.2d 1230, 1239 (Ind. 2012),

reh’g denied. In order to be fundamental, the error must represent a blatant violation of

basic principles rendering the trial unfair to the defendant and thereby depriving the

defendant of fundamental due process. Id. Harm is not shown by the fact that the

defendant was ultimately convicted; rather, harm is found when error is so prejudicial as

to make a fair trial impossible. Id.

       The trial court’s Final Instruction No. 6 provides:

              Where two or more persons engage in the commission of an
       unlawful act; each person may be criminally responsible for the actions of
       each other person which were a probable and natural consequence of their
       common plan even though not intended as part of the original plan. It is not
       essential that participation of any one person to each element of the crime
       be established.
              A person who knowingly or intentionally aids, induces, or causes
       another person to commit an offense commits that offense, even if the other
       person:
              1. has not been prosecuted for the offense;
              2. has not been convicted of the offense; or
              3. has been acquitted of the offense.
              To aid under the law is to knowingly aid, support, help or assist in
       the commission of a crime. Mere presence at the scene of the crime and
       knowledge that a crime is being committed are not sufficient to allow an
       inference of participation. It is being present at the time and place and
       knowingly doing some act to render aid to the actual perpetrator of the
       crime.
              The presence of a person at the scene of the commission of a crime
       and companionship with another person engaged in the commission of the
       crime and a course of conduct before and after the offense are
       circumstances which may be considered in determining whether such
       person aided and abetted the commission of such crime.


                                             6
Tr. p. 779.1

        Davis first argues that Final Instruction No. 6 “fails to inform the jury to consider

the voluntary conduct of Davis in committing the charged crime.” Appellant’s Br. p. 9.

The jury must be instructed that accomplice liability requires proof that the defendant

engaged in voluntary conduct in concert with his accomplice. Carter v. State, 766

N.E.2d 377, 383 (Ind. 2002), reh’g denied. Davis relies on Small v. State, 531 N.E.2d

498 (Ind. 1988), in support of his argument that reversal of his murder conviction is

required in this case. In Small, the jury instruction provided:

        Indiana law provides that: A person who knowingly or intentionally aids,
        induces, or causes another person to commit an offense commits that
        offense. It is also the law that a Defendant is responsible for the acts of his
        codefendants as well as his own acts. Any act of one is attributable to them
        all.

Id. at 499. Our Supreme Court found that the words “It is also the law that” separating

portions of the instruction created two separate bases for criminal liability; the second

part of the instruction lacked any statement that criminal liability required proof of

voluntary conduct in violation of a criminal statute. Id.; see also Marshall v. State, 621

N.E.2d 308, 319-20 (Ind. 1993). Accordingly, our Supreme Court found this to be

reversible error. Small, 531 N.E.2d at 500.

        Here, unlike the instruction in Small, Final Instruction No. 6 includes the

following language, “To aid under the law is to knowingly aid, support, help or assist in

the commission of a crime” and “It is being present at the time and place and knowingly


        1
           This is not the pattern jury instruction on accomplice liability. See 1 Ind. Pattern Jury
Instructions (Criminal) No. 2.11 (3d. ed. 3/2011).               While the preferred practice is to use
the pattern jury instructions, there is no prohibition against the use of appellate-decision language in jury
instructions. Gravens v. State, 836 N.E.2d 490, 493 (Ind. Ct. App. 2005), trans. denied.
                                                     7
doing some act to render aid to the actual perpetrator of the crime.” This same language

was used in Marshall, and our Supreme Court found no defect in the language. 621

N.E.2d at 320. Accordingly, we find that Final Instruction No. 6 required voluntary,

affirmative conduct on the part of Davis and made no suggestion that Davis could be

convicted based on the actions of Lyndon without also aiding Lyndon. Moreover, the

instruction made clear that Davis’s mere presence at the scene or his knowledge that a

crime was being committed, which are primary examples of passive conduct, would not

be enough to establish accomplice liability.

       Davis next argues that Final Instruction No. 6 is erroneous because it instructs the

jury to look to Davis’s actions “before and after, but not during, the crime.” Appellant’s

Br. p. 10. It is true that our case law provides that one of the factors in determining

whether a defendant acted as an accomplice is his “course of conduct before, during, and

after occurrence of crime.” See, e.g., Castillo v. State, 974 N.E.2d 458, 466 (Ind. 2012)

(emphasis added). Here, however, the trial court’s instruction said to look to Davis’s

conduct before and after, but not during, the crime. Tr. p. 779 (“a course of conduct

before and after the offense are circumstances which may be considered . . . .”). This

highlights the importance of a timely objection. If Davis had objected, the trial court

could have edited the jury instruction to include the word “during.”         Nevertheless,

because Final Instruction No. 6 includes language such as “The presence of a person at

the scene of the commission of a crime and companionship with another person engaged

in the commission of the crime,” which ensures that the jury considered Davis’s actions




                                               8
at the time of the crime, we find that the omission of the word “during” was not

fundamental error.

       The trial court’s accomplice-liability instruction therefore does not rise to the level

of fundamental error.

                              II. Prosecutorial Misconduct

       Davis next contends that the prosecutor committed two instances of prosecutorial

misconduct. We evaluate a properly preserved claim of prosecutorial misconduct using a

two-step analysis. We first determine whether misconduct occurred; then, if there was

misconduct, we assess whether the misconduct, under all of the circumstances, placed the

defendant in a position of grave peril to which he or she would not have been subjected

otherwise. Castillo, 974 N.E.2d at 468. To preserve a claim of prosecutorial misconduct,

the defendant must ask the trial court, at the time the misconduct occurs, to admonish the

jury or move for a mistrial if the admonishment is inadequate. Id. Failure to request an

admonishment or a mistrial waives the claim, unless the defendant can demonstrate that

the misconduct rises to the level of fundamental error. Id. Fundamental error is a narrow

exception intended to place a heavy burden on the defendant.            Id.   It requires the

defendant to establish that the misconduct “[made] a fair trial impossible or constitute[d]

clearly blatant violations of basic and elementary principles of due process” or that the

misconduct “present[ed] an undeniable and substantial potential for harm.” Id. (quotation

omitted). The mere fact that an alleged error implicates constitutional issues does not

establish that fundamental error has occurred. Nichols v. State, 974 N.E.2d 531, 535

(Ind. Ct. App. 2012).


                                              9
                            A. Comment on Right to Remain Silent

      Davis first argues that the prosecutor committed prosecutorial misconduct during

closing argument by referencing his right to remain silent, entitling him to a new trial.

After discussing Davis’s and Lyndon’s cell-phone records, which showed their locations,

the prosecutor continued:

      So, that gives us an idea that it’s not like these guys were just wrongfully
      picked up randomly off the street, they just happened to be there. These are
      guys that were talking to each other the day before, these are guys that were
      talking to each other the day before, these are guys that were talking to each
      other earlier that morning, these are guys that got together in the same
      vehicle and were around the Mansards for some time waiting for Parrish
      Myles to come outside with his kids where he’s gunned down. We don’t
      have to prove motive and I don’t know why and I can’t accept a good
      reason why something like that would ever be acceptable. I don’t know the
      reason. And as the State, we don’t have to know it. He has a right not to
      say anything, he has a right to remain silent.

      BY MR. STIGLER:
          Objection. May we approach, Judge?

      BY THE COURT:
           You may.

      AT THIS POINT A DISCUSSION WAS HELD AT THE BENCH,
      OUTSIDE THE HEARING OF THE JURY.

      BY MR. STIGLER:
             She had no reason to comment at all about his particular right and
      now she has broached the issue to this particular jury. I would ask that the
      jury be admonished that you will give an instruction concerning that.

      BY MS. SCOTT:
          That’s fine.

      BY THE COURT:
           You need to be careful about referencing things like that.

      BY MS. SCOTT:
          Okay.

                                            10
       BY THE COURT:
             It seems to suggest that he didn’t give a statement to the police, but
       you don’t have the right to comment on that at all. All right?

       BY MS. SCOTT:
           Okay. I’ll move on.

       WHEREUPON THE FOLLOWING WAS HELD BACK IN THE
       HEARING OF THE JURY.

       BY THE COURT:
              Ladies and gentlemen, you will get an instruction from the Court
       about the defendant’s right to remain silent and not having to prove or
       present any evidence which I think I already have discussed a couple times
       already.
              All right. Go ahead.

Tr. p. 752-55. The trial court later gave related instructions in its Final Instruction No. 10

(the defendant is not required to present any evidence or to prove or explain anything)

and No. 12 (the fact that the defendant did not testify is not to be considered as evidence

of his guilt and should not be commented on in arriving at a verdict). Id. at 784, 786.

       Although Davis requested an admonishment, he did not request a mistrial on

grounds that the trial court’s admonishment was insufficient.         Therefore, Davis has

waived this issue and must show that fundamental error occurred.

       The Fifth Amendment privilege against self-incrimination is violated “when a

prosecutor makes a statement that is subject to reasonable interpretation by a jury as an

invitation to draw an adverse inference from a defendant’s silence.” Dumas v. State, 803

N.E.2d 1113, 1118 (Ind. 2004) (quotation omitted). The defendant bears the burden of

showing that a comment improperly penalized the exercise of the right to remain silent.

Moore v. State, 669 N.E.2d 733, 739 (Ind. 1996), reh’g denied.


                                             11
        The prosecutor’s comment does not amount to fundamental error. Unlike most

cases, here the State did not have a motive for Parrish’s murder. The prosecutor was

explaining to the jury—which was likely curious during this five-day trial why Parrish

was murdered in broad daylight in front of his children—that the State did not need to

know the motive in order to prove its case against Davis and mentioned that Davis had

the right not to say anything and to remain silent, thus not supplying a motive in the case.

Regardless of the prosecutor’s reason for making the comment, the comment did not

make a fair trial impossible for Davis or constitute clearly blatant violations of basic and

elementary principles of due process. This is because the comment was an isolated

statement in a lengthy closing argument that the State estimates at thirty minutes, see

Appellee’s Br. p. 14, thereby lessening its effect on the jury. And immediately after the

prosecutor made the comment, the trial court issued a curative statement to the jury and

the prosecutor moved on. There is no fundamental error.2 Cf. Nichols, 974 N.E.2d at 536

(finding fundamental error in the prosecutor’s closing argument where the prosecutor

discussed “at length” an unrelated case where the evidence was extremely thin but the

defendant was convicted because he chose to testify and in testifying he provided the jury

with evidence of his guilt and the prosecutor said the foreman in that case “twice” told

him afterwards that if the defendant had not testified, he would have been “a free man”;

this Court concluded that it was “obvious that the prosecutor was suggesting that the jury

draw an inference of guilt from Nichols’s decision not to testify” in this case).


        2
            To the extent that Davis makes a separate argument under the Indiana Constitution, see Moore,
669 N.E.2d at 739 n.14 (“The Indiana Bill of Rights also protects a defendant’s right to remain silent at
trial, Ind. Const. Art. 1, § 14 . . . , and it is not necessarily coextensive with the federal Fifth Amendment .
. . .”), we reach the same result under both constitutions.
                                                      12
                       B. Comment on Law of Accomplice Liability

       Davis next argues that the prosecutor committed prosecutorial misconduct during

closing-argument rebuttal when she referenced the accomplice-liability instruction and

said “course of contact” instead of “course of conduct” and failed to mention that

voluntary conduct was required, thus entitling him to a new trial. The prosecutor said:

       And he wants to talk about that there’s no agreement [between Davis and
       Lyndon]. Well, guess what? Accomplice liability, it doesn’t require an
       agreement. In fact, the instruction, you’ll get the whole, but there’s a
       portion of that instruction that tells you, the presence of a person at the
       scene of the commission of a crime and companionship with another person
       engaged in the commission of the crime, and a course of contact before and
       after the offense are circumstances which may be considered in determining
       whether such person aided and abetted the commission of such crime. So,
       even if for some reason you don’t believe that the State of Indiana has
       proven that Robert Davis killed Parrish Myles, you better believe he’s
       guilty through accomplice liability.

Tr. p. 770-71 (emphasis added).       Again, Davis did not object and must show that

fundamental error occurred.

       As the State argues on appeal, “course of contact” appears to be an inadvertent

misstatement by the prosecutor or a typographical error in the transcript. In other words,

there is nothing to suggest that the prosecutor intentionally said “course of contact”

instead of “course of conduct” in order to mislead or confuse the jury about the law on

accomplice liability. The instruction clearly says “course of conduct.” Moreover, the

prosecutor did not ask the jury to convict Davis without finding that he committed some

voluntary act and never again said “course of contact.” The prosecutor told the jury that

she was referring to only part of the accomplice-liability instruction and that it would

hear the entire instruction later. As for the fact that the instruction was missing the word


                                            13
“during,” we already addressed that issue above. There is no fundamental error on this

issue.

                              III. Sufficiency of the Evidence

         Davis also contends that the evidence is insufficient to support his conviction for

murder, as either the shooter or an accomplice. Generally, there is no distinction between

the criminal liability of an accomplice and a principal. Castillo, 974 N.E.2d at 466. In

fact, a defendant may be charged as the principal but convicted as an accomplice. Id.

         When reviewing the sufficiency of the evidence to support a conviction, we must

consider only the probative evidence and reasonable inferences supporting the verdict.

Drane v. State, 867 N.E.2d 144, 146 (Ind. 2007). We do not assess witness credibility or

reweigh the evidence. Id. When confronted with conflicting evidence, we consider it

most favorably to the trial court’s ruling. Id. We affirm the conviction unless “no

reasonable fact-finder could find the elements of the crime proven beyond a reasonable

doubt.” Id. (quotation omitted). It is not necessary that the evidence overcome every

reasonable hypothesis of innocence. Id. at 147. The evidence is sufficient if an inference

may reasonably be drawn from it to support the verdict. Id.

         We find that the State presented sufficient evidence that Davis is the one who shot

and killed Parrish. A.L. testified that after the initial shot that came from inside the

Camry, the driver, who wore a red-colored shirt, exited the car and shot her father. A.L.

also testified that the shooter had a “[f]at” face and wore white tennis shoes and that the

tennis shoes recovered from Davis when he was apprehended were similar to the ones the

shooter wore. Tr. p. 433. After the man in the red-colored shirt shot Parrish, he entered


                                             14
the passenger-side of the Camry, and the man in the white shirt slid over to the driver’s

seat and drove away. Parrish was shot a total of four times and died from his wounds.

Within minutes of the shooting, Officer Carney located the Camry stopped at a stoplight.

A man in a light-colored shirt and white shoes was standing outside the car. Officer

Carney watched the man walk to the driver’s side of the car, enter the car, and drive

away, thus switching drivers. Officer Carney activated his emergency lights, but the

driver, later identified as Davis, did not stop, and a high-speed chase ensued. When

Davis was finally apprehended, he was wearing white tennis shoes, which is the same

color of shoes that the shooter wore; the passenger who was dropped off, Lyndon, was

wearing black tennis shoes. Although Davis was not wearing a red-colored shirt when he

was apprehended, Lyndon had a red-colored shirt in his hand when Davis dropped him

off at the Little Calumet River, and a red-colored shirt was later found along the Little

Calumet River.3

        In addition, two apartment residents heard the shots. Rosa testified that a man in a

red-colored shirt shot Parrish while he was on the ground. Krystle testified that a man in

a red-colored shirt had a gun in his hand and that his skin was darker than the man’s skin

in the car. The booking photographs of Davis and Lyndon show that Davis has darker



        3
           The State asserts on appeal that Davis’s DNA was found on the red-colored shirt. However, the
prosecutor was very clear in its opening statement and closing argument that no DNA was found on the
red-colored shirt. See, e.g., Tr. p. 749 (“[T]he red shirt is found on the Little Calumet. The red shirt is in
Lyndon’s hands, disposing of it for his uncle. It doesn’t have any DNA on it. It’s a 4X. You saw
Lyndon in the White Castle, he’s a very skinny guy. He doesn’t have any DNA and you heard from the
analyst there’s several reasons that could be. One, it sat outside in the torrential rain storm all day before
they picked it up at six o’clock that night. Two, it’s a really big shirt. If you wear really baggy clothing,
it’s not going to chafe on your skin as much. . . . And finally, if you wear it over other clothing, so say
you’re Robert Davis and you got on a gray T-shirt underneath that red shirt, it’s not going to touch your
skin anyway.”).
                                                     15
skin than Lyndon and that Davis has a fuller face. See State’s Ex. 26 & 27. All of his

evidence is sufficient to prove that Davis is the one who shot and killed Parrish.

       Nevertheless, Davis points to conflicts in the evidence, such as that A.L. testified

that the shooter had earrings, yet Lyndon, and not Davis, had pierced ears. Davis also

points out that the gun was never located. Davis’s argument that there was no direct

evidence to tie him to the crime is merely a request for us to reweigh the evidence, which

we will not do.

       Even if the jury did not find that Davis was the man in the red-colored shirt who

shot Parrish, the evidence is sufficient to convict Davis as an accomplice. We consider

four factors to determine whether a defendant acted as an accomplice: (1) presence at the

scene of the crime; (2) companionship with another at scene of crime; (3) failure to

oppose commission of crime; and (4) course of conduct before, during, and after

occurrence of crime. Castillo, 974 N.E.2d at 466. That a defendant was present during

the commission of a crime and failed to oppose the crime is not sufficient to convict him.

Id. But, presence at and acquiescence to a crime, along with other facts and

circumstances, may be considered. Id.

       Under an accomplice theory, the evidence shows that Davis was a willing

accomplice in Parrish’s murder. Davis and Lyndon drove together from Chicago to The

Mansards Apartments in Griffith, Indiana, in Davis’s car. They called out to Parrish, and

when Parrish walked away from the Camry, a shot was fired from inside the car at

Parrish. One of the men exited the car and shot Parrish again. The car then fled the

scene. Davis switched into the driver’s seat at an intersection and led the police on a


                                             16
high-speed chase. At one point during the chase, Davis dropped off Lyndon at the Little

Calumet River, where Lyndon disposed of a red-colored shirt and a red hat. The chase

finally ended when Davis crashed into an officer’s car. The gun was never located. The

evidence is also sufficient to convict Davis as an accomplice to Parrish’s murder.

                               IV. Inappropriate Sentence

       Finally, Davis contends that this sixty-five-year sentence is inappropriate and asks

us to revise it to the advisory term of fifty-five years. Our rules authorize revision of 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.” Ind. Appellate Rule 7(B). “[A] defendant must persuade the appellate court

that his or her sentence has met this inappropriateness standard of review.” Childress v.

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

       The principal role of Rule 7(B) review “should be to attempt to leaven the outliers,

and identify some guiding principles for trial courts and those charged with improvement

of the sentencing statutes, but not to achieve a perceived ‘correct’ result in each case.”

Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008). Whether a sentence is

inappropriate ultimately turns on the culpability of the defendant, the severity of the

crime, the damage done to others, and a myriad of other factors that come to light in a

given case. Id. at 1224.

       A person who commits murder shall be prisoned for a fixed term of between forty-

five years and sixty-five years, with the advisory sentence being fifty-five years. Ind.

Code § 35-50-2-3. The trial court sentenced Davis to sixty-five years.


                                             17
       Davis’s character alone justifies a sixty-five-year sentence. Today, at age forty-

six, Davis has spent essentially his entire adult life in prison. In 1984, at age eighteen,

Davis committed murder and armed robbery in Cook County, Illinois, and was sentenced

to an aggregate term of thirty-nine years. He was released to parole in February 2007 at

age forty and was discharged from parole in September 2008 at age forty-two. Less than

three years after being discharged from parole, in July 2011, Davis, age forty-five,

committed the murder in this case.

       As for the nature of the offense, even Davis describes it as “tragic” and

“deplorable.” Appellant’s Br. p. 26. The shooting was committed in broad daylight in

front of Parrish’s children. Davis’s denial of any involvement in Parrish’s murder at his

sentencing hearing does not justify his request for us to impose the advisory sentence.

       Given Davis’s previous murder conviction and the callous nature of this killing in

front of Parrish’s children, Davis has failed to persuade us that his sixty-five-year

sentence is inappropriate.

       Affirmed.

BAILEY, J., and BROWN, J., concur.




                                            18
