Pursuant to Ind.Appellate Rule 65(D), this                            Aug 14 2013, 5:33 am
Memorandum Decision shall not be
regarded as precedent or cited before any
court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.



ATTORNEY FOR APPELLANT:                          ATTORNEYS FOR APPELLEE:

T. ANDREW PERKINS                                GREGORY F. ZOELLER
Peterson Waggoner & Perkins, LLP                 Attorney General of Indiana
Rochester, Indiana
                                                 MICHAEL GENE WORDEN
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

RANDALL W. OGLE,                                 )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 25A03-1301-CR-7
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-Plaintiff.                       )


                     APPEAL FROM THE FULTON CIRCUIT COURT
                         The Honorable A. Christopher Lee, Judge
                             Cause No. 25C01-1012-MR-181


                                      August 14, 2013

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                              STATEMENT OF THE CASE

      Appellant-Defendant, Randall Ogle (Ogle), appeals his sentence for one Count of

reckless homicide, a Class C felony, Ind. Code § 35-42-1-5; one Count of possession of a

destructive device, a Class C felony, I.C. § 35-47.5-5-2; and one Count of possession of

marijuana in excess of 30 grams, a Class D felony, I.C. § 35-48-4-11(1).

      We affirm.

                                        ISSUES

      Ogle raises two issues on appeal, which we restate as:

      (1) Whether the trial court abused its discretion when sentencing him; and

      (2) Whether his sentence is inappropriate in light of the nature of his offenses and

          his character.

                           FACTS AND PROCEDURAL HISTORY

      On November 28, 2010, Ogle returned to his home in Rochester, Indiana, where

he lived with his son, Cassidy Ogle (Cassidy). The two began arguing. Both men were

intoxicated and Ogle’s blood alcohol content (BAC) was later determined to be .06.

Cassidy’s BAC was later determined to be .275. Cassidy wore a sheathed hunting knife

and a holstered 9mm Glock handgun. At some point, Cassidy threatened to “gut” Ogle

and attacked him with a butcher knife. (Transcript p. 813). Shots were also fired from

his gun. Ogle reached for a double-barrel shotgun that he kept at his home, fired two

shots, and hit Cassidy in the head and on the side of his body. Ogle later called 911 and

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stated that he shot Cassidy in self-defense, but subsequently maintained that the shooting

was accidental. During the ensuing investigation, police found marijuana and gold coins

in Ogle’s pick-up truck as well as throughout the home. Explosive devices were also

found in the home. Ogle denied ownership of the marijuana and the explosive devices.

       On December 20, 2010, the State filed an Information charging Ogle with Count I,

murder, a felony, Ind. Code § 35-42-1-1; Count II, voluntary manslaughter, a Class A

felony, I.C. § ; Counts III-IV, possession of a destructive device, Class C felonies, I.C. §

35-47.5-5-2; Count V, dealing in marijuana in excess of 30 grams, a Class D felony, I.C.

§ 35-48-4-10(a) and (b)(1)(B); and Count VI, possession of marijuana in excess of 30

grams, a Class D felony, I.C. § 35-48-4-11. On October 9, 2012, a jury trial was held.

The jury acquitted Ogle on Count I, but found him guilty of the lesser included offense of

reckless homicide, I.C. § 35-42-2-2(c)(3)(B). The jury also found Ogle guilty of Count

III, possession of a destructive device, and Count VI, possession of marijuana in excess

of 30 grams. Ogle was acquitted on Counts II, IV, and V.

       On December 10, 2012, the trial court conducted the sentencing hearing. As an

aggravating factor, the State argued that Ogle showed a lack of remorse for the killing of

his son. The trial court agreed, citing its doubts on the veracity of Ogle’s trial testimony

and his efforts to “set up the scene” following the shooting. (Tr. p. 1053). The trial court

also viewed the large quantity of marijuana and the explosive devices found at Ogle’s

home as aggravating factors. Concluding that the aggravating factors outweighed the

mitigating factors, the trial court sentenced Ogle to eight years for reckless homicide,

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with one year suspended and one year of probation; six years for possession of a

destructive device, with four years suspended and one year on probation; and three years

for possession of marijuana in excess of 30 grams, with two years suspended and one

year on probation. The trial court ordered the sentences to run consecutively for an

aggregate executed sentence of ten years. Ogle was also ordered to pay $3,662.95

restitution to Cassidy’s mother for funeral expenses.

       Ogle now appeals. Additional facts will be provided as necessary.

                              DISCUSSION AND DECISION

       Ogle argues that the trial court improperly sentenced him. First, he argues that the

trial court abused its discretion by identifying a lack of remorse as an aggravating factor.

Second, Ogle requests us to modify his sentence under Indiana Appellate Rule 7(B) in

light of the nature of his offense and his character.

                                   A. Abuse of Discretion

       As long as the sentence is within the statutory range, it is subject to review only

for an abuse of discretion. Anglemyer v. State, 868 N.E.2d 482, 491 (Ind. 2007), clarified

on reh’g, 875 N.E.2d 218 (Ind. 2007). An abuse of discretion will be found where the

decision is clearly against the logic and effect of the facts and circumstances before the

court or the reasonable, probable, and actual deductions to be drawn therefrom. Id.

       Ogle argues that the trial court conflated his insistence on innocence with a lack of

remorse. His argument is based on a single statement in his pre-sentence investigation

report, which refers to Ogle’s “lack of remorse as he continues to maintain his innocence

                                              4
after being found guilty by a jury.” (Appellant’s App. p. 86). However, the trial court’s

sentencing statement makes clear that it found Ogle to lack remorse based upon his

behavior following Cassidy’s death and the veracity of Ogle’s testimony. A trial court’s

determination of a defendant’s remorse is similar to a determination of credibility. See

Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002).               Absent evidence of some

impermissible consideration by the trial court, we accept its determination of credibility.

See id.

          Here, the trial court cited evidence that Cassidy’s body had been moved after the

shooting and that Ogle had arranged for marijuana and gold to be transported away from

the scene. The trial court found such acts to be the result of “self-preservation” instead of

remorse. (Tr. p. 1053). Although Ogle testified that he had no knowledge of the vast

quantity of marijuana and the destructive devices kept at his home, the trial court found

his explanations to be “extremely contradictory and at times really almost absurd.” (Tr.

p. 1053). Rather than penalizing Ogle’s insistence upon his innocence, the record reflects

that the trial court concluded that Ogle lacked remorse based upon his behavior and

contradictory testimony. Given our substantial deference to the trial court’s evaluation of

remorse, we find no abuse of discretion. See Sharkey v. State, 967 N.E.2d 1074, 1079

(Ind. Ct. App. 2012).

                                B. Appropriateness of Sentence

          Ogle also argues that his eight year sentence for reckless homicide is inappropriate

in light of the nature of the offense and his character. He also argues that consecutive

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sentences are inappropriate. 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

find] that the sentence is inappropriate in light of the nature of the offense and the

character of the offender.” The burden is on the defendant to persuade the appellate court

that his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind.

2006). “Ultimately the length of the aggregate sentence and how it is to be served are the

issues that matter.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008). Whether we

regard a sentence as appropriate at the end of the day turns on our sense of the culpability

of the defendant, the severity of the crime, the damage done to others, and a myriad of

other considerations that come to light in a given case. Id.

       The advisory sentence is the starting point the legislature has selected as an

appropriate sentence for the crime committed. Abbott v. State, 961 N.E.2d 1016, 1019

(Ind. 2012). A sentence for a Class C felony ranges from two to eight years, with an

advisory sentence of four years. See I.C. § 35-50-2-6(a). A sentence for a Class D felony

ranges from six months to three years, with an advisory sentence of one and a half years.

See I.C. § 35-50-2-7(a). The trial court sentenced Ogle to seven years executed and one

year suspended to probation on the Class C felony reckless homicide; two years executed,

four years suspended and one year on probation for Class C felony possession of a

destructive device; and one year executed, two years suspended and one year of probation

for Class D felony marijuana possession.



                                             6
       With respect to the nature of the offense, Ogle argues that he is not among the

worst of the worst offenders because of (1) Cassidy’s conduct in precipitating the

shooting and (2) previous appellate court decisions in which we have upheld maximum

sentences of reckless homicide. Although maximum possible sentences are generally

most appropriate for the worst offenders, “it will always be possible to identify or

hypothesize a significantly more despicable scenario.” Buchanan v. State, 767 N.E.2d

967, 973 (Ind. 2002). Thus, we look to the details and circumstances of the commission

of the offense and the defendant’s participation. See Washington v. State, 940 N.E.2d

1220, 1222 (Ind. Ct. App. 2011). To prove reckless homicide, the State was required to

present evidence that Ogle recklessly killed Cassidy. See I.C. § 35-42-1-5. A person

engages in conduct “recklessly” if he engages in the conduct in plain, conscious, and

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

deviation from acceptable standards of conduct. I.C. § 35-41-2-2(c). Here, Ogle was

admittedly intoxicated and arguing with his son, who was also intoxicated and armed.

Instead of electing to remove himself from the home, Ogle grabbed a loaded shotgun, put

two fingers on the trigger, and brought the volatile situation to its tragic conclusion. The

trial court found that Ogle engaged in acts of “self-preservation” by manipulating the

scene of Cassidy’s death and arranging for trucks containing marijuana and gold coins to

be removed from his property. (Tr. p. 1053). We therefore conclude that the nature of

the offense supports the sentence imposed by the trial court.



                                             7
       Turning to his character, we note that the trial court concluded that Ogle’s long

work history and negligible criminal history were mitigating factors. However, it did not

attribute much weight to his criminal history because of the on-going marijuana growing

operation at his home and its doubts on the veracity of his testimony.             We have

recognized that a defendant’s downplaying of responsibility and lack of veracity may be

indicative of character. See Sharkey, 967 N.E.2d at 1079. Given the record before us,

Ogle has not persuaded us that his character renders his sentence inappropriate.

       Finally, we reject Ogle’s challenge to his consecutive sentences. Ogle contends

that the trial court’s finding that Ogle committed “separate offenses and separate cases” is

at odds with the State’s closing argument, which arguably asserted that the marijuana

played a part in the dispute that led to Cassidy’s death. Pursuant to I.C. § 35-50-1-2(c),

the trial court may order terms of imprisonment to be served consecutively. In order to

impose consecutive sentences, the trial court must find at least one aggravating

circumstance.   O’Connell v. State, 742 N.E.2d 943, 951 (Ind. 2001).          It is a well-

established principle that the fact of multiple crimes or victims constitutes a valid

aggravating circumstance that a trial court may consider in imposing consecutive or

enhance sentences. Id. at 952. Ogle’s killing of Cassidy, his possession of a destructive

device, and possession of more than 30 grams of marijuana constitute separate crimes. In

sum, Ogle has not persuaded us that his sentence is inappropriate under these

circumstances. We therefore affirm the trial court’s sentence.

                                     CONCLUSION

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      Based on the foregoing, we conclude that the trial court did not abuse its discretion

when sentencing Ogle. Further, we conclude that Ogle’s sentence is not inappropriate.

      Affirmed.

KIRSCH, J. and ROBB, C. J. concur




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