MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                        FILED
regarded as precedent or cited before any
                                                                        Aug 28 2019, 8:53 am
court except for the purpose of establishing
the defense of res judicata, collateral                                      CLERK
                                                                         Indiana Supreme Court
estoppel, or the law of the case.                                           Court of Appeals
                                                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
David A. Smith                                           Curtis T. Hill, Jr.
McIntyre & Smith                                         Attorney General of Indiana
Bedford, Indiana
                                                         George P. Sherman
                                                         Supervising Deputy Attorney
                                                         General
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Nathan K. Baker,                                         August 28, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2744
        v.                                               Appeal from the Martin Circuit
                                                         Court
State of Indiana,                                        The Honorable Lynne E. Ellis,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         51C01-1509-MR-140



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019                  Page 1 of 14
                                       Statement of the Case
[1]   Nathan K. Baker appeals his convictions and 133-year aggregate sentence for

      two counts of murder; two counts of burglary, as Level 4 felonies; and one

      count of auto theft, as a Level 6 felony. Baker raises three issues for our review,

      which we restate as follows:


              1.       Whether the trial court abused its discretion when it
                       concluded that Baker’s statements to police officers while
                       in their custody were made voluntarily.


              2.       Whether the trial court abused its discretion in sentencing
                       Baker when it declined to find Baker’s purported
                       intellectual disability to be a mitigating circumstance.


              3.       Whether Baker’s 133-year sentence is unconstitutionally
                       disproportionate under Article 1, Section 16 of the Indiana
                       Constitution.


[2]   We affirm.


                                 Facts and Procedural History
[3]   On August 25, 2015, Martin County Sheriff James Travis Roush spoke to Allan

      Sims and Tom Tharp at Sims’ residence. Sheriff Roush “was looking for

      Nathan K. Baker regarding an unrelated auto theft report.” Appellant’s App.

      Vol. 2 at 36. Sims allowed Sheriff Roush to “check . . . on his property for any

      signs of” Baker. Id. Sheriff Roush did so but did not see any evidence of

      Baker’s presence, and he left.



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 2 of 14
[4]   However, Baker was in a wooded area near the men and overheard their

      conversation. Baker believed that Sims and Tharp had accused Baker of

      breaking into a nearby residence to Sheriff Roush. After he observed Sheriff

      Roush leave the premises, Baker broke into Sims’ residence and obtained a

      shotgun. Baker then confronted Sims by Sims’ garage and shot Sims “in the

      head area” with the shotgun, killing him. Appellant’s App. Vol. 2 at 36. A

      very loud air compressor was running nearby at the moment, and Tharp did not

      hear the shotgun blast because of it. Baker then confronted Tharp in a garden

      at the residence and shot Tharp multiple times, killing him as well.


[5]   After he murdered Sims, Baker dragged Sims’ body into the garage, pulled

      down the garage door, and padlocked a side door from the outside. After he

      murdered Tharp, he dragged Tharp’s body into the garden and covered the

      body with some beans and vegetation. Baker then stole Tharp’s vehicle from

      Sims’ residence and went to Tharp’s residence, broke into Tharp’s residence,

      and stole another shotgun. Baker later sold the shotgun he had used to murder

      Sims and Tharp to Doug May.


[6]   Tharp’s family reported him missing the next morning, on August 26, and

      Martin County law enforcement officers proceeded to Sims’ residence to try to

      locate him. There, they observed Sims’ body in the garage. They then

      contacted the Indiana State Police to open an investigation into an apparent

      homicide. A few hours later, officers discovered Tharp’s body in the garden.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 3 of 14
[7]   Later that day, Lawrence County law enforcement officers “spotted [Baker]

      driving a vehicle . . . that . . . belonged to Tom Tharp.” Id. Those officers

      attempted to initiate a traffic stop, but Baker fled. Baker crashed the vehicle,

      and officers were able to take him into custody. Baker had a shotgun in the

      vehicle.


[8]   Indiana State Police officers took custody of Baker and advised him of his

      Miranda rights both orally and in writing. After waiving those rights, Baker,

      over two different interrogations, admitted to killing Sims and Tharp; to

      attempting to hide Sims’ body in the garage and Tharp’s body in the garden; to

      stealing Tharp’s vehicle; to breaking into both of the victims’ residences and

      stealing shotguns from them; and to selling the murder weapon to May. Based

      on Baker’s confession, officers later recovered that weapon from May.


[9]   The State charged Baker with numerous offenses. Baker thereafter requested a

      competency hearing. The court appointed Dr. Michael Cantwell and Dr.

      Heather Henderson-Galligan to review Baker’s competency. Dr. Cantwell

      found Baker “competent to stand trial.” 1 Tr. Vol. 2 at 48. However, Dr.

      Henderson-Galligan concluded that Baker had an IQ of 70 and was not

      competent, stating as follows:


                 Mr. Baker is not a mentally or cognitively intact individual.
                 Although he is able to articulate his current charges and has
                 cursory awareness of the legal system process, he does not



      1
          Dr. Cantwell’s report is not in the record on appeal, and he did not testify before the court.


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019                      Page 4 of 14
               demonstrate an understanding of the legal system as a whole. He
               was able to demonstrate examples of right from wrong, when a
               scenario was provided by this examiner. Based on historical
               psychological data, including childhood school records leading to
               Social Security benefits, and this recent psychological testing, this
               expert opines, Mr. Baker does indeed have an intellectual
               disability rendering him cognitively unsound. Mr. Baker is not
               able to participate in his own defense and is clearly incompetent
               to stand trial.


       Appellant’s App. Vol. 3 at 7.


[10]   Thereafter, Baker was additionally evaluated by Dr. Megan Shaal. Dr. Shaal

       reviewed Baker’s medical, social, educational, employment, and legal histories

       and the evaluations by Dr. Cantwell and Dr. Henderson-Galligan. Dr. Shaal

       also administered an IQ test for Baker, which placed him “within the Average

       range of intellectual functioning.” Id. at 15. She further assessed that “[h]is

       mental status examination revealed a score indicating no presence of cognitive

       impairment.” Id. Her review of his educational history stated that, at a young

       age, Baker was “noted to be capable of making good grades but to not take

       responsibility for his schoolwork and to have a poor attitude towards school.”

       Id. at 14. Dr. Shaal concluded that Baker “understands the nature and

       objectives of his legal proceedings,” that he “presents with the ability to assist

       his attorney in his defense,” and that he “is competent to stand trial.” Id. at 19-

       20. Following a hearing, the court determined Baker competent to stand trial.


[11]   Largely based on Dr. Henderson-Galligan’s assessment, Baker moved to

       suppress his confession on the ground that he could not have voluntarily made

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 5 of 14
the statements he had made to investigating officers while he was in their

custody. The trial court rejected that argument after an evidentiary hearing. In

particular, explicitly relying on “the totality of the circumstances” and Dr.

Shaal’s evaluation, the court stated as follows:


        I do not believe there was police coercion. I do not believe the
        length of the interrogation and the location of the interrogation
        would lead to an involuntary statement. The continuity of the
        interrogation I do not believe that that would le[a]d to the
        involuntariness of the statement.


        The Defendant’s maturity is an issue. The Defendant’s
        education is a[n] issue. And the Defendant’s physical condition
        is not a[n] issue for me as to voluntariness. The Defendant’s
        mental health is a[n] issue. Whether the Defendant was
        intoxicated is not a[n] issue. That was proven that he had no
        medication or [il]licit drugs in his system. Whether a defendant
        was sleep deprived, that’s not an issue. And whether the police
        deceived the Defendant is not a[n] issue. So I’m looking at
        Defendant’s maturity, Defendant’s education, and Defendant’s
        mental health.


        Now, as it relates to the Defendant’s maturity, Mr. Baker was in
        his 30[s]. I reviewed and watched [his recorded interrogations]
        and I’ve . . . had Mr. Baker in front of me since 2015. He has
        never made any indication personally, on the tape, that he has an
        immaturity about him that would make his confession
        involuntary. In looking . . . [at] the school records, medical
        records, testimony of the doctors[,] . . . he didn’t finish school.
        He had issues with reading and comprehension. And yet there
        was testimony by Dr. Shaal about his ability to survive in the
        woods. And he had enough intelligence . . . to make it feasible
        that he could take care of himself even in difficult situations. So,
        I believe he had a particular maturity about him to know how to

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 6 of 14
        take care of himself and what was right and wrong as it relates to
        imposing upon others for his needs.


        Intellectually—first of all, I want it known right now that
        I . . . understand that his [IQ] is at a 70 unmedicated. The
        Defense used the term “he is a point above mental retardation.”
        That’s why we have the cutoff. He’s not considered mentally
        retarded . . . . So, I do not believe he is so low functioning that
        he doesn’t understand and did not understand the totality of the
        circumstances where he sat the day of the interrogation and what
        was going on.


        There is no issue as to the Miranda advisements. . . . [O]ne thing
        that I’ll note . . . —did he ask it more than on[ce]? “What am I
        being charged with?” He was very concerned about what he was
        being charged with. And . . . in fact, that’s one of the things that
        stands out in his initial hearing. The State had not completed the
        charging information yet. He was being held. It’s on videotape.
        When he first came before the Court, the Court wanted to make
        sure that . . . he ha[d] legal counsel immediately. And I read a
        probable cause affidavit to the Defendant, appointed legal
        counsel, and the State . . . asked for additional time . . . to file
        charges.


        . . . To me, that was very telling as to his ability to understand
        what was going on and understand the situation and the
        allegations against him because he was quite concerned. He was
        aware enough of the allegations and had great concern as to what
        he was being charged with. That was telling to me.


        . . . Baker was not in a psychological unit when questioning
        occurred. . . . He also was not on psychotropic drugs. . . .


        [A]nd I understand that ADHD is on the mental health scale, but
        it does not rise to the level of schizoaffective behavior. . . . Then

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 7 of 14
               in talking about . . . borderline feeblemindedness . . . [a]gain, I’m
               going back to— . . . he is . . . a point above. . . . He was not on
               the mental retardation scale. He was a point above. And
               therefore, I believe he had the ability to understand what he was
               doing and the severity of the situation as it relate[d] to his
               confession. And I believe his confession was voluntary.


       Tr. Vol. 3 at 120-24.


[12]   Baker renewed his objection to the admissibility of his confession at his ensuing

       jury trial, which the court overruled. The jury thereafter found Baker guilty as

       charged. The trial court entered judgment of conviction against Baker for two

       counts of murder, two counts of Level 4 felony burglary, and one count of

       Level 6 felony auto theft.


[13]   Following a sentencing hearing, the court found the following mitigating and

       aggravating circumstances:


               The Court finds the following mitigating factors: testimony of
               possible remorse by Indiana State Police, and [Baker was]
               cooperative with [the] investigation[.]


               [Baker’s] intellectual disability was mitigated by [the State] not
               filing . . . Life Without Parole.


               The Court finds the following aggravating factors: prior criminal
               history[:] 13 prior convictions, at least 5 Petitions to Revoke
               Probation and at least one Community Corrections Revocation;
               one victim was at least 65 years of age; multiple victims; one
               victim was a family member by marriage and provid[ed Baker]
               with a place to live; [Baker] had taken [a] multitude of drugs


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 8 of 14
               immediately preceding [the] acts; one victim was a long[-]time
               friend and neither victim provoked [Baker].


       Appellant’s App. Vol. 2 at 26. The court then sentenced Baker to an aggregate

       term of 133 years in the Department of Correction, the entirety of which is to be

       executed. This appeal ensued.


                                        Discussion and Decision
                                  Issue One: Admissibility of Confession

[14]   On appeal, Baker first asserts that the trial court abused its discretion under

       Article 1, Section 14 of the Indiana Constitution when it permitted the State to

       introduce Baker’s confession at his jury trial. 2 “The decision whether to admit a

       defendant’s custodial statement is within the discretion of the trial court.” Ellis

       v. State, 707 N.E.2d 797, 801 (Ind. 1999). “In making a determination as to the

       voluntariness of a statement, the trial court must consider the totality of the

       circumstances.” Id. “[W]e do not reweigh the evidence but instead examine

       the record for substantial, probative evidence of voluntariness.” Id.


[15]   Baker asserts on appeal that, under Article 1, Section 14, the absence of police

       coercion here is not dispositive on the issue of the voluntariness, or not, of his

       statements to police and that Baker’s purported “mental disease or defect”

       alone can render his statements involuntarily made. Appellant’s Br. at 30. He




       2
        Baker’s argument on appeal regarding the admissibility of his confession is limited to the Indiana
       Constitution and is not raised under the federal constitution. See Appellant’s Br. at 25-30.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019                  Page 9 of 14
       further asserts that the trial court’s ruling “was contrary to the vast weight of the

       evidence . . . regarding Baker’s intellectual disabilit[y].” Id. And he asserts that

       the trial court unduly emphasized his IQ and failed to apply the totality-of-the-

       circumstances test.


[16]   We reject Baker’s arguments. First, the trial court explicitly reviewed the

       totality of the circumstances, considering no fewer than eleven different factors

       in determining the voluntariness of Baker’s statements. Tr. Vol. 3 at 120-24.

       That the court thought Baker’s IQ deserved some commentary that other

       factors did not deserve does not demonstrate that the court unduly emphasized

       that factor or that the court applied the wrong test. Baker’s argument on those

       two points fail to place the court’s comments in their proper and explicit

       context.


[17]   Second, accepting for the sake of argument Baker’s position that his purported

       mental deficiency alone might establish involuntariness under Article 1, Section

       14, Baker’s argument on this issue merely requests this Court to reweigh the

       evidence that was before the trial court. Specifically, he asks that we give more

       weight to Dr. Henderson-Galligan’s opinion and to selected portions of Dr.

       Shaal’s evaluation than the trial court gave them. He likewise asks that we

       simply disregard the portions of Dr. Shaal’s evaluation and conclusions that

       were not favorable to him. We cannot reweigh the evidence. Dr. Shaal’s

       conclusions and the court’s own impressions of Baker based upon several

       encounters with him support the trial court’s judgment on this issue. See Wilkes

       v. State, 917 N.E.2d 675, 681 (Ind. 2009) (noting that it may be appropriate for

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 10 of 14
       the trial court to assess the defendant’s demeanor in determining the

       voluntariness of his prior statements). Accordingly, we affirm the trial court’s

       admission of Baker’s confession.


                              Issue Two: Abuse of Sentencing Discretion

[18]   Baker next asserts that the trial court abused its discretion when it sentenced

       him because the court, in Baker’s words, “refused to find Baker’s intellectual

       disability as a mitigating circumstance.” Appellant’s Br. at 36. Sentencing

       decisions “rest within the sound discretion of the trial court and are reviewed on

       appeal only for an abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490

       (Ind.), clarified on reh’g, 875 N.E.2d 218 (2007). “An abuse of discretion occurs

       if the decision is clearly against the logic and effect of the facts and

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

       deductions to be drawn therefrom.” Id. (quotations and citation omitted). A

       trial court may abuse its discretion by failing to enter a sentencing statement,

       entering findings of aggravating and mitigating factors unsupported by the

       record, omitting factors clearly supported by the record and advanced for

       consideration, or giving reasons that are improper as a matter of law. Id. at 490-

       91. “An allegation that the trial court failed to identify or find a mitigating

       factor requires the defendant to establish that the mitigating evidence is both

       significant and clearly supported by the record.” Id. at 493.


[19]   In its sentencing order, the trial court stated that it had declined to find Baker’s

       intellectual disability to be a mitigating circumstance because the State had

       already extended him a benefit for that circumstance by not seeking life without
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 11 of 14
       parole. Baker asserts on appeal that the State’s decision is neither here nor

       there with respect to the sentencing hearing and the evidence of his disability.


[20]   Despite the parties’ arguments on appeal, we need not decide whether the

       State’s decision not to seek life without parole mattered at all to this issue.

       Baker has not met his burden to show that this purported mitigating factor “is

       both significant and clearly supported by the record.” Id. Again, Dr. Shaal’s

       evaluation and conclusion that Baker did not suffer an intellectual disability,

       which is ample evidence that it is neither significant nor clearly supported, and

       Baker’s assertions on appeal simply disregard that evidence and seek to have

       this Court do the same, which we cannot do. We cannot say that the trial court

       abused its discretion when it declined to find Baker’s purported intellectual

       disability to be a mitigating circumstance.


                           Issue Three: Constitutionality of Baker’s Sentence

[21]   Lastly, Baker asserts that his 133-year aggregate sentence is unconstitutionally

       disproportionate under Article 1, Section 16 of the Indiana Constitution given

       his purported intellectual disability. 3 As our Supreme Court has explained:


                Though Article 1, Section 16 sweeps somewhat more broadly
                than the Eighth Amendment, its protections are still narrow. It is
                violated only when the criminal penalty is not graduated and
                proportioned to the nature of the offense. Though we cannot set




       3
        Although Baker cites some federal authority in this part of his brief, he expressly limits his analysis to
       Article 1, Section 16 of the Indiana Constitution and does not premise his argument on the Eighth
       Amendment to the United States Constitution.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019                    Page 12 of 14
               aside a legislatively sanctioned penalty merely because it seems
               too severe, Article 1, Section 16 requires us to review whether a
               sentence is not only within statutory parameters, but also
               constitutional as applied to the particular defendant. Our
               standard for an as-applied proportionality challenge depends on
               the type of penalty at issue. For . . . penalties not based on prior
               offenses, we have undertaken a simpler inquiry into whether the
               penalty is graduated and proportioned to the nature of the
               offense.


       Knapp v. State, 9 N.E.3d 1274, 1289-90 (Ind. 2014) (alteration, citations, and

       quotation marks omitted).


[22]   Baker’s argument on appeal, in essence, is that the State conceded that life

       without parole would be an inappropriate sentence due to his intellectual

       disability, yet, in effect, that is what he received. We reject Baker’s argument.

       The trial court was not prohibited from sentencing Baker to a term of years due

       to the State’s decision not to seek life without parole. And, again, the evidence

       most favorable to the trial court’s judgment does not demonstrate a significant

       and clearly supported intellectual disability in the first instance.


[23]   Baker has not met his burden on appeal to show that his sentence—133 years

       for two murders, two Level 4 felony burglaries, and one Level 6 felony auto

       theft—is unconstitutionally disproportionate under Article 1, Section 16. And

       he makes no argument on appeal that his sentence is inappropriate under

       Indiana Appellate Rule 7(B). Accordingly, we affirm his sentence.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 13 of 14
                                                 Conclusion
[24]   In sum, we affirm Baker’s convictions and sentence.


[25]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2744 | August 28, 2019   Page 14 of 14
