                                                 Nov 26 2014, 9:03 am


FOR PUBLICATION

ATTORNEY FOR APPELLANT:                     ATTORNEYS FOR APPELLEE:

KIMBERLY JACKSON                            GREGORY F. ZOELLER
Indianapolis, Indiana                       Attorney General of Indiana

                                            IAN MCLEAN
                                            Deputy Attorney General
                                            Indianapolis, Indiana




                            IN THE
                  COURT OF APPEALS OF INDIANA

DERRICK WEEDMAN,                            )
                                            )
     Appellant-Defendant,                   )
                                            )
            vs.                             )    No. 90A04-1311-CR-549
                                            )
STATE OF INDIANA,                           )
                                            )
     Appellee-Plaintiff.                    )


                    APPEAL FROM THE WELLS CIRCUIT COURT
                       The Honorable Kenton W. Kiracofe, Judge
                            Cause No. 90C01-1207-FB-8


                                 November 26, 2014

                            OPINION - FOR PUBLICATION


BARNES, Judge
                                       Case Summary

          Derrick Weedman appeals his conviction for Class B felony aggravated battery. We

affirm.

                                            Issues

          Weedman raises numerous issues, which we restate as:

                I.     whether the trial court properly admitted evidence that
                       Weedman had pursued and later withdrew an insanity
                       defense;

                II.    whether the deputy prosecutor committed misconduct;

                III.   whether the trial court properly allowed an emergency
                       medical technician (“EMT”) and a detective to testify
                       about statements made by Weedman’s mother;

                IV.    whether the trial court properly excluded photographs of
                       Weedman showing his 2008 traumatic brain injury;

                V.     whether the State presented sufficient evidence to rebut
                       Weedman’s claim of self-defense;

                VI.    whether the trial court abused its discretion when it
                       sentenced Weedman; and

                VII.   whether the sentence imposed by the trial court is
                       inappropriate.

                                            Facts

          Weedman suffered a traumatic brain injury in 2008 when he tried to kill himself by

driving his vehicle into his girlfriend’s parked car. After the injury, he lived with his mother

and stepfather, Ted Schlichter. Weedman was diagnosed with depression, schizophrenia, and

bipolar disorder after the brain injury.


                                               2
       On July 20, 2012, Weedman’s mother entered the house and found Schlichter on the

floor in the living room bleeding from his face and unconscious. Weedman was in the

kitchen. His drinking glass was broken, and the refrigerator was dented and had blood on it.

Weedman asked his mother to call 911, saying he had tried to but could not.

       Paramedics and police arrived, and Schlichter was taken to a hospital with severe

fractures to the bones in his face and swelling in his brain. Weedman was treated at an

emergency room for minor injuries to his hand and feet. He told the medical staff his injuries

occurred because he punched Schlichter in the face. When the police took Weedman to jail,

Weedman spontaneously told an officer, “It was him or me,” “I have a plate in my head and

if I’m hit there I would be a vegetable,” and “I can beat this.” Tr. p. 237. As a result of his

injuries, Schlichter underwent a long rehabilitation and continues to suffer permanent

impairments, including some vision loss, right vocal cord paralysis, and memory loss.

       The State charged Weedman with Class B felony aggravated battery. In August 2012,

Weedman filed a notice of insanity defense, and the trial court appointed two doctors to

examine him to determine his competency to stand trial and his sanity at the time of the

offense. Both doctors, Dr. Jere Lieb and Dr. Stephen Ross, reported that Weedman was

capable of understanding the wrongfulness of his conduct and assisting in his defense. In

May 2013, Weedman withdrew the insanity defense and his claim of incompetency.

       At the August 2013 trial, Weedman argued that he injured Schlichter in self-defense,

but the jury found Weedman guilty of aggravated battery. At the sentencing hearing, the trial

court found Weedman’s criminal history and the significant harm suffered by Schlichter to be


                                              3
aggravating factors. The trial court found no mitigating factors. The trial court sentenced

Weedman to twenty years in the Department of Correction. Weedman now appeals.

                                          Analysis

                      I. Admission of Withdrawn Insanity Defense

       Weedman argues the admission of evidence that he had asserted an insanity defense

and then withdrew it violated his Fifth Amendment protection against self-incrimination and

was used for other improper purposes. The deputy prosecutor mentioned during opening

statements that Weedman had filed and withdrawn a notice of insanity defense. Specifically,

the deputy prosecutor said:

                     The Defendant was arrested and he comes into this Court
              and he files a Notice of Insanity, files it with the Court and it’s
              in the Court’s records which means I did it, but I was insane
              when I did it, I wasn’t in my right mind. Well we have two
              psychiatrists review him and meet with him and they say no, you
              are not insane, you weren’t insane then. Then he files a Notice
              of Self-Defense which is I did it, but I was defending myself
              when I did it, we’re going to scrap that one about I was insane
              when I did it, now we’re going to go with I was defending
              myself in self-defense.

                      Dr. Jere Lieb and Dr. Ross are the two psychiatrists who
              evaluated him will tell you 1) that he’s not insane, they will tell
              you that the Defendant told them that he thought the victim
              came at him so he hit him once, hit him once. Those doctors
              will also tell you that the Defendant has anger control problems.

Tr. p. 113. Weedman did not object. During Weedman’s opening statement, his counsel

said, “Now [the deputy prosecutor] makes a . . . big deal about filing an insanity defense and

the withdrawing of that defense, that was not my client, that was not Mr. Weedman’s—”. Id.

at 118. The State objected, and the trial court sustained that objection.

                                              4
       The State called Dr. Lieb to testify. Dr. Lieb testified that he met with Weedman to

determine his competency and sanity and that he determined Weedman was both competent

to assist his attorney and sane at the time of the offense. Dr. Lieb extensively discussed

Weedman’s explanation of the incident. The State also called Dr. Ross to testify. Dr. Ross

also testified that he met with Weedman, that he determined Weedman was sane at the time

of the offense, and that he was able to assist with his defense. Dr. Ross testified that

Weedman had previously been diagnosed as being easily angered, being impulsive, and

exercising poor judgment. He also discussed Weedman’s medications, substance abuse

issues, and earlier suicide attempt. During closing arguments, the deputy prosecutor argued:

“Defendant claimed insanity then took that back. Then he claimed self-defense . . . .” Id. at

348.

       Weedman did not object to the evidence of his insanity defense and its withdrawal,

and the failure to make a contemporaneous objection to the admission of evidence at trial

generally results in waiver of the error on appeal. See Brown v. State, 929 N.E.2d 204, 207

(Ind. 2010). However, a claim that has been waived by a defendant’s failure to raise a

contemporaneous objection can be reviewed on appeal if the reviewing court determines

there was fundamental error. Id. The fundamental error exception is extremely narrow, and

applies only when the error constitutes a blatant violation of basic principles, the harm or

potential for harm is substantial, and the resulting error denies the defendant fundamental due

process. Id. The error claimed must either make a fair trial impossible or amount to clearly

blatant violations of basic and elementary principles of due process. Id. Weedman claims


                                              5
that the admission of evidence related to his withdrawn insanity defense resulted in

fundamental error.

       Our supreme court recently noted that a finding of fundamental error essentially

means the trial judge erred by not acting when he or she should have, even without being

spurred to action by a timely objection. Brewington v. State, 7 N.E.3d 946, 974 (Ind. 2014).

An error blatant enough to require a judge to take action sua sponte is necessarily blatant

enough to draw any competent attorney’s objection. Id. But the reverse is also true: if the

judge could recognize a viable reason why an effective attorney might not object, the error is

not blatant enough to be fundamental. Id.

       The Fifth Amendment to the United States Constitution states that “no person . . . shall

be compelled in any criminal case to be a witness against himself.” U.S. Const. amend. V.

The privilege against self-incrimination not only permits a person to refuse to testify against

himself at a criminal trial in which he is a defendant, but also privileges him not to answer

official questions put to him in any other proceeding where the answers might incriminate

him in future criminal proceedings. State v. Cass, 635 N.E.2d 225, 226 (Ind. Ct. App. 1994),

trans. denied.

       Weedman relies on Estelle v. Smith, 451 U.S. 454, 468, 101 S. Ct. 1866, 1876 (1981),

where the Supreme Court said “[a] criminal defendant, who neither initiates a psychiatric

evaluation nor attempts to introduce any psychiatric evidence, may not be compelled to

respond to a psychiatrist if his statements can be used against him at a capital sentencing

proceeding.” In Estelle, the trial court had sua sponte ordered a psychiatric examination of


                                              6
the defendant “for the limited, neutral purpose of determining his competency to stand trial . .

. .” Estelle, 451 U.S. at 465, 101 S. Ct. at 1874. The defendant in Estelle did not request a

psychiatric examination, did not raise an insanity defense, and was not informed of his right

to remain silent and the possible use of his statements made during the psychiatric

examination. At the sentencing hearing, the State “offered information obtained from the

court-ordered competency examination as affirmative evidence to persuade the jury to return

a sentence of death.” Id. at 466, 101 S. Ct. at 1874. “To meet its burden, the State used

respondent’s own statements, unwittingly made without an awareness that he was assisting

the State’s efforts to obtain the death penalty.” Id., 101 S. Ct. at 1875. The Supreme Court

held that the admission at the sentencing hearing of the defendant’s statements to the

psychiatrist violated the defendant’s Fifth Amendment rights.

       Estelle applies, Weedman says, because the State used the results of his court-ordered

examination “for a much broader objective that [sic] the original purpose of the examination.

The two doctors examined Weedman to determine his competency and sanity. However, the

State used the results of these examinations to prove Weedman’s guilt and character.”

Appellant’s Br. p. 21. To prove Weedman used unreasonable force, Weedman argues, the

State used one doctor’s testimony that Weedman was impulsive and had a temper. The State

tried to show his insanity defense was part of his effort to fabricate a defense, and it used the

testimony to show Weedman had a history of drug abuse, which Weedman says was

irrelevant. Weedman asserts, without explanation, that his statements to the doctors were not

given freely and voluntarily, so the State should not have used them for those purposes.


                                               7
       The State distinguishes Estelle on the basis that the defendant there did not request a

sanity evaluation, and such a defendant may not be compelled to respond to a psychiatrist if

his statements could later be used against him. Estelle, 451 U.S. at 468, 101 S. Ct. at 1876.

The State notes Weedman “was not ‘in custody’ and was not ‘compelled’ to travel to Dr.

Lieb’s and Dr. Ross’s offices for mental health evaluations (App.9; Tr. 241, 254).”

Appellee’s Br. p. at 27. Based on its characterization that the evaluations were something

Weedman voluntarily sought, the State argues “nothing in Estelle holds that a defendant can

launch an inquiry into probative evidence of his state of mind and actions during an alleged

offense and then, when the inquiry does not turn out as he likes, hide what he has learned by

‘withdrawing’ his request.” Id.

       We acknowledge the differences between this case and Estelle, which limit the

relevancy of Estelle here. See Taylor v. State, 659 N.E.2d 535, 540 (Ind. 1995) (noting that

Estelle was limited to cases in which the defendant “neither initiates a psychiatric evaluation

nor attempts to introduce any psychiatric evidence”). However, we find that other Indiana

cases give guidance in this issue of first impression. We begin by noting that Weedman

asserted self-defense at his trial, not an insanity defense. A valid claim of defense of oneself

or another person is legal justification for an otherwise criminal act. Ind. Code § 35-41-3-

2(a); Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002). Under Indiana Code Section 35-41-3-

2, a person is justified in using reasonable force to protect himself from what he reasonably

believes to be the imminent use of unlawful force by another person. Gillespie v. State, 832

N.E.2d 1112, 1117 (Ind. Ct. App. 2005). However, a person is not justified in using force if


                                               8
1) he provokes unlawful action by another person with intent to cause bodily injury to the

other person, or 2) has entered into combat with another person or is the initial aggressor,

unless he withdraws from the encounter and communicates to the other person the intent to

do so and the other person nevertheless continues or threatens to continue unlawful action.

Id. A claim of self-defense will also fail if the person “uses more force than is reasonably

necessary under the circumstances.” Sudberry v. State, 982 N.E.2d 475, 481 (Ind. Ct. App.

2013).

         The only statutory element of self-defense to which Weedman’s “state of mind” might

be relevant is his “reasonable belief” that he was being subjected to the imminent use of

unlawful force and his “reasonable belief” that his own use of force was necessary to prevent

serious injury to himself. See Gillespie, 832 N.E.2d at 1117. The other elements of self-

defense are plainly objective matters that cannot be determined by reference to the “state of

mind” of the defendant asserting self-defense. Id. at 1117-18. Thus, it is unclear to us how

Weedman’s withdrawn insanity defense or the other matters testified to by the doctors were

at all relevant to the issues in this case.

         The State asserts that “[a] request for a psychiatric examination waives the

defendant’s privilege against self-incrimination.” Appellee’s Br. p. 27(citing Fleenor v.

State, 622 N.E.2d 140, 148 (Ind. 1993), cert. denied, abrogated on other grounds by Dill v.

State, 741 N.E.2d 1230 (Ind. 2001)). The State appears to be referring to this language from

Fleenor: “The privilege against self-incrimination bars the State from subjecting the

defendant to a psychiatric examination without a warning of rights. However, the bar is


                                              9
waived once the defendant introduces psychiatric evidence in support of an insanity defense.”

Fleenor, 622 N.E.2d at 148. Weedman withdrew his insanity defense prior to trial. It

therefore is not apparent that he could have introduced psychiatric evidence “in support of”

such a defense, which was the step required for him to waive his privilege against self-

incrimination.

       In fact, “Indiana has long held that a defendant may not submit evidence relating to

mental disease or defect except through an insanity defense.” Marley v. State, 747 N.E.2d

1123, 1128 (Ind. 2001). Our supreme court held in Cardine v. State, 475 N.E.2d 696 (Ind.

1985), that, where a defendant withdrew his insanity defense and asserted self-defense

instead, the trial court properly excluded evidence of his earlier suicide attempt. The court

held: “When a defendant raises the defense of insanity, the general rule is that there is great

latitude in admitting evidence of other conduct of the defendant, limited to the extent that

such conduct must be relevant to the issue of insanity.” Cardine, 475 N.E.2d at 699. Where

the defendant withdraws his defense of insanity before trial, “the latitude in admitting other

prior conduct [becomes] substantially limited.” Id. Evidence of the suicide attempt was “too

remote and had little if any relationship to his defense.” Id.

       Our supreme court addressed a similar argument in Simpson v. State, 269 Ind. 495,

381 N.E.2d 1229 (1978). There, the defendant argued that the trial court should have

admitted a psychologist’s testimony regarding his lack of intent to commit robbery. The

court noted that insanity was not an issue at the trial. The court held: “The question of a

person’s intent at the time of the commission of a crime, not related to an issue of insanity, is


                                               10
a question of fact for the jury and not a proper subject of expertise.” Simpson, 269 Ind. at

502, 381 N.E.2d at 1233. The psychologist’s testimony was properly excluded because his

testimony “would have been nothing more than hearsay and was not necessary as an aid for

the jury’s determination of the issue of the presence or absence of criminal intent.” Id.

       Further, in Phelan v. State, 273 Ind. 542, 406 N.E.2d 237 (1980), the admissibility of

incriminating remarks made to a physician during a compulsory psychiatric examination were

discussed. The court held that, if such remarks were offered to demonstrate the mental

condition of the defendant, then they should be admitted. Phelan, 273 Ind. at 545, 406

N.E.2d at 239. If they were offered to demonstrate the guilt of the defendant, then they

should not be admitted over proper objection. Id. Similarly, in Taylor, 659 N.E.2d at 541,

our supreme court held that the State may not misuse its access to the defendant by

attempting to prove the defendant’s guilt through the testimony of its physician. “If the court

finds that the State is abusing the opportunity and using the defendant’s statements to

demonstrate guilt, it should not hesitate to exclude such statements.” Id. at 541. “There will

be cases, however, in which the defendant makes statements during the interview that are

both probative of his sanity at the time of the crime and incriminating.” Id. “In such cases, if

the prejudice to the defendant does not substantially outweigh its probative value, the

statements may be admitted. This determination we leave to the sound discretion of the trial

judge.” Id.




                                              11
        Given those cases, we conclude that the admission of evidence concerning

Weedman’s withdrawn insanity defense was erroneous.1 The evidence was simply not

relevant to the issues in the case. Given his withdrawal of his insanity defense, Weedman

would not have been able to admit the evidence at issue; thus, the State’s basis for admitting

the evidence is unclear.2 The State offers no legitimate basis for admitting the evidence.3 We



1
 We note that Rule 12.2 of the Federal Rules of Criminal Procedure addresses these issues in federal court
actions. Rule 12.2(c)(4) provides:

                No statement made by a defendant in the course of any examination
                conducted under this rule (whether conducted with or without the
                defendant’s consent), no testimony by the expert based on the statement,
                and no other fruits of the statement may be admitted into evidence against
                the defendant in any criminal proceeding except on an issue regarding
                mental condition on which the defendant:

                (A) has introduced evidence of incompetency or evidence requiring notice
                under Rule 12.2(a) or (b)(1), or

                (B) has introduced expert evidence in a capital sentencing proceeding
                requiring notice under Rule 12.2(b)(2).

Further, Rule 12.2(e) provides: “Evidence of an intention as to which notice was given under Rule 12.2(a)
or (b), later withdrawn, is not, in any civil or criminal proceeding, admissible against the person who gave
notice of the intention.”
2
 We further note that, even if Weedman had continued pursuing his insanity defense, the admission of the
psychiatrists’ testimony in the manner done here would have been improper. Indiana Code Section 35-36-
2-2 provides that psychologists or psychiatrists appointed to examine a defendant shall testify after “the
presentation of the evidence for the prosecution and for the defense, including the testimony of any mental
health experts employed by the state or by the defense.” Here, the State called Dr. Lieb and Dr. Ross as
part of its presentation of evidence. See Phelan, 273 Ind. at 544, 406 N.E.2d at 238 (holding that “the trial
court erred in allowing the court-appointed physician to testify during the State’s case in chief over the
Defendant’s objection”).

3
  Relying on Brewington, 7 N.E.3d 946, the State argues that Weedman’s failure to object to any of the
evidence at issue was a matter of defense strategy. Despite the language in Brewington, we believe such a
“strategy” argument is more properly addressed in the context of an ineffective assistance of trial counsel
issue in post-conviction proceedings. We simply have no information regarding Weedman’s trial
counsel’s thoughts on his strategy. Moreover, we need not address the State’s strategy argument because
we conclude that the admission of the evidence did not result in fundamental error.


                                                     12
conclude that the State was improperly attempting to prove Weedman’s guilt through the

discussion of his withdrawn insanity defense and the doctors’ testimony.

       Although we conclude that the admission of evidence regarding Weedman’s

withdrawn insanity defense was erroneous, we cannot say that the admission resulted in

fundamental error. The evidence supporting the jury’s guilty verdict was overwhelming.

Weedman admitted to hitting Schlichter, although he claimed self-defense. Doctors testified

at the trial that Schlichter’s face was essentially “flattened” and that such injuries are

typically seen in car accidents or falls from large heights. Tr. p. 300. Dr. Scott Wagner

testified that there were at least four separate blows to Schlichter’s face but probably more

than seven or eight blows. Weedman claimed that he hit Schlichter once, hit him with a glass

as Weedman fell on Schlichter, and kicked Schlichter a couple times. Dr. Wagner testified

that Weedman’s explanation would not account for Schlichter’s injuries. Rather, Dr. Wagner

testified that, rather than kicking, “it would be more of a stomping type injury . . . .” Id. at

305. According to Dr. Wagner, after the blow fracturing Schlichter’s sinus and causing the

brain bruise, he would have been immediately debilitated. Dr. Donald Reed testified that

there were more than enough strikes to render Schlichter unconscious. The evidence was

overwhelming that Weedman’s reaction to Schlichter’s alleged actions did not qualify as self-

defense because he used more force than was reasonably necessary under the circumstances.

See Halliburton v. State, 1 N.E.3d 670, 683 n.7 (Ind. 2013) (“Where evidence of guilt is

overwhelming any error in the admission of evidence is not fundamental.”). Consequently,




                                              13
we conclude that, although the admission of the evidence was erroneous, it did not amount to

fundamental error.

       Weedman also argues that, after the State discussed and admitted evidence regarding

the withdrawn insanity defense, Weedman attempted to also discuss the issue and the trial

court sustained the State’s objection. Specifically, during Weedman’s cross-examination of

Dr. Lieb, the trial court sustained the State’s objection to Weedman asking whether

Weedman had any “shortcomings at all with his ability to assist in his defense.” Tr. p. 244.

According to Weedman, “[t]he trial court’s rulings essentially ensured the State freely could

use the worst of the evidence arising from Weedman’s withdrawn insanity defense and

Weedman could not respond.” Appellant’s Br. p. 23.

       What might otherwise be inadmissible hearsay evidence may become admissible

where a party “opens the door” to questioning on that evidence. Turner v. State, 953 N.E.2d

1039, 1055 (Ind. 2011). The evidence relied upon to “open the door” must leave the trier of

fact with a false or misleading impression of the facts related. Ortiz v. State, 741 N.E.2d

1203, 1208 (Ind. 2001). Although we might agree that the State opened the door, Weedman

has not demonstrated that the State’s evidence created a false or misleading impression that

should have been corrected with Weedman’s evidence. Moreover, even if the trial court

erred by excluding Weedman’s evidence after having admitted the State’s evidence, we

conclude that the alleged error was harmless for the same reasons already discussed.

                              II. Prosecutorial Misconduct




                                             14
        Next, Weedman argues that the deputy prosecutor committed misconduct when he

commented on Weedman’s post-arrest silence and referenced Weedman’s tattoo.4 In

reviewing a claim of prosecutorial misconduct properly raised in the trial court, we

determine: (1) whether misconduct occurred, and if so, (2) “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. Ryan v. State, 9 N.E.3d 663, 667 (Ind. 2014)

(quoting Cooper v. State, 854 N.E.2d 831, 835 (Ind. 2006)). “Whether a prosecutor’s

argument constitutes misconduct is measured by reference to case law and the Rules of

Professional Conduct. The gravity of peril is measured by the probable persuasive effect of

the misconduct on the jury’s decision rather than the degree of impropriety of the conduct.”

Id. (quoting Cooper, 854 N.E.2d at 835). To preserve a claim of prosecutorial misconduct,

the defendant must—at the time the alleged misconduct occurs—request an admonishment to

the jury, and if further relief is desired, move for a mistrial. Id.

        Our standard of review is different where a claim of prosecutorial misconduct has

been waived for failure to preserve the claim of error. Id. The defendant must establish not

only the grounds for prosecutorial misconduct but must also establish that the prosecutorial

misconduct constituted fundamental error. Id. at 667-68. “Fundamental error is an extremely

narrow exception to the waiver rule where the defendant faces the heavy burden of showing

that the alleged errors are so prejudicial to the defendant’s rights as to ‘make a fair trial



4
 Weedman also argues that the deputy prosecutor committed misconduct by discussing Weedman’s
withdrawn insanity defense, but we have previously addressed the admissibility of that evidence and
determined that its admission did not result in fundamental error. Consequently, we will not address that

                                                    15
impossible.’” Id. at 668 (quoting Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002)). In

other words, to establish fundamental error, the defendant must show that, under the

circumstances, the trial judge erred in not sua sponte raising the issue because alleged errors

(a) “constitute clearly blatant violations of basic and elementary principles of due process”

and (b) “present an undeniable and substantial potential for harm.” Id.

                                        A. Reference to Tattoo

          During opening arguments, the prosecutor said the evidence would show Weedman

“has anger control problems, temper problems, in fact indicative of his philosophy he has the

words “‘total chaos’ tattooed on his arm, his hand, conveniently covered up by a band-aid

today.” Tr. p. 114. Weedman objected and requested a mistrial. The trial court sustained the

objection but denied the request for a mistrial.5

          To preserve a claim of prosecutorial misconduct, a defendant must object and request

an admonition. Delarosa v. State, 938 N.E.2d 690, 696 (Ind. 2010). If the defendant is not

satisfied with the admonition, the defendant must move for a new trial. Id. Failure to comply

waives the prosecutorial misconduct claim. Id. Weedman does not argue on appeal that the

reference to his tattoo was fundamental error.                Weedman acknowledges that “[t]he

prosecutorial misconduct related to the tattoo evidence, standing alone, likely did not place

Weedman in grave peril . . . .” Appellants’ Br. p. 34. We agree. We cannot say that the brief




evidence further.

5
    The PSI indicates that Weedman’s tattoo says, “Anarchy.” App. p. 402.

                                                    16
reference to the tattoo placed Weedman in grave peril or amounted to fundamental error,

though the remark was dangerously gratuitous.

                     B. Comments on Weedman’s Post-Arrest Silence

       The police gave Weedman a Miranda warning when he was arrested. In Doyle v.

Ohio, 426 U.S. 610, 619, 96 S. Ct. 2240, 2245 (1976), the United States Supreme Court held

that under the Fourteenth Amendment a prosecutor may not use the silence of a defendant

who has been arrested and given Miranda warnings to impeach the defendant. Sobolewski v.

State, 889 N.E.2d 849, 857 (Ind. Ct. App. 2008), trans. denied. Miranda warnings inform a

person of his right to remain silent and assure him, at least implicitly, that his silence will not

be used against him. Id. An alleged Doyle violation may be reviewed under the fundamental

error doctrine. Id. “Because a Doyle violation is so egregious and so inherently prejudicial,

reversal is the norm rather than the exception.” Teague v. State, 891 N.E.2d 1121, 1126 (Ind.

Ct. App. 2008).

       An error of this type is harmless only when the court, after assessing the record to

determine the probable impact of the improper evidence on the jury, can conclude beyond a

reasonable doubt that the error did not influence the jury’s verdict. Id. In analyzing whether

a Doyle violation is harmless beyond a reasonable doubt, we examine five factors: (1) the use

to which the prosecution puts the post-arrest silence; (2) who elected to pursue the line of

questioning; (3) the quantum of other evidence indicative of guilt; (4) the intensity and

frequency of the reference; and (5) the availability to the trial court of an opportunity to grant




                                                17
a motion for mistrial or give a curative instruction. Kubsch v. State, 784 N.E.2d 905, 914-15

(Ind. 2003).

       Weedman asserts the deputy prosecutor “repeatedly inquired or made statements to the

effect that Weedman had never revealed to the State his version of events presented at trial.”

Appellant’s Br. pp. 30-31. It does not appear Weedman objected to any of the Doyle

violations he now alleges, so he must show any error was fundamental. He points

specifically to: 1) testimony by Detective Betz that she approached Weedman for an

interview but he said he wanted an attorney; 2) Detective Betz’s testimony that she believed

she could not legally continue speaking to Weedman after he said he wanted an attorney; 3)

the deputy prosecutor’s questions on cross-examination asking Weedman why, when police

responded to the home and found Schlichter injured on the floor, he did not “go over to the

officer and give him this story [that he was defending himself from Schlichter],” Tr. p. 340,

and the deputy prosecutor’s question “you do tell somebody I don’t want to talk to my mom

because she can’t keep her mouth shut. Why didn’t you tell this other part of your story?,”

id.; 4) testimony by Deputy Steven Wendling, who asked Weedman what happened and

Weedman replied “I’m taking the Fifth on that,” id. at 227; and 5) the deputy prosecutor’s

reference in closing argument to Weedman’s mother’s inability to keep her mouth shut and

his comment “you don’t have to worry about people keeping their mouth shut if you are

defending yourself and you are innocent. You want everybody to know that stuff . . . you

want to tell them that stuff . . . that’s something you want brought out, not something you




                                             18
want to hide.” Id. at 344. The deputy prosecutor later asked “[w]hy don’t we hear that story

until today[?]” Id. at 347.

       Weedman relies on Kubsch, 784 N.E.2d at 915, where there was a Doyle violation.

The State twice played a videotape where Kubsch invoked his right to remain silent:

              The use to which the State, in its case in chief, put those portions of the
              videotape showing Kubsch invoking his right to silence is rather
              apparent: Kubsch was unwilling to talk with police even though his
              wife and step-son had just been killed, giving the impression that
              Kubsch had something to hide or else he would assist in locating their
              killers. And although the amount of other evidence indicative of
              Kubsch’s guilt as set forth in the “Facts” section of this opinion is
              sufficient to sustain the convictions, that evidence is circumstantial and
              was fiercely contested at trial.

Kubsch, 784 N.E.2d at 915.

       The State first notes some of Weedman’s statements were made before he received

Miranda warnings, so references to them were not Doyle violations. See Peters v. State, 959

N.E.2d 347, 353 (Ind. Ct. App. 2011) (observing that a defendant’s post-arrest, post-Miranda

silence may not be used to impeach him, but a defendant’s post-arrest, pre-Miranda silence

may be used for impeachment purposes). Weedman asserts those statements that were pre-

Miranda also encompassed Weedman’s silence from the time of arrest through the date of

trial, i.e., Detective Betz’s statement that Weedman never initiated another conversation.

       The State admits to only one “real instance of a Doyle problem,” that of an officer’s

testimony that he asked Weedman what happened and Weedman replied, “I’m taking the

Fifth on that.” Appellee’s Br. p. 31; Tr. p. 227. The State characterizes that testimony as

part of a “run-on answer,” that could not have been anticipated or prompted by the


                                              19
prosecutor’s question about what a photograph depicted. Appellee’s Br. p. 31. The State

points out that the deputy prosecutor interrupted Deputy Wendling and told him, “Just stick

to what the pictures are.” Tr. p. 227. Therefore, the State says, there was no prosecutorial

misconduct.

       Even if we were to conclude that the deputy prosecutor’s questions and comments

were Doyle violations, Weedman did not object to the questions and comments at issue, and

he has failed to demonstrate that the alleged misconduct amounted to fundamental error. For

the reasons already mentioned, the State presented overwhelming evidence that Weedman’s

self-defense claim failed due to his excessive use of force against Schlichter. Given the

overwhelming evidence of his excessive force, Weedman claim of fundamental error fails.

See, e.g., Sobolewski, 889 N.E.2d at 858 (“Given the overwhelming evidence offered to

impeach Sobolewski, as well as the evidence of his guilt, we conclude that it is clear beyond

a reasonable doubt that any error in the State’s use of Sobolewski’s post-arrest silence to

impeach him did not contribute to his conviction and, therefore, was harmless.”).

       III. Admission of Testimony Regarding Statements by Weedman’s Mother

       Weedman argues that the trial court abused its discretion by admitting testimony

regarding certain statements made by his mother. The trial court has broad discretion to rule

on the admissibility of evidence. Guilmette v. State, 14 N.E.3d 38, 40 (Ind. 2014). We

review a trial court’s rulings for an abuse of that discretion, and we reverse only when

admission is clearly against the logic and effect of the facts and circumstances and the error

affects a party’s substantial rights. Id.


                                             20
        Weedman argues that the trial court abused its discretion by admitting evidence of

statements made by Cindy Schlichter, Weedman’s mother and Schlichter’s wife, to EMT

Hillary Gaskill and to Detective Diane Betz of the Wells County Sheriff’s Department.

According to Weedman, both EMT Gaskill and Detective Betz’s testimony was hearsay and

was “extremely prejudicial” because it diminished Weedman’s claim of self-defense.

Appellant’s Br. p. 38.

        EMT Gaskill testified that Cindy told her that Weedman wanted to kill himself

because of what he had done to Schlichter, that Weedman and Schlichter did not get along,

and that she had broken up fights between the two men before. Weedman objected, and the

trial court allowed the testimony for impeachment purposes only. Weedman does not argue

that admission for impeachment purposes was error.6 Cindy had earlier testified that she did

not recall telling the EMT that Weedman wanted to kill himself. During closing arguments,

the deputy prosecutor said:

                Mother also told the EMT that the Defendant told her “I should
                probably just kill myself because I went too far with Mr.
                Schlichter.” “I went too far.” Pretty easy word to understand.
                “I did more than I should have. I should have stopped here and I
                went too far.” “This was enough and I went beyond that.” “I
                went too far, I ought to just kill myself.” I’m that upset because
                I went too far. Again, not something you say if you are
                innocent.

Tr. pp. 344-45.



6
   In his reply brief, Weedman asserts the State “is incorrect in claiming that Weedman does not allege the
trial court erred in admitting for impeachment purposes [the EMT’s] testimony.” Appellant’s Reply Br. p.
14. He directs us to page 36 of his Appellant’s brief, but there is no discussion, or even mention, of
impeachment on that page.

                                                    21
       Evidence admitted only for impeachment may not be used as substantive evidence.

Lawrence v. State, 959 N.E.2d 385, 389 (Ind. Ct. App. 2012), trans. denied. The State does

not argue that the testimony was admissible as substantive evidence, and we agree that the

evidence was improperly used during closing arguments as substantive evidence. Instead, the

State contends that any error in use of the evidence as substantive evidence rather than

impeachment was harmless.

       We must disregard errors in the admission of evidence as harmless unless they affect a

party’s substantial rights. VanPatten v. State, 986 N.E.2d 255, 267 (Ind. 2013); Ind. Trial

Rule 61. In determining whether error in the introduction of evidence affected the

defendant’s substantial rights, we must assess the probable impact of the evidence upon the

jury. Id. When a conviction is supported by substantial evidence of guilt sufficient to satisfy

this Court that there is no substantial likelihood that the questioned evidence contributed to

the conviction, the error is harmless. Ware v. State, 816 N.E.2d 1167, 1175 (Ind. Ct. App.

2004). Given the overwhelming evidence of excessive force used by Weedman in injuring

Schlichter, we conclude that there is no substantial likelihood that the use of the testimony as

substantive evidence rather than impeachment evidence contributed to the conviction.

       As for Detective Betz’s testimony, Detective Betz testified that Cindy told her that,

according to Weedman, Schlichter had “come at” Weedman and was going to hit Weedman.

Tr. p. 206. Cindy told Detective Betz that Weedman would not tell Cindy any more

information “because he knew she couldn’t keep her mouth shut.” Id. Weedman did not

object to this testimony. Because he did not object, he must demonstrate that the admission


                                              22
of the evidence resulted in fundamental error. Brown, 929 N.E.2d at 207. However, the

fundamental error exception is extremely narrow, and applies only when the error constitutes

a blatant violation of basic principles, the harm or potential for harm is substantial, and the

resulting error denies the defendant fundamental due process. Id. The error claimed must

either make a fair trial impossible or amount to clearly blatant violations of basic and

elementary principles of due process. Id.

       We need not address whether the testimony was properly admitted because we

conclude that, even if its admission was improper, it did not result in fundamental error. It

was so prejudicial as to be fundamental error, Weedman says, because it diminished

Weedman’s credibility and his claim of self-defense because it suggested his defense was

fabricated and Weedman and Schlichter had a violent history. However, Cindy’s assertion

that Schlichter had “come at” Weedman and was going to hit him was helpful to Weedman’s

self-defense theory. Tr. p. 206. The assertion that Weedman did not believe Cindy could

“keep her mouth shut,” simply does not amount to fundamental error. Id. To the extent that

the testimony diminished his self-defense claim, that claim was diminished much more by the

overwhelming expert medical testimony regarding Schlichter’s extensive injuries and the

amount of times he was hit by Weedman. The testimony did not make a fair trial impossible.

                 IV. Admission of Evidence of Traumatic Brain Injury

       Weedman argues that the trial court abused its discretion by excluding evidence of his

traumatic brain injury. The trial court has broad discretion to rule on the admissibility of

evidence. Guilmette, 14 N.E.3d at 40. We review a trial court’s rulings for an abuse of that


                                              23
discretion, and we reverse only when admission is clearly against the logic and effect of the

facts and circumstances and the error affects a party’s substantial rights. Id.

       Weedman sought to admit photographs of himself showing his 2008 brain injury. The

trial court granted the State’s motion in limine to exclude the photographs and would not

allow their admission at trial when Weedman sought to introduce them. He argued at trial

that the photographs were relevant to show the brain injury, which was the basis for his

reasonable belief he would be killed or seriously injured if Schlichter landed a punch to

Weedman’s head. The State argues Weedman presented no doctor as a sponsoring witness

and only a doctor could testify about damage to Weedman’s skull. The trial court noted that

evidence of Weedman’s prior injury had already been admitted and that there had “been no

connection . . . thus far that these injuries in any way relate to the alleged incident in this

case.” Tr. p. 321.

       When a defendant asserts self-defense, any fact that reasonably would place a person

in fear or apprehension of death or bodily injury is admissible. Russell v. State, 577 N.E.2d

567, 568 (Ind. 1991). There need not be actual danger—a good faith belief is sufficient.

Shepard v. State, 451 N.E.2d 1118, 1120-21 (Ind. Ct. App. 1983). Weedman relies on Brand

v. State, 766 N.E.2d 772, 782 (Ind. Ct. App. 2002), trans. denied, where we determined the

trial court should not have excluded Brand’s testimony that his victim sold drugs, was a

member of a gang, and had offered to sell Brand a gun. We noted evidence of the victim’s

character may be admitted to show that the victim had a violent character giving the

defendant reason to fear him. Brand, 766 N.E.2d at 780. The victim’s reputation for


                                              24
violence is pertinent to a claim of self-defense. Id. Thus, the victim’s reputed character,

propensity for violence, prior threats and acts, if known by the defendant, may be relevant to

the issue of whether a defendant had fear of the victim prior to utilizing deadly force against

him. Id. Therefore, a defendant is entitled to support his claim of self-defense by

introducing evidence of matters that would make his fear of the victim reasonable. Id.

       The photos Weedman wanted admitted do not indicate Schlichter had a violent

character, but Weedman argues they, like the testimony in Brand, illustrate “the

reasonableness of [Weedman’s] fear of attack by the victim and the need to defend himself.”

Appellant’s Br. p. 41. The applicability of Brand is questionable as there we explicitly said

the evidence introduced by a defendant to show his apprehension of the victim must imply a

propensity for violence on the part of the victim. Brand, 766 N.E.2d at 780. Weedman’s

evidence indicates why he had reason to fear Schlichter, but it does not show Schlichter had

violent tendencies.

       Regardless, we conclude that, even if the photos should have been admitted, any error

was harmless. As the trial court noted, evidence regarding Weedman’s traumatic brain injury

and fear of being hit on the head was repeatedly discussed during the trial. The photos were

merely cumulative of other evidence presented at the trial. “Where the wrongfully excluded

testimony is merely cumulative of other evidence presented, its exclusion is harmless error.”

Sylvester v. State, 698 N.E.2d 1126, 1130 (Ind. 1998). Therefore, Weedman was not

prejudiced by the exclusion of the evidence.

                              V. Sufficiency of the Evidence


                                              25
         Weedman next argues that the State failed to rebut his claim of self-defense. Indiana

Code Section 35-41-3-2(c) provides: “A person is justified in using reasonable force against

another person to protect himself or a third person from what he reasonably believes to be the

imminent use of unlawful force.” A claim of self-defense requires a defendant to have acted

without fault, been in a place where he or she had a right to be, and been in reasonable fear or

apprehension of bodily harm. Henson v. State, 786 N.E.2d 274, 277 (Ind. 2003). “However,

the force used must be proportionate to the requirements of the situation.” McKinney v.

State, 873 N.E.2d 630, 643 (Ind. Ct. App. 2007), trans. denied. A claim of self-defense will

fail if the person “uses more force than is reasonably necessary under the circumstances.”

Sudberry, 982 N.E.2d at 481. “Where a person has used more force than necessary to repel

an attack the right to self-defense is extinguished, and the ultimate result is that the victim

then becomes the perpetrator.” Hollowell v. State, 707 N.E.2d 1014, 1021 (Ind. Ct. App.

1999).

         The standard of review for a challenge to the sufficiency of evidence to rebut a claim

of self-defense is the same as the standard for any sufficiency of the evidence claim. Wilson,

770 N.E.2d at 800. We neither reweigh the evidence nor judge the credibility of witnesses.

Id. If there is sufficient evidence of probative value to support the conclusion of the trier of

fact, then the verdict will not be disturbed. Id. When a claim of self-defense is raised and

finds support in the evidence, the State has the burden of negating at least one of the

necessary elements. Id. If a defendant is convicted despite his or her claim of self-defense,




                                               26
we will reverse only if no reasonable person could say that self-defense was negated by the

State beyond a reasonable doubt. Id. at 800-01.

       Weedman testified that Schlichter initiated the altercation by insulting him and then

twisting his finger. According to Weedman, Schlichter swung at him and missed, and

Weedman was in fear for his life due to his brain injury from 2008. Weedman claimed that

he hit Schlichter once, hit him with a glass as Weedman fell on Schlichter, and kicked

Schlichter a couple times. Even if the jury accepted Weedman’s explanation of how the

altercation started, the State presented more than enough evidence that Weedman responded

with more force than was reasonably necessary under the circumstances. Doctors testified at

the trial that Schlichter’s face was essentially flattened and that such injuries are typically

seen in car accidents or falls from large heights. Dr. Wagner testified that there were at least

four separate blows to Schlichter’s face but probably more than seven or eight blows. Dr.

Wagner testified that Weedman’s explanation would not account for Schlichter’s injuries.

Rather, Dr. Wagner testified that, rather than kicking, “it would be more of a stomping type

injury . . . .” Tr. p. 305. According to Dr. Wagner, after the blow fracturing Schlichter’s

sinus and causing the brain bruise, he would have been immediately debilitated. Dr. Reed

testified that there were more than enough strikes to render Schlichter unconscious. The

evidence was overwhelming that Weedman’s reaction to Schlichter’s alleged actions did not

qualify as self-defense because he used more force than was reasonably necessary under the

circumstances. The evidence is sufficient to sustain Weedman’s conviction.

                           VI. Sentencing—Abuse of Discretion


                                              27
       Sentencing decisions are within the sound discretion of the trial court. Anglemyer v.

State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. However, a trial

court may be found to have abused its sentencing discretion in a number of ways, including:

(1) failing to enter a sentencing statement at all; (2) entering a sentencing statement that

explains reasons for imposing a sentence where the record does not support the reasons; (3)

entering a sentencing statement that omits reasons that are clearly supported by the record

and advanced for consideration; and (4) entering a sentencing statement in which the reasons

given are improper as a matter of law. Id. at 490-91. The reasons or omission of reasons

given for choosing a sentence are reviewable on appeal for an abuse of discretion. Id. at 491.

The weight given to those reasons, i.e. to particular aggravators or mitigators, is not subject

to appellate review. Id.

       Weedman argues that the trial court abused its discretion because it found no

mitigating factors. Weedman argues that the trial court should have found that his mental

illness and the fact that Schlichter “induced or facilitated” the offense were mitigators.

Appellant’s Br. p. 50. A trial court is not obligated to accept a defendant’s claim as to what

constitutes a mitigating circumstance. Rascoe v. State, 736 N.E.2d 246, 249 (Ind. 2000). A

claim that the trial court failed to find a mitigating circumstance requires the defendant to

establish that the mitigating evidence is both significant and clearly supported by the record.

Anglemyer, 868 N.E.2d at 493.

       The trial court considered but rejected Weedman’s mental health and the fact that

Schlichter instigated the altercation as a mitigating factors. The trial court stated:


                                              28
              I believe there’s probably enough testimony during the trial and
              [I] certainly believe Mr. Schlichter by all accounts was an
              alcoholic. I’m sure that, I think it’s uncontested that his
              interaction with Mr. Weedman, Mr. Schlichter’s interaction[s]
              with Mr. Weedman were difficult, that there was a lot of
              animosity between the two parties, but I have to also consider
              looking at the Defendant’s criminal history over this period of
              time that he would have lived in Mr. Schlichter’s home probably
              fueled some of that animosity. So as much as Mr. Weedman
              wants to blame Mr. Schlichter for the way he was treated, Mr.
              Weedman needs to probably also consider his own conduct
              during that period of time as well.

                                           *****

              Also considered Mr. Weedman you have, the injuries you suffer
              from that you are asking for leniency on are the result and
              counsel wants me to consider the previous injuries to your head,
              I can’t not consider the fact that those injuries were self-inflicted
              by you when you attempted to commit suicide at one point by
              driving your vehicle into another vehicle that had just been
              occupied by your girlfriend at that time . . . . The point is you
              caused, these injuries to yourself are self-imposed.

Tr. p. 381.

       According to Weedman, there was no evidence that his girlfriend had just exited the

vehicle that he hit in 2008. The State concedes that there was no evidence presented that

Weedman’s girlfriend had just exited the vehicle but argues that the trial court was referring

to another woman who was slightly injured when Weedman’s vehicle also hit her vehicle.

Regardless, although the trial court briefly mentioned this fact, its main focus during the

discussion was the fact that Weedman’s injuries were self-inflicted. We are confident that

this error did not affect the sentence imposed by the trial court. See Anglemyer, 868 N.E.2d

at 491 (requiring remand for resentencing “if we cannot say with confidence that the trial


                                               29
court would have imposed the same sentence had it properly considered reasons that enjoy

support in the record”).

       Further, Weedman argues that, regardless of the fact that his injuries were self-

inflicted, he was left with a significant brain injury, and that Schlichter verbally abused and

attempted to physically abuse Weedman “for years.” Appellant’s Br. p. 50. The trial court

clearly considered those arguments and rejected them as mitigating factors. Although

Schlichter’s behavior may have left much to be desired, the trial court properly pointed out

that Weedman contributed to the situation too. Although evidence of Weedman’s mental

health issues were presented, “[i]n order for a [defendant’s] mental history to provide a basis

for establishing a mitigating factor, there must be a nexus between the defendant’s mental

health and the crime in question.” Steinberg v. State, 941 N.E.2d 515, 534 (Ind. Ct. App.

2011), trans. denied. Weedman has not established a nexus between his mental health and

the offense. Weedman has not shown that either proposed mitigator was significant or

clearly supported by the record.

                              VII. Inappropriate Sentencing

       Weedman argues that his sentence is inappropriate under Indiana Appellate Rule 7(B).

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 offenses and the character of the offender. When considering

whether a sentence is inappropriate, we need not be “extremely” deferential to a trial court’s

sentencing decision. Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). Still,


                                              30
we must give due consideration to that decision. Id. We also understand and recognize the

unique perspective a trial court brings to its sentencing decisions. Id. Under this rule, 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).

       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). We “should focus on the forest—the

aggregate sentence—rather than the trees—consecutive or concurrent, number of counts, or

length of the sentence on any individual count.” Id. When reviewing the appropriateness of

a sentence under Rule 7(B), we may consider all aspects of the penal consequences imposed

by the trial court in sentencing the defendant, including whether a portion of the sentence was

suspended. Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010).

       The nature of the offense is that thirty-one-year-old Weedman brutally beat his

stepfather, leaving him permanently disabled and legally blind. Although Weedman claimed

that Schlichter was the initial aggressor, Weedman’s response was vicious. One expert

opined that Schlichter sustained “stomping” injuries. Tr. p. 305. Weedman essentially

“flattened” Schlichter’s face. Id. at 300.

       A review of the character of the offender reveals that Weedman has a history of

criminal offenses. As a juvenile, he was placed in programs of informal adjustment in 1996

for incorrigibility and illegal possession of an alcoholic beverage and in 2000 for


                                              31
incorrigibility. In 2001, he was placed on a program of formal adjustment for possession of

marijuana and illegal possession of an alcoholic beverage. As an adult, he was convicted of

Class A misdemeanor resisting law enforcement and Class A misdemeanor possession of

marijuana in 2002. In 2003, he pled guilty to Class C misdemeanor operating a vehicle while

intoxicated and Class C misdemeanor illegal possession of an alcoholic beverage. Judgment

was withheld, and the case was later dismissed. In the military, he was charged with

wrongful possession of drugs and received a “punitive discharge.” App. p. 406. In 2008, he

was convicted of Class A misdemeanor invasion of privacy, and he later violated his

probation by committing a new offense. In 2009, he was convicted of Class D felony battery

resulting in bodily injury to a police officer and Class A misdemeanor battery resulting in

bodily injury. We also note that, in 2008, Weedman drove his vehicle into his girlfriend’s

parked car in a suicide attempt. He was charged with Class A misdemeanor criminal

recklessness, but that charge was later dismissed. As a result of the suicide attempt,

Weedman sustained a traumatic brain injury. His PSI notes that Weedman has been

diagnosed with “Substance-Induced Mood Disorder, Antisocial Personality Disorder,

Impulse Control Disorder, Personality Disorder, Bipolar Disorder, and Malingering.” Id. at

404.

       Weedman argues that, given his traumatic brain injury and mental illness, we should

reduce his twenty-year sentence to twelve years. However, it appears that, even before his

2008 suicide attempt, Weedman had difficulty conforming to society’s expectations. Given




                                            32
the significant injuries to Schlichter and Weedman’s failure to learn from his past criminal

convictions, we cannot say that the sentence imposed by the trial court is inappropriate.

                                       Conclusion

       Although it was erroneous to admit evidence of Weedman’s withdrawn insanity

defense, we conclude that the error did not result in fundamental error based on the

overwhelming evidence of Weedman’s excessive use of force. For the same reason, the

deputy prosecutor’s alleged misconduct did not result in fundamental error. Testimony

regarding statements made by Weedman’s mother to an EMT was harmless, and testimony

regarding statements made by his mother to a detective did not result in fundamental error.

We recognize that a significant amount of evidence was improperly admitted at this trial. At

some point, the cumulative effect of the improper evidence would reach a tipping point and

make a fair trial impossible. See Myers v. State, 887 N.E.2d 170, 196 (Ind. Ct. App. 2008)

(acknowledging “the possibility that the cumulative effect of trial errors may warrant

reversal”), trans. denied. However, given the avalanche of evidence of Weedman’s excessive

force, we conclude that the tipping point was not reached here.

       We also conclude that any error in the exclusion of photographs of Weedman’s

traumatic brain injury was harmless because the photographs were cumulative of other

evidence admitted regarding the brain injury. The State presented sufficient evidence to

rebut Weedman’s self-defense claim, and the trial court properly sentenced Weedman.

Finally, we conclude that his twenty-year sentence is not inappropriate. We affirm.




                                            33
Affirmed.

MAY, J., and CRONE, J., concur.




                                  34
