MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                         FILED
this Memorandum Decision shall not be
                                                                          Nov 19 2019, 5:53 am
regarded as precedent or cited before any
court except for the purpose of establishing                                   CLERK
                                                                           Indiana Supreme Court
the defense of res judicata, collateral                                       Court of Appeals
                                                                                and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
R. Brian Woodward                                       Curtis T. Hill, Jr.
Crown Point, Indiana                                    Attorney General of Indiana
                                                        Justin F. Roebel
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Hill,                                             November 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-16
        v.                                              Appeal from the Lake Superior
                                                        Court
State of Indiana,                                       The Honorable Salvador Vasquez
Appellee-Plaintiff.                                     Trial Court Cause No.
                                                        45G01-1609-MR-4



Tavitas, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                    Page 1 of 34
                                              Case Summary

[1]   James Hill appeals his conviction and sentence for murder in perpetration of

      robbery based on several alleged procedural and sentencing errors. We affirm

      in part, reverse in part, and remand for resentencing.


                                                     Issues

[2]   Hill raises several issues for our review:


              I.      Whether the admission of a deceased witness’ deposition
                      violated Hill’s federal and state constitutional rights.


              II.     Whether the trial court erred in excluding Hill’s proffered
                      evidence and denying Hill’s request for an offer of proof.


              III.    Whether the trial court erred in denying Hill’s motion for
                      mistrial.


              IV.     Whether the State improperly solicited opinion evidence
                      regarding Hill’s guilt.


              V.      Whether the cumulative effect of the alleged errors
                      violated Hill’s federal and state constitutional rights.


              VI.     Whether Hill was properly sentenced.


                                                     Facts

[3]   The pre-trial facts, as stated in Hill’s interlocutory appeal, follow:


              In the early morning of November 14, 1980, Hammond Police
              Officer Larry Pucalik was murdered during an attempted robbery

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 2 of 34
           at the Holiday Inn-Southeast located in Hammond, Indiana.
           Later that day, Hammond Police Detective Robert Seaman
           received an anonymous phone call from a person who stated,
           “Pierre Catlett killed your cop.”


           On November 18, 1980, police arrested Hill on an unrelated
           charge. When he was arrested, Hill “made the spontaneous
           utterance ‘I know you guys think I shot that Hammond cop.’”


                                                  *****


           On June 22, 2012, the State charged Hill, [Larry] Mayes, and
           Catlett with Officer Pucalik’s murder.[ 1] On March 27, 2014, the
           charge against Hill was dismissed.


                                                  *****


           On September 1, 2016, the State again [charged] Hill [ ] [with]
           murder, murder in perpetration of robbery, and Class A felony
           attempted robbery.


Hill v. State, 92 N.E.3d 1105, 1107-1109 (Ind. Ct. App. 2018), trans. denied

(citations omitted). Hill filed a motion to dismiss 2 wherein he alleged a due

process violation from the State’s belated filing of charges. The trial court

denied the motion to dismiss, and we affirmed on interlocutory appeal.




1
 The charge against Catlett was dismissed because he was serving another sentence; and the charge against
Mayes was dismissed after he was deemed incompetent to stand trial.
2
    Hill filed his motion to dismiss on December 2, 2016.


Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                Page 3 of 34
[4]   Subsequently, Hill moved to suppress his March 9, 1981, statement to police in

      which he admitted that he drove the robbery getaway vehicle. At the

      suppression hearing on May 10, 2018, Raymond Myszak of the Hammond

      Police Department testified that, on March 9, 1981, Hill notified Myszak’s

      partner—Detective Dennis Williams—that Hill wanted to speak with Williams.

      Hill, who was incarcerated, met with Myszak and Williams and stated: “I

      drove the killer car.” Motion to Suppress Tr. Vol. II p. 13. When Williams

      asked what Hill meant, Hill responded: “The [car] when the policeman was

      killed at the Holiday Inn.” Id. Myszak testified that, after Hill received his

      Miranda advisement, Hill provided additional details of the crime to Williams

      and Myszak. The trial court denied Hill’s motion to suppress Myszak’s and

      Williams’ ensuing report and Hill’s admission. 3


[5]   Williams died in 2017. On May 14, 2018, the State moved to: (1) declare

      Williams “unavailable” as defined in the Indiana Rules of Evidence; and (2) use

      Williams’ video deposition from an unrelated federal civil case at Hill’s murder

      trial. Hill’s counsel responded as follows:


                 In October[ ] 2010 the defendant (HILL) initiated a civil rights
                 suit in federal court against the City of Hammond and several
                 individual[s including] present and/or former Hammond Police
                 Officers not including Dennis Williams, one of the lead
                 detectives in the instant case. The suit was premised upon
                 HILL’s allegation of a wrongful conviction for the offenses of
                 rape, unlawful deviate conduct and robbery. During the



      3
          Hill does not specifically appeal the trial court’s denial of the motion to suppress Hill’s admission.


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                         Page 4 of 34
              pendency of that civil case, on June 22, 2012, HILL was charged
              with the offense alleged in this matter in cause 45G01-1206-MR-
              00006 which was later dismissed by the State on March 27, 2014.


      Appellant’s App. Vol. III p. 52. At a motion in limine hearing on May 17,

      2018, the trial court found Williams was unavailable and determined that: (1)

      the parties and interests of the parties were similar to those in the instant case;

      (2) Williams was under oath during his deposition; and (3) Hill’s attorney

      conducted “significant cross-examination” during the deposition regarding

      Hill’s murder charge. Motion in Limine Tr. Vol. II p. 26. The trial court also

      deemed any issue stemming from Hill’s absence from the deposition to be

      waived by Hill’s attorney’s failure to object during the deposition.


[6]   Hill’s jury trial was held from August 27 through 31, 2018. At the outset, the

      trial court heard argument on the State’s motion to quash the subpoena of

      Thomas Vanes, one of Hill’s proffered witnesses. Vanes served as a prosecuting

      attorney, prosecuted Hill in other charges, and was aware of the murder

      investigation. The trial court took the State’s motion to quash under

      advisement and deferred its ruling until the issue arose at trial.


[7]   The State called several witnesses who testified regarding the events of

      November 14, 1980, when Officer Pucalik was killed. Donald Smulsk of the

      Highland Police Department testified that he responded to the murder scene

      and learned from a witness that two black males were involved in the shooting

      and that they “fled the scene in an older model blue Chevy.” Tr. Vol. IV p. 55.



      Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 5 of 34
[8]    Keith Foor, who worked at the Lake County Sheriff’s Department’s crime lab

       in 1980, testified that he arrived at the Holiday Inn at 3:54 a.m. and observed a

       blue denim drawstring bag on top of the cash register. Later in the trial, three

       witnesses testified that they each observed Hill with the same blue bag at

       different times and places. 4 Investigator Ronald Gennarelli of the City of

       Hammond Police Department testified that he noticed a scrape mark on the

       curb and a hubcap by the Holiday Inn’s entrance and delivered the hubcap to

       the crime lab the day following the incident.


[9]    Officer Monte Miller from the Hammond Police Department testified that, after

       the robbery, he saw a car that matched the description of the getaway vehicle at

       a nearby apartment complex; the ignition was “popped,” which can indicate

       that a vehicle is stolen. Tr. Vol. IV p. 137. When Mike Reilly of the Lake

       County Police Department processed the 1973 blue Chevrolet Impala, he

       noticed the vehicle’s missing hubcap. Foor later determined that the hubcap

       from the Holiday Inn was a likely match for the blue Impala.


[10]   In the early morning hours on November 14, 1980, while searching the vehicle,

       an officer found a piece of paper under the passenger seat. Miller testified:

       “When [the officer] pulled [the paper] out, he had noticed that it was a note

       from a person that apparently had been kidnapped and left a note in the back




       4
           Officers could not identify any manufacturer that made the same bag and deemed it to be homemade.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                Page 6 of 34
       seat.” Id. at 139. Hill objected and moved for a mistrial on the grounds that the

       reference to a kidnapping violated a motion in limine order. The trial court

       denied Hill’s motion for mistrial; however, the trial court gave the jury the

       following limiting instruction regarding Miller’s statement about a kidnapping:


                  So jury, the last comment by the witness was something that I’m
                  going to ask you to strike and ignore and it should not come into
                  any consideration. It’s not part of this case as it’s a matter that is
                  immaterial to what we’re dealing with here. You are to not
                  consider the last comment by the witness as you move forward
                  with your discussions about this case. You may continue.


       Tr. Vol. IV p. 142. 5 Miller also testified that the vehicle’s glove box was forced

       open. Officers inventoried items from the vehicle, including decorative pillows.


[11]   The State also called T.W., 6 who met Hill two days prior to the shooting. T.W.

       testified as follows: on November 12, 1980, T.W. and a friend hitchhiked from

       Marion, Illinois, to T.W.’s mother’s house in Lake County, Indiana. T.W. and

       her friend climbed into a blue Impala with Hill and another man. During the

       night, the blue Impala got a flat tire; Hill told the passengers he would borrow

       his cousin’s car and soon returned with another blue Impala. The passengers

       got into the second blue Impala, which T.W. recalled had decorative pillows in

       the back of the vehicle. T.W. did not have a driver’s license and carried a piece




       5
         Both the trial court and Hill’s counsel indicated that they did not believe the State intentionally elicited this
       statement.
       6
           The State uses initials to identify T.W. For simplicity, we will do the same.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                        Page 7 of 34
       of paper bearing her identifying information. While T.W. was in the second

       blue Impala, T.W. put the paper under the front passenger seat. T.W. was

       subsequently dropped off near her mother’s house.


[12]   Michael Solan, Jr., of the 1980 Hammond Police Department, testified that

       three people were involved in the robbery; and that the case was reopened in

       2009 after a confidential informant provided new information. Next, Myszak

       testified as follows regarding his investigation: in 1981, Hill implicated Catlett

       and Mayes and admitted his own involvement. Hill told Myszak and Williams

       that he drove Mayes and Catlett to the Holiday Inn; that Mayes and Catlett

       went into the Holiday Inn while Hill waited outside; and that Hill drove the

       robbery getaway vehicle. Hill also told Myszak that he believed the vehicle

       “struck something” as he drove away from the Holiday Inn. Id. at 14.


[13]   During the jury trial and outside the presence of the jury, Hill renewed his

       motion to exclude Williams’ deposition and placed his objection on the record.

       Portions of the deposition testimony were read to the jury with several

       redactions. The deposition testimony revealed that: (1) Williams responded to

       the Holiday Inn shortly after the robbery; (2) Hill admitted to Williams and

       Myszak that Hill drove the “killer car that held up the Holiday Inn”; (3) the

       vehicle Hill drove that evening was found with a missing right front hubcap that

       matched the hubcap recovered near the Holiday Inn; (4) witnesses identified

       Hill as the owner of the blue denim bag found at the Holiday Inn; and (5)

       investigators believed the blue Impala was the robbery getaway car. Tr. Vol.

       VII p. 17. In his deposition testimony, Williams testified further that he also

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 8 of 34
       obtained photographs of Hill and several of Hill’s classmates from Hill’s high

       school; he showed the photographs to T.W. and her friend; and both women

       identified Hill as the initial driver of the second blue Impala.


[14]   After the State rested, Hill sought—over the State’s objection—to introduce

       former prosecuting attorney Vanes’ testimony to demonstrate that Vanes: (1)

       who was familiar with Hill and who worked closely with Williams, did not

       know, in 1981, that Hill confessed his involvement in Pucalik’s death; and (2)

       could not explain the State’s delay in charging Hill. The trial court excluded

       Vanes’ testimony and denied Hill’s related request to make an offer of proof.


[15]   The jury found Hill not guilty of murder and guilty of murder in the

       perpetration of robbery and attempted robbery. At Hill’s sentencing hearing on

       October 3, 2018, 7 the trial court identified two mitigating factors in its written

       order—Hill’s lack of criminal history and Hill was seventeen at the time of the

       offense. In its written order, the trial court identified the following aggravating

       factors:


                  The character of the defendant at the time of the offense was
                  dishonest and manipulative.


                  The Court finds that given the nature of the offense and the
                  character of the defendant, the sentence imposed is appropriate




       7
           The trial court entered judgment for murder in the perpetration of robbery but not for attempted robbery.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                     Page 9 of 34
               and proper. Any reduction or lessor sentence will depreciate the
               seriousness of [the] crime committed.


       Appellant’s App. Vol. III p. 165. The trial court sentenced Hill to forty-seven

       years in the Department of Correction.


[16]   Hill filed a motion to correct error in which he argued, in part, that the

       aggravators used by the trial court violated Blakely v. Washington, 542 U.S. 296,

       124 S. Ct. 2531 (2004), reh’g denied. After a hearing, the trial court denied Hill’s

       motion to correct error. In its written order, the trial court found:


               The aggravator noted in the Defendant’s Motion to Correct Error
               was in reference to the appropriateness of the sentence imposed
               and the Court’s finding that no lesser sentence was warranted as
               it would depreciate the seriousness of the crime committed. Our
               [S]upreme [C]ourt has held that “it is not error to enhance a
               sentence based upon the aggravating circumstance that a
               sentence less than the enhanced term would depreciate the
               seriousness of the crime committed.” Mathews v. State, 849
               N.E.2d 578, 590 (Ind. 2006).


               The second significant aggravator[] used by this Court was the
               character of the Defendant. As articulated in Morgan v. State, 829
               N.E.2d 12, 17 (Ind. 20[0]5):


                       “We do not see how the Sixth Amendment is implicated
                       or endangered by permitting judges to use aggravators to
                       enhance sentences so long as the underlying facts
                       supporting the aggravator are found by a jury or admitted
                       by a defendant. Put another way, Sixth Amendment
                       rights are not implicated when the language of an
                       aggravator is meant to describe the factual circumstances,
                       not to serve as a fact itself.”
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 10 of 34
               This Court found that the Defendant’s character at the time of
               the offense was dishonest and manipulative. This determination,
               both substantial and compelling, is derived from the underlying
               facts of the case as presented to the jury.


       Id. at 180-81. Hill now appeals his conviction and sentence.


                                                    Analysis

                             I.      Admission of the Williams Deposition

[17]   Hill argues that the admission of Williams’ deposition violated Hill’s rights

       under the Confrontation Clauses set forth in the Sixth Amendment of the

       United States Constitution and Article 1, Section 13 of the Indiana

       Constitution. “‘The trial court has wide latitude in ruling on the admissibility

       of evidence in determining its relevancy.’” Williams v. State, 749 N.E.2d 1139,

       1142 (Ind. 2001) (quoting Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987)).

       “We review a trial court’s ruling as to relevance for an abuse of discretion.”

       Williams, 749 N.E.2d at 1142. “[E]ven if the trial court erroneously excludes

       admissible evidence, we will not reverse a defendant’s conviction unless his

       substantial rights have been affected.” Id. When, however, there is an issue of

       constitutional law, we review those claims de novo. Brittain v. State, 68 N.E.3d

       611, 617 (Ind. Ct. App. 2017), trans. denied.


[18]   Under both the federal and state constitutions, Hill argues the deposition was

       improperly admitted because the deposition was “limited in focus” to Hill’s

       civil suit against the police department and several officers “seeking re-dress for

       a totally unrelated arrest and conviction.” Appellant’s Br. p. 19. According to

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 11 of 34
       Hill, therefore, there was no “motivation to elicit facts related to the current

       charges for which Hill was convicted.” Id. at 19-20. Hill argues that, due to the

       context in which the deposition was taken, Hill’s counsel was unable to develop

       several facts on cross-examination of Williams that he otherwise would have

       developed. Finally, Hill argues that the reading of Williams’ deposition at the

       trial was not a proper hearsay exception under Indiana Rule of Evidence 804.


[19]   The State argues the evidence was properly admitted because Williams was

       unavailable, and Hill had an opportunity to confront Williams. Moreover, the

       State argues that Hill was aware, at the time of Williams’ deposition, of the

       charges filed against Hill. Specifically, the charges against Hill were initially

       filed in June 2012, and Williams’ deposition was taken in November 2012.

       Although the 2012 charges were dropped in 2014, and the State filed new

       charges against Hill in 2016, the allegations were substantially the same and

       had not been dismissed at the time of Williams’ deposition.


[20]   At the outset, we note that we have not been provided with the full copy of the

       deposition. Our record on appeal only includes the deposition as it was read to

       the jury. While it appears that the parties and the trial court discussed the entire

       deposition at several points during the trial and pre-trial motions, the full

       deposition was not made a part of our record on appeal. In other words, we do

       not have the same opportunity to review the deposition as did the trial court.

       Hill, as appellant, had the burden to present us with a complete record to

       resolve the issues he raises on appeal. See Ford v. State, 704 N.E.2d 457, 460-61



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 12 of 34
       (Ind. 1998) (“Appellant bears the burden of presenting a record that is complete

       with respect to the issues raised on appeal.”).


                                              A. Sixth Amendment

[21]   First, we address Hill’s argument under the Sixth Amendment. “The Sixth

       Amendment to the United States Constitution provides that ‘in all criminal

       prosecutions the accused shall enjoy the right . . . to be confronted with the

       witnesses against him.’” State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993).

       “This right of confrontation is made obligatory on the states by the Fourteenth

       Amendment.” Id. “General agreement exists that the essential purpose of the

       Sixth Amendment right of confrontation is to insure that the defendant has the

       opportunity to cross-examine the witnesses against him.” Id.


[22]           In Crawford v. Washington, the U.S. Supreme Court held that [the
               Sixth Amendment] prohibits “admission of testimonial
               statements of a witness who did not appear at trial unless he was
               unavailable to testify, and the defendant had a prior opportunity
               for cross-examination.” 541 U.S. 36, 53-54, 124 S. Ct. 1354[ ]
               (2004). Though leaving “testimonial statement” undefined, the
               Court stated that the label “applies at a minimum to prior
               testimony at a preliminary hearing, before a grand jury, or at a
               former trial; and to police interrogations.” [ ]


       Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019) (citations omitted).


[23]   Here, it is undisputed that Williams was unavailable during Hill’s trial, and

       deposition testimony is exactly the type of “core” testimonial statement our

       Supreme Court acknowledged in Cardosi. See id. (defining “core” constitutional


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 13 of 34
       testimony as “statements that were made under circumstances which would

       lead an objective witness reasonably to believe that the statement would be

       available for use at a later trial”). The question remains, however, under the

       Sixth Amendment, whether Hill had the opportunity for prior cross-

       examination of Williams.


[24]   Because we were not provided with the full deposition, we do not know: (1)

       who questioned Williams; 8 (2) whether there was further discussion regarding

       the purpose of the deposition—whether for civil or criminal purposes; and (3)

       the entire context in which the questions were asked. We can only assume, as

       Hill indicated in response to the State’s request to use the deposition, that Hill’s

       civil attorney objected to the nature of the questions during the deposition.


[25]   It appears undisputed, however, that Hill’s attorney was present at the

       deposition and questioned Williams. Moreover, according to the portion of the

       deposition read at trial, it was clear to all parties that Williams’ health was

       failing and that it was vital to preserve Williams’ testimony in the civil case.

       Further, the murder charges against Hill were filed months prior to Williams’

       deposition. These facts demonstrate that there was significant opportunity for

       cross-examination. See Berkman v. State, 976 N.E.2d 68, 77-78 (Ind. Ct. App.

       2012) (“At no point in Barraza’s deposition [ ] is there the slightest indication

       that Berkman was denied the opportunity to attempt to undermine Barraza or



       8
        There is some indication of which attorneys questioned Williams; however, we again note our review is
       hampered by not having the full deposition.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019              Page 14 of 34
       his testimony by asking any questions he saw fit. To the extent that Berkman

       did not do so, it was not because he was denied the opportunity.”). Hill was

       not deprived of his Sixth Amendment rights to cross-examine Williams.


                                            B. Indiana Constitution

[26]   Next, we must analyze the additional requirements of the Indiana Constitution

       to determine whether Hill’s constitutional rights were violated by the use of

       Williams’ deposition testimony at Hill’s murder trial. Under Article 1, Section

       13 of the Indiana Constitution, a criminal defendant is guaranteed certain

       rights, including that “the accused shall have the right to meet the witnesses

       face to face.” Owings, 622 N.E.2d at 950. Our Supreme Court has

       acknowledged that the rights guaranteed by Article 1, Section 13 of the Indiana

       Constitution are not “necessarily identical” to those given by the Sixth

       Amendment. Id.


[27]   “‘The Indiana Constitution recognizes [ ] something unique and important in

       requiring the face-to-face meeting between the accused and the State’s witness

       as they give their trial testimony.’” Id. at 950-51 (quoting Brady v. State, 575

       N.E.2d 981, 987 (Ind. 1991)). “Nonetheless, neither the Sixth Amendment nor

       Article 1, Section 13 ha[s] been interpreted literally to guarantee a criminal

       defendant all rights of confrontation at every trial for every witness. Otherwise,

       no testimony of any absent witness would ever be admissible at trial.” Id. at

       951. “However, where a defendant has never had the opportunity to cross-

       examine a witness and meet him face to face, admission of prior testimony at a

       subsequent proceeding violates the [ ] right of confrontation.” Id.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 15 of 34
[28]   Moreover, “[c]riminal defendants generally have no constitutional right to

       attend depositions.” Id. This rule “is not without exception[,]” however. Id.

       “For example, admission at trial of a deposition which defendant was not

       permitted to attend, taken by the State and given by a witness unavailable for

       trial, results in the defendant never having the opportunity to confront that

       witness. Such a procedure may violate the defendant’s right to confrontation.”

       Id. at 952. Because confronting the witnesses against the accused “is an

       individual privilege relating to procedure at trial,” the privilege may be waived.

       Id. “Where there is no showing [ ] that a defendant is unable to attend a

       deposition and he makes no objection to it proceeding, the defendant waives his

       right to confrontation even if the witness is unable to testify at trial.” Id.


[29]   Finally, in Brady, 575 N.E.2d at 987, our Supreme Court held:


               The right is not absolute. It is secured where the testimony of a
               witness at a former hearing or trial on the same case is
               reproduced and admitted, where the defendant either cross-
               examined such witness or was afforded an opportunity to do so,
               and the witness cannot be brought to testify at trial again because
               he has died, become insane, or is permanently or indefinitely
               absent from the state and is therefore beyond the jurisdiction of
               the court[ ]. [ ] In such cases, there has been a prior face-to-face
               meeting with the opportunity to cross-examine the witness before
               a trier of fact in the same case and a necessity for the
               reproduction of testimony exists. Such an opportunity for cross-
               examination in a prior civil case, however, will not suffice. [ ]




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 16 of 34
       Thus, we must determine if Hill’s Indiana constitutional rights were violated

       because: (1) he did not have the opportunity to examine Williams face-to-face;

       or (2) deposition testimony was improperly used from a prior civil proceeding.


                                           i.       Face to face requirement

[30]   Regarding the face-to-face requirement, there are several unknowns because we

       do not have the entire deposition; accordingly, Hill has not met his burden on

       appeal. In its brief, the State suggests that Hill was not present 9 for the

       deposition and alleges that Hill waived any issue stemming from his absence by

       his counsel’s failure to object. It is likely that Hill was not present, as the trial

       court, which had the opportunity to review the entire deposition, stated:


                I think we would have a different situation if [counsel] had not
                only [ ]object[ed] to Mr. Hill not being present at the deposition,
                but [ ] if he – he maintained that [ ] this is a civil case and all
                you’re doing is asking questions about the criminal case.


                [B]ased on the silence in the record, [ ] no objection voiced by
                [counsel] in Mr. Hill not being at [ ] the civil deposition, Mr.
                Hill’s presence is, in fact, waived.


       Motion in Limine Tr. p. 36. Accordingly, Hill has waived his right to examine

       Williams face-to-face. Hill has neither presented evidence to discredit the trial




       9
         We note that, in the State’s motion to admit the deposition, the prosecuting attorney represented that, at the
       time of the deposition, “the defendant was present, as was his criminal attorney. . . .” Appellant’s App. Vol.
       III p. 19.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                   Page 17 of 34
       court’s finding of waiver nor provided further context for the deposition. Hill

       has not demonstrated that his state constitutional rights were violated.


                                  ii.      Deposition from prior proceeding

[31]   As noted above in Brady, the opportunity to come face to face with the witness,

       as required by the Indiana Constitution, in a “prior civil case . . . will not

       suffice.” Brady, 575 N.E.2d at 987. The State argues that the civil deposition

       was not “prior” because it occurred while criminal charges were pending

       against Hill. Hill counters that, even so, Brady mandates reversal because, in a

       civil proceeding, “counsel had no reason to develop that testimony as he would

       have in the context of a [criminal] deposition[.]” Appellant’s Reply Br. p. 10.


[32]   Brady takes the “prior civil deposition” language from our Supreme Court’s

       opinion in Green v. State, 184 N.E. 183 (Ind. 1933). In Green, the defendant was

       the president of a savings, loan, and trust company and was indicted for

       “receiving a deposit, knowing that the company was insolvent, whereby the

       deposit was lost to the depositor.” Green, 184 N.E. at 184. Our Supreme Court

       considered whether


               the trial court erred in permitting the [S]tate to introduce in
               evidence the record of a civil proceeding wherein the [S]tate of
               Indiana, on relation of Luther F. Symons, bank commissioner of
               the [S]tate of Indiana, was petitioner, and Garrett Savings, Loan
               & Trust Company, was defendant, [ ] and wherein [ ] it was
               found that such company was in a failing and insolvent
               condition, and where a receiver was appointed for said company.


       Id. at 185-86. Our Supreme Court held:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 18 of 34
               One of the questions for the jury to decide [in the present
               criminal case] was the solvency or insolvency of the bank, but by
               the introduction of the records and judgment in the civil action,
               the question was already decided in that particular case, and we
               know from common experience that a jury would probably
               follow the finding, on the question of solvency, as found in the
               civil action; and this being true the right to cross-examine was
               taken away from the defendant, and also his constitutional right
               to meet the witness face to face. . . .


                                                    *****


               The [ ] introduction of the judgment and records in the
               receivership proceeding enabled the [S]tate to put the appellant,
               although shielded by the presumption of innocence and the right
               to face the witness and cross-examine, upon the defensive as to a
               vital fact involved in the charge against him by simply producing
               the record of the receivership proceedings in a [ ] different case.


               We hold that it was error to admit the proceedings and judgment
               of the civil action in evidence.


       Id. at 187.


[33]   Hill’s case is distinguishable from Green. Here: (1) the prior deposition occurred

       in a case in which Hill was also a party; and (2) Williams’ testimony did not

       settle a final issue but, rather, detailed the investigative process, including how

       the evidence supported Hill’s arrest for Pucalik’s murder. See id. at 187-88

       (“[Green] did not institute the proceeding and was not individually a party to

       the receivership action, and therefore would not be bound by the actions taken

       [ ] in a civil action when on trial as defendant in a criminal prosecution.”).

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 19 of 34
[34]   We also agree with the State that Hill’s case is distinguishable from Brady and

       Green based on timing. Although the civil case here was filed first in time, Hill’s

       initial murder charge was pending for some time prior to Williams’ deposition.

       Moreover, the parties knew that Williams’ health was failing and that the

       deposition was necessary to preserve his testimony. Although better practice

       would have been to subpoena and depose Williams under the criminal cause

       instead of the civil cause, practically all parties had an opportunity to question

       Williams and were aware of his importance as a witness. Further, several

       deposition questions focused on the murder. 10 Thus, it appears that, although

       conducted in a separate civil cause, the deposition here covered aspects of Hill’s

       pending murder charges. The trial court did not violate Hill’s right to confront

       Williams by admitting the “prior civil case” deposition; and we find no

       violation of Hill’s Indiana constitutional rights therefrom. See Brady, 575

       N.E.2d at 987.


                                                    C. Evidence Rules

[35]   Indiana Rule of Evidence 804(b)(1)(B) states that former testimony is not

       excluded by the hearsay rule if the testimony “is now offered against a party

       who had—or, in a civil case, whose predecessor in interest had—an opportunity

       and similar motive to develop it by direct, cross-, or redirect examination.”




       10
          Again, we are limited in our review by the fact that we only have the portion of the deposition read at the
       trial and are unable to locate the full deposition in the record of the instant case.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                   Page 20 of 34
[36]   Hill appears to focus on the motive requirement. Based on the portion of the

       deposition read at trial, the deposition was taken to preserve Detective

       Williams’ testimony due to his ill health. Even if, as Hill argues, Hill’s attorney

       stated during the deposition that the parties should not focus on the murder

       investigation, several questions were asked regarding the murder investigation.

       Our review under Indiana’s Rules of Evidence does not warrant a finding that

       the trial court abused its discretion in admitting the evidence.


                             II.      Offer of Proof and Excluded Evidence

[37]   Hill next argues that the trial court erred by excluding certain evidence and by

       refusing Hill’s related request to make an offer of proof. Again, we review the

       exclusion of evidence for an abuse of discretion. See Williams, 749 N.E.2d at

       1142. Generally, a party has a right to make an offer of proof and “‘it is

       reversible error for a trial court to deny a party the opportunity to explain the

       substance, relevance, and admissibility of excluded evidence with an offer of

       proof.’” Harman v. State, 4 N.E.3d 209, 216 (Ind. Ct. App. 2014) (quoting Duso

       v. State, 866 N.E.2d 321, 324 (Ind. Ct. App. 2007)), trans. denied.


[38]   Offers of proof “are most beneficial when the trial court must decide whether to

       exclude proffered testimony. A valid offer to prove must explain: (1) the

       testimony’s substance; (2) the testimony’s relevance; and (3) the grounds for

       admitting the testimony.” Bedolla v. State, 123 N.E.3d 661, 666-67 (Ind. 2019).

       While beneficial to the trial court and the parties, offers of proof “are invaluable

       to reviewing courts.” Id. at 667.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 21 of 34
[39]   Hill sought to introduce former deputy prosecutor Vanes’ testimony. The State

       moved to quash Vanes’ subpoena. At trial, the following colloquy ensued:


               THE COURT:           So the issue would turn on what [ ] you plan
               on eliciting from Mr. Vanes. The motion on the table is that if
               it’s information that was provided that was a part of his
               prosecutorial work in the 1980s, that it’s subject to privilege.


               [HILL’S COUNSEL]:            [ ] First of all, [ ] [Vanes] was a deputy
               prosecuting attorney. Well, in – certainly in 1980, it predates
               that, and was involved in the prosecution of an unrelated matter
               [ ] for the next several years and was aware of the investigation
               regarding this case. [ ][Vanes] was involved with Michael Solan
               in the investigation and was involved in the prosecution of Mr.
               Hill. . . . Michael Solan . . . never disclosed the existence of
               [Hill’s] confession of March 9th, 1981, or any other time to Mr.
               Vanes.


               Second part was generated yesterday during questioning by Mr.
               Dillon of Captain Solan, I believe late in the direct examination
               of Captain Solan, possibly the redirect, but I think it was the
               direct wherein Mr. Dillon elicited testimony from Captain Solan
               [that], his delay in seeking charges against Mr. Hill,
               notwithstanding the March 9th, 1981, purported confession was
               because of his desire to develop additional evidence on the other
               two suspects. . . . I intend to establish that Mr. Vanes based on
               training and experience is an expert in criminal law and in
               criminal procedure. . . .


                                                *****


               [THE STATE]:        Yes. So [defense counsel] said [ ] Vanes
               worked on another case of Mr. Hill’s with Mr. Solan. That’s not
               relevant. Past prosecutions of Mr. Hill, they are not relevant in

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 22 of 34
               these proceedings. So that – that portion is not relevant, and as
               far as that Mr. Solan or anybody at the Hammond Police
               Department [ ] never told Thomas Vanes about this confession,
               that fact is not in dispute. The prosecution has presented that
               through several witnesses, that it’s our – we never gave anything
               to the prosecutor. [ ] So for that purpose, the State will ask that
               his subpoena be quashed on that section. And as far as the other
               section, [ ] the decision to prosecute [ ] rests solely with the State
               of Indiana. The [ ] crimes [ ] that we choose to prosecute [are] up
               to [ ] the discretion of the State.


       Tr. Vol. VII pp. 98-100. The trial court granted the State’s motion to quash and

       did not allow Vanes to testify.


[40]   Hill’s attorney then sought to make an offer of proof regarding Vanes’

       testimony, which the trial court denied, stating:


               Your request is denied. I will not allow you to make the offer of
               proof through Vanes because he has nothing to offer. [ ] For
               him to make the offer of proof to simply indicate yes, I did not
               receive anything from Solan adds nothing to our discussion as I
               see it and to put him on the stand to indicate what the role of a
               prosecutor was in the 1980s, and we do believe he was a
               prosecutor in 1980, and I speculate, without actually knowing,
               that he was one of the prosecutors involved in this unrelated case
               that we’ve been speaking of for quite some time. [ ]


       Id. at 102-03. Hill’s attorney again requested to make an offer of proof with

       Vanes’ testimony during a break, which the trial court again denied, noting that

       “[w]hat you’ve proffered through [Hill’s other attorney] is your offer of proof.

       You don’t need live testimony to preserve the record. You’ve done so by these

       two points that you want to present through Vanes.” Id. at 104.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 23 of 34
[41]   Hill argues that both the exclusion of the evidence and the denial of the specific

       method of the offer of proof were error. The State responds that the evidence

       and offer of proof were properly excluded because: (1) the contact Solan and

       Vanes had related to a different criminal matter; (2) there was no evidence

       Vanes had any expertise regarding prosecutorial charging decisions due to the

       fact he had not prosecuted in many years; and (3) the testimony would include

       “confidential work product” of the prosecutor’s office. Appellee’s Br. p. 26.

       Regardless, the State argues that Hill had a sufficient offer of proof based on the

       thorough statements by Hill’s attorney.


[42]   We agree with the State on both counts. Regarding the offer of proof, the trial

       court did allow Hill to make an offer of proof for the record. Hill’s attorney

       went into significant detail regarding what Vanes would have said during his

       testimony. The trial court was not required to hear Vanes’ live testimony to re-

       state what Hill’s attorney stated. See Harman, 4 N.E.3d at 217 (“Based on the

       record before us, we conclude that the trial court did not deny Harman the

       opportunity to make an offer to prove. Indeed, the trial court gave Harman the

       chance to explain the substance, relevance, and admissibility of the proposed

       evidence.”); see also Heckard v. State, 118 N.E.3d 823, 829 (Ind. Ct. App. 2019)

       (“To be clear, the trial court did not deny Heckard the opportunity to present an

       offer of proof; the trial court denied defense counsel’s way of presenting the

       offer of proof. . . . Enough evidence was presented for our current review,

       which is the purpose of the offer of proof.”), trans denied.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 24 of 34
[43]   We also cannot say the trial court abused its discretion in excluding Vanes’

       testimony. In the best case scenario, Vanes’ testimony would have been that

       Vanes, who was familiar with Hill due to other unrelated investigations, and

       knew that the murder investigation was underway, did not know (1) why it took

       so long for the State to file charges against Hill; and (2) was not aware that Hill

       confessed to driving the vehicle involved in the robbery. The trial court did not

       abuse its discretion in excluding this speculative and vague testimony.


[44]   The trial court did not abuse its discretion in denying the admission of Vanes’

       testimony, and the trial court also did not err by denying Hill the opportunity to

       make an offer of proof with Vanes’ live testimony.


                                         III.    Motion for Mistrial

[45]   Hill next argues that a statement by a State’s witness warranted a mistrial. “We

       review a trial court’s denial of a mistrial for [an] abuse of discretion because the

       trial court is in ‘the best position to gauge the surrounding circumstances of an

       event and its impact on the jury.’” Pittman v. State, 885 N.E.2d 1246, 1255 (Ind.

       2008) (quoting McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004), cert. denied,

       546 U.S. 831, 126 S. Ct. 53 (2005)). “A mistrial is appropriate only when the

       questioned conduct is ‘so prejudicial and inflammatory that [the defendant] was

       placed in a position of grave peril to which he should not have been subjected.’”

       Pittman, 885 N.E.2d at 1255 (quoting Mickens v. State, 742 N.E.2d 927, 929

       (Ind. 2001)). The gravity of the peril is measured by the conduct’s probable

       persuasive effect on the jury. Id. “The remedy of mistrial is ‘extreme,’ strong

       medicine that should be prescribed only when ‘no other action can be expected
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 25 of 34
       to remedy the situation’ at the trial level.” Lucio v. State, 907 N.E.2d 1008,

       1010-11 (Ind. 2009) (citations omitted).


[46]   Hill identifies the offending statement, made by Miller, as follows: “Sergeant

       Rosenberg had looked under the passenger seat and spotted a piece of paper.

       When he pulled it out, he had noticed that it was a note from a person that

       apparently had been kidnapped and left a note in the back seat.” Tr. Vol. IV p.

       140. 11 Hill maintains that the grave peril resulted from the “great conflict in the

       evidence” and Miller’s “highly prejudicial” testimony. 12 Appellant’s Br. p. 29.


[47]   There is no dispute that the reference to the kidnapping violated the motion in

       limine. The question, however, is whether violation of that motion in limine

       warranted a mistrial. The trial court properly considered whether the mistrial—

       as an extreme option—was warranted versus a limiting instruction. The trial

       court concluded that “the error can be cured with a limiting instruction. . . .”

       Tr. Vol. IV p. 139. The trial court then instructed the jury:


                [T]he last comment by the witness was something that I’m going
                to ask you to strike and ignore and it should not come into any
                consideration. It’s not part of this case as it’s a matter that is



       11
          Although the record does not include the evidence regarding a kidnapping charge, it appears that the
       statement stems from Hill giving T.W. a ride on the evening of the murder and driving with T.W. and her
       friend in the vehicle longer than T.W. intended. A kidnapping charge was not presented to the jury.
       12
          Hill argues that the testimony was especially prejudicial in combination with T.W.’s testimony that: (1) she
       had the paper in her pocket because she did not have any other identification; (2) she wanted someone to be
       able to identify her body “if something were to happen” to her; and (3) she “made a conscious decision to put
       [the envelope] there[.]” Tr. Vol. V pp. 95, 97. Hill, however, did not move for a mistrial after T.W.’s
       testimony; therefore, we will only consider whether a mistrial was warranted at the time of Miller’s
       statements—when Hill asked for the mistrial.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                  Page 26 of 34
               immaterial to what we’re dealing with here. You are to not
               consider the last comment by the witness as you move forward
               with your discussions about this case.”


       Id. at 142.


[48]   Hill has failed to demonstrate any prejudice other than his speculative and self-

       serving statement that the testimony likely impacted the jury’s impression of

       Hill. See cf Mote v. State, 775 N.E.2d 687, 691 (Ind. Ct. App. 2002) (finding

       defendant demonstrated prejudice that likely impacted the jury’s impression of

       his guilt or innocence from references to his past arrests and convictions that

       violated the motion in limine); see also Underwood v. State, 644 N.E.2d 108, 111

       (Ind. 1994) (finding defendant failed to demonstrate prejudice that likely

       impacted the jury’s impression of defendant’s guilt or innocence from testimony

       that violated the motion in limine where the trial court admonished the jury

       and there was “overwhelming evidence” of defendant’s guilt). There was

       substantial evidence outside of this testimony to convict Hill. Moreover, Hill

       did not later move for a mistrial during T.W.’s statement regarding the note.

       We presume the jury followed the limiting instruction. See Harris v. State, 824

       N.E.2d 432, 440 (Ind. Ct. App. 2005) (holding “[w]e presume that the jury

       follows the trial court’s instructions”), trans. denied. The trial court did not

       abuse its discretion by denying Hill’s motion for mistrial.


                                          IV.     Opinion Evidence

[49]   Hill argues that a statement by one of the police officers constituted improper

       opinion testimony under Article 1, Section 19 of the Indiana Constitution and

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 27 of 34
       Indiana Rules of Evidence 701 and 704. Specifically, Hill alleges that the

       following statement is improper opinion testimony: “[Officers and the State]

       had substantial evidence on James Hill, a lot of evidence[].” Tr. Vol. VI p. 148.


[50]   The State contends that Hill waived the issue by his failure to object. Hill

       objected to the initial question asked by the prosecuting attorney. During

       Solan’s testimony, the following colloquy occurred:


               [THE STATE]: In your opinion, did you ever get in the 1980s
               the corroborating evidence that you wanted against all three of
               your suspects?


               [HILL’S COUNSEL]: Objection. This opinion is irrelevant.
               The State has taken pains to point out that they and they alone –
               and by the State, I mean the prosecution decides to file charges.
               The detective’s opinion is not relevant to these proceedings, and I
               add, I do not believe that the detective is competent to give such
               an opinion.


               [THE STATE]: Your Honor, I just elicited testimony from the
               detective, Captain Solan stated that in this case while it was the
               prosecutor’s sole discretion to file or not file charges, that it was
               his decision whether or not to take the file to the prosecutor’s
               office.


               THE COURT: Overruled. Overruled.


               [HILL’S COUNSEL]: Thank you.


               [THE STATE]: So based off of your opinion as the supervising
               detective, did you ever get the evidence that you believed you


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 28 of 34
               needed to corroborate all three suspects so that you would bring
               it down to the prosecutor’s office?


               A: We did not have enough evidence on Larry Mayes. We did
               not have enough evidence at the time on Pierre Catlett. We had
               substantial evidence on James Hill, a lot of evidence.


       Tr. Vol. VI pp. 147-48. We will address Hill’s argument on the merits. As

       noted above, we review the admission of evidence for an abuse of discretion.


[51]   In Williams, our Supreme Court stated:


               Our evidence rules allow witnesses to testify to their opinion of
               the facts and circumstances if the opinion is ‘(a) rationally based
               on the witness’s perception; and (b) helpful to a clear
               understanding of the witness’s testimony or to a determination of
               a fact in issue.’ Ind. Evidence Rule 701. Such an opinion is
               admissible even if ‘it embraces an ultimate issue.’ Evid. R.
               704(a).


               But Evidence Rule 704(b) draws a bright-line exception:
               “witnesses may not testify to opinions concerning . . . guilt[ [ or
               innocence in a criminal case.’ Ind. Evidence Rule 704(b). The
               jury, not the witness, is responsible for deciding the ultimate
               issues in a trial, and opinion testimony concerning guilt ‘invades
               the province of the jury in determining what weight to place on a
               witness’ testimony.’ . . . In other words, such testimony usurps
               the jury’s ‘right to determine the law and the facts,’ Ind. Const.
               art. 1 § 19, and is therefore inadmissible.


               Taken together, those principles establish that even in criminal
               cases, opinion testimony may include ‘evidence that leads to an
               [incriminating] inference, even if no witness could state [an]
               opinion with respect to that inference.’ . . . But an opinion must

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 29 of 34
                  stop short of the question of guilt—because under Rule 704(b)
                  and our constitution, that is one ‘ultimate issue’ that the jury
                  alone must resolve.


       Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015) (internal citations omitted).


[52]   As the State correctly notes, when reading the transcript as a whole, it appears

       that Solan’s opinion “was not an opinion on [ ] [Hill’s] guilt,” but rather, the

       impediments to filing charges in 1980. Appellee’s Br. p. 30. Moreover, Solan’s

       statement that there was “substantial evidence” is not a statement regarding

       every element of the offense and “does not embrace the ultimate question of

       guilt, because the State still must prove the other elements in order for the jury

       to find guilt.” Id. at 582. Here, the State had to establish the requisite elements

       of the charged offenses to prove Hill was guilty.


[53]   Solan was not able to give an opinion as to the guilt or innocence of Hill or the

       others. The questions asked of Solan focused on the evidence available in the

       “1980s.” Evidence required for prosecution is quite different from opinion

       evidence regarding guilt or innocence. The trial court did not abuse its

       discretion. 13


                                               V.        Cumulative Errors

[54]   Hill argues that, when combined, the purported errors above warrant reversal.




       13
            Based on this conclusion, we do not reach the State’s alternative theory of invited error.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                   Page 30 of 34
               [Our Supreme Court] has been willing to assume ‘for the sake of
               argument, that under some circumstances the cumulative effect
               of trial errors may warrant reversal even if each might be deemed
               harmless in isolation,’ but not where it has been ‘clear in light of
               the evidence of guilt that no prejudice resulted from any of the
               erroneous rulings, individually or cumulatively.’


       Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting Hubbell v. State, 754

       N.E.2d 884, 895 (Ind. 2011)). Here, we do not find error, much less errors that

       resulted in prejudice. Accordingly, reversal is not warranted.


                                               VI.     Sentencing

[55]   Hill next argues that the trial court abused its discretion in sentencing him. Our

       Supreme Court has held that we must apply the sentencing scheme in effect at

       the time of the defendant’s offense. See Robertson v. State, 871 N.E.2d 280, 286

       (Ind. 2007) (“Although Robertson was sentenced after the amendments to

       Indiana’s sentencing scheme, his offense occurred before the amendments were

       effective so the pre-Blakely sentencing scheme applies to Robertson’s

       sentence.”).


[56]   At the time of the offense, the presumptive sentencing scheme was in effect, not

       the current advisory sentencing scheme. Indiana’s presumptive sentencing

       system, however, was found to “run[] afoul of the Sixth Amendment” pursuant

       to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), “because it

       mandates both a fixed term and permits judicial discretion in finding

       aggravating or mitigating circumstances to deviate from the fixed term.” Smylie

       v. State, 823 N.E.2d 679, 685 (Ind. 2005). Under Blakely:

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 31 of 34
                a trial court may not enhance a sentence based on additional
                facts, unless those facts are either (1) a prior conviction; (2) facts
                found by a jury beyond a reasonable doubt; (3) facts admitted by
                the defendant; or (4) facts found by the sentencing judge after the
                defendant has waived Apprendi [v. New Jersey, 530 U.S. 466, 490
                (2000)] rights and consented to judicial fact[-]finding.


       Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). Hill argues that the

       aggravators found by the trial court violate his rights under Blakely.


[57]   The trial court here found two aggravators:


                The character of the defendant at the time of the offense was
                dishonest and manipulative.


                The Court finds that given the nature of the offense and the
                character of the defendant, the sentence imposed is appropriate
                and proper. Any reduction or lessor sentence will depreciate the
                seriousness of [the] crime committed.


       Appellant’s App. Vol. III p. 165. 14 In its order on the motion to correct error,

       the trial court clarified that the character aggravator “derived from the




       14
         Hill also argues that the trial court improperly considered the effect of the crime on the victim’s family.
       We agree with the State that the trial court did not consider this factor as an aggravating factor. In its oral
       sentencing statement, the trial court merely remarked:
              Whether [Officer Pucalik is] a police officer or not, an individual died. An individual lost his
              life. An individual that was, from what I could tell, married at the time and certainly had a
              child as well that had to grow up without a father. And you, as a jury would find, were
              involved in all of this.
       Sent Tr. p. 142. This statement, along with the other facts the trial court focused on, goes to the “totality of
       the nature and circumstances.” Id. at 143. There is no indication that the trial court treated the effect of the
       crime on Officer Pucalik’s family as an additional aggravating factor.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                     Page 32 of 34
       underlying facts of the case as presented to the jury.” Id. at 180-81. The State

       argues that the character aggravator was based on other criminal incidents,

       which were not presented to the jury but were used to help identify Hill, and the

       fact that “the jury necessarily found that [Hill] possessed a stolen vehicle when

       he committed the present crime.” Appellee’s Br. pp. 36-37.


[58]   The jury did not specifically find beyond a reasonable doubt that Hill possessed

       a stolen vehicle or participated in other uncharged crimes, and we conclude that

       this aggravator is similar to the use of a nature and circumstances aggravator.

       Our Supreme Court held that, “except when they are supported by facts

       otherwise properly found, and meant as concise descriptions of the moral or

       penal weight of those facts in assessing criminal culpability, aggravators such as

       ‘the nature and circumstances of the crime’ run afoul of the Sixth

       Amendment.” Mitchell v. State, 844 N.E.2d 88, 91 (Ind. 2006); Sowders v. State,

       829 N.E.2d 18, 19 (Ind. 2005) (holding that the following aggravators were

       improper under Blakely: “1) a substantial level of planning and aforethought; 2)

       failure to accept responsibility; 3) a lack of remorse; and 4) certain

       circumstances of the crimes”). Accordingly, we conclude that use of the

       character aggravator violated Blakely.


[59]   The other aggravator—that any reduction or lessor sentence would depreciate

       the seriousness of the crime committed—similarly violated Blakely. In Trusley v.

       State, 829 N.E.2d 923, 927 (Ind. 2005), our Supreme Court held:


               There were three other aggravating circumstances found by the
               trial court: that Trusley was in need of incarceration; that the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019   Page 33 of 34
                  imposition of anything other than an enhanced sentence would depreciate
                  the seriousness of the crime; and the nature and circumstances of the
                  crime. None of these can be supported by facts found according
                  to the procedural dictates mandated by Blakely.


       (emphasis added). As in Trusley, neither of the aggravators found here by the

       trial court conformed to the procedural dictates mandated by Blakely.

       Accordingly, we remand for resentencing in accordance with Blakely. 15


                                                       Conclusion

[60]   Admission of Williams’ deposition did not violate Hill’s constitutional rights.

       Nor did the trial court abuse its discretion: (1) in excluding Vanes’ testimony

       and Hill’s offer of proof; (2) in denying Hill’s motion for mistrial; or (3) by

       allowing Solan’s testimony. Hill’s sentencing, however, did not comply with

       Blakely. We affirm Hill’s conviction, but we reverse his sentence and remand

       for resentencing.


[61]   Affirmed in part, reversed in part, and remanded.


       Brown, J., and Altice, J., concur.




       15
            Because we remand for resentencing, we do not address Hill’s argument that his sentence is inappropriate.


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019                  Page 34 of 34
