 Pursuant to Ind.Appellate Rule 65(D),
 this Memorandum Decision shall not be
 regarded as precedent or cited before any                                    Sep 29 2014, 10:21 am
 court except for the purpose of
 establishing the defense of res judicata,
 collateral estoppel, or the law of the case.

ATTORNEY FOR APPELLANT:                             ATTORNEYS FOR APPELLEE:

SCOTT L. BARNHART                                   GREGORY F. ZOELLER
Keffer Barnhart LLP                                 Attorney General of Indiana
Indianapolis, Indiana

                                                    ERIC P. BABBS
                                                    Deputy Attorney General
                                                    Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

COREY HAMERSLEY                                     )
                                                    )
       Appellant-Defendant,                         )
                                                    )
               vs.                                  )        No. 53A05-1309-CR-477
                                                    )
STATE OF INDIANA,                                   )
                                                    )
       Appellee-Plaintiff.                          )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                           The Honorable Kenneth Todd, Judge
                              Cause No. 53C03-1205-FA-458


                                        September 29, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

FRIEDLANDER, Judge
        Following a jury trial, Corey Hamersley was convicted of Attempted Murder,1 a

class A felony; Criminal Recklessness as a class C felony;2 Criminal Recklessness as a

class D felony;3 and Resisting Law enforcement as a class A misdemeanor.4 Hamersley

was sentenced to an aggregate sentence of thirty-four years with six years suspended and

the balance executed. Hamersley presents three issues for our review:

        1.      Did the trial court abuse its discretion in denying Hamersley’s
                motion to continue the jury trial?

        2.      Did the trial court abuse its discretion in admitting into evidence
                Hamersley’s statement to police?

        3.      Is the sentence imposed inappropriate?

1
  Ind. Code Ann. § 35-41-5-1 (West, Westlaw 2012) (attempt); Ind. Code Ann. § 35-42-1-1 (West,
Westlaw current through 2012 Second Regular Session) (murder). The version of the attempt statute in
effect at the time this offense was committed classified attempted murder as a class A felony. This statute
has since been revised and in its current form reclassifies the offense as a Level 1 felony. See I.C. § 35-
41-5-1 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and
Second Regular Technical Session of the 118th General Assembly). The new classification, however,
applies only to offenses committed on or after July 1, 2014. See id. Because this offense was committed
on May 11, 2012, it retains the former classification.

2
  I.C. § 35-42-2-2(c)(3)(A) (West, Westlaw 2012) (shooting a firearm into an inhabited dwelling). The
version of the criminal recklessness statute in effect at the time of this offense was committed classified
this offense as a class C felony. This statute has since been revised and in its current form reclassifies the
offense as a Level 5 felony. See I.C. § 35-42-2-2(a),(b)(2)(A) (West, Westlaw current with all 2014
Public Laws of the 2014 Second Regular Session and Second Regular Technical Session of the 118th
General Assembly). The new classification, however, applies only to offenses committed on or after July
1, 2014. See id. Because this offense was committed on May 11, 2012, it retains the former
classification.
3
   I.C. § 35-42-2-2(b)(1), (c)(2)(A) (firing shots in an occupied neighborhood). The version of the
criminal recklessness statute in effect at the time of this offense was committed classified this offense as a
class D felony. This statute has since been revised and in its current form reclassifies the offense as a
Level 6 felony. See I.C. § 35-42-2-2(a),(b)(1)(A) (West, Westlaw current with all 2014 Public Laws of
the 2014 Second Regular Session and Second Regular Technical Session of the 118th General Assembly).
The new classification, however, applies only to offenses committed on or after July 1, 2014. See id.
Because this offense was committed on May 11, 2012, it retains the former classification.
4
  Ind. Code Ann. § 35-44.1-3-1 (West, Westlaw current with all 2014 Public Laws of the 2014 Second
Regular Session and Second Regular Technical Session of the 118th General Assembly). This statute has
been revised, but in its current form, the offense for which Hamersley was convicted remains unchanged.
We therefore have cited to the current version of the statute.


                                                      2
       We affirm.

       In May 2012, Hamersley was a twenty-one-year-old student at Indiana University

in Bloomington. Hamersley lived in the Terra Trace apartment complex on the south

side of 15th Street near the intersection of 15th and Lincoln.       Margaret and David

Greischar lived in a one-story, yellow house on the north side of 15th Street, across from

Terra Trace.

       On the morning of May 11, 2012, at approximately 6:30 a.m., Margaret awoke to

the sound of gunfire, which she initially believed to be fireworks. Margaret called the

police to report the disturbance. Margaret then stepped out onto her front porch, which

faced Terra Trace, and could hear a male yelling in a “very angry” voice. Transcript at

344. In the same timeframe, Jason Heap, who lived at Terra Trace, heard a popping noise

and looked outside his apartment window. Heap saw Hamersley, who was naked but

wearing a hat on his head, crawling up a hill on the other side of the street. Heap did not

see any other persons with Hamersley. Heap also observed that Hamersley had a gun in

his hand.

       Shortly thereafter, Margaret’s husband, David, went outside the house and was

confronted by a naked Hamersley. Hamersley asked David, “which window would you

like?”, implying that he was going to shoot out the windows to the house. Id. at 355.

David rushed back into the house and told Margaret to call 911 because “he’s got a gun.”

Id. at 346.




                                            3
       While Margaret was on the phone, Hamersley appeared at the back door to the

house and tried to push his way in. Margaret and David braced themselves against the

door and managed to secure it. Margaret noted that Hamersley had “really wide eyes, he

looked very wild, and he was talking crazy,” saying things like, “where are my demons?”

Id. at 347. Margaret also noticed that Hamersley had a silver handgun. Margaret and

David sought safety by hunkering down behind a refrigerator on the other side of the

kitchen. Hamersley continued pounding on the door and trying to gain entry. The

pounding stopped and shortly thereafter, Hamersley began firing shots into the house.

One bullet passed within two feet of the Greischars and lodged in a kitchen wall. The

Greischars crawled into their living room and sought cover behind a heavy oak desk.

Hamersley finally moved away from the Greischars’ back door and started walking down

the alley.

       Another neighbor, Samantha Weigel, witnessed Hamersley firing shots at the

Greischars’ home. She overheard Hamersley saying, “come on guys we’ll fire again on

three,” after which Hamersley counted to three and fired more shots in rapid succession

at the Greischars’ door. Weigel did not see any other individuals with Hamersley.

Hamersley did not appear to Weigel to be staggering or stumbling around. Rather, she

explained that Hamersley took an “affirmative,” “purposeful” stance when he fired his

gun. Id. at 484.

       Officer Dana Runnebohm of the Bloomington Police Department responded to the

scene. Officer Runnebohm first encountered Hamersley near the Greischars’ home and

saw Hamersley raise his right arm and fire his gun into the air. Officer Runnebohm

                                          4
described Hamersley as being “deliberate in his actions.” Id. at 426. Officer Runnebohm

positioned herself behind a tree, pointed her service weapon at Hamersley, and yelled at

him several times, “police, drop your weapon.” Id. at 427. Hamersley took a “shooter’s

stance” with both hands on his gun and fired a shot in Officer Runnebohm’s direction.

Id. at 430. When Hamersley pulled the trigger, Officer Runnebohm heard Hamersley

say, “you will.”5 Id. at 434. Officer Runnebohm retreated to a garage area for better

protection. Hamersley then moved closer to the Greischars’ home and fired more shots at

the house. Officer Runnebohm then moved back to her position near the tree and again

ordered Hamersley to drop his weapon.             Hamersley took a few steps in Officer

Runnebohm’s direction and again, taking a shooter’s stance with both hands on his gun,

fired his weapon at Officer Runnebohm a second time.

       Additional officers arrived at the scene as Hamersley walked down the alley

toward Terra Trace. Hamersley did not comply with those officers’ commands to drop

his weapon, so those officers opened fire on Hamersley, shooting him twice, once in the

back of each leg. While on the ground, Hamersley thrashed his legs around and tried to

kick the officers who were trying to subdue him. Hamersley also stiffened his arms to

keep from being handcuffed. The officers managed to seize Hamersley’s weapon, which

was identified as a nine-millimeter Ruger P-89 semiautomatic pistol.

       A crime-scene investigation recovered seventeen nine-millimeter casings in the

area of 15th Street and Terra Trace. Additionally sixteen casings of that type were


5
  Officer Runnebohm could not hear what Hamersley ended this statement with or if he even spoke
additional words.


                                              5
recovered from behind the Greischars’ home. Seven of Hamersley’s bullets left holes in

the Greischars’ rear door and one bullet went through the doorknob. In total, six bullets

entered the Greischars’ home. One bullet lodged in a wall near the refrigerator, having

narrowly missed Margaret and David. Hamersley also fired shots at two cars parked in

the alleyway beside the Greischars’ home, both of which sustained bullet damage. All

thirty-three casings were analyzed and determined to have been fired from Hamersley’s

gun. Hamersley’s gun had a fifteen-round magazine, which meant that with one bullet in

the chamber, the gun could carry a total of sixteen rounds.

       Immediately after being taken into custody, Hamersley was transported to

Bloomington Hospital, arriving at 7:28 a.m.       Hamersley underwent surgery for his

gunshot wounds. After a brief time in recovery, Hamersley was taken to a private room

on the fourth floor short-stay unit. Nurse Mary Senior attended to him upon his arrival in

his room. Nurse Senior noted that Hamersley’s vital signs were normal, that he was alert

and cooperative and tracked her movements around the room. Hamersley answered

questions appropriately and knew his name, his date of birth, and was aware that he had

undergone surgery. Hamersley did not appear disoriented, confused, or scared, and in

fact, was able to clearly speak, explaining to Nurse Senior that he was a student at

Indiana University and that he thought he might be under arrest for murder. Hamersley

never complained of dizziness or abnormal sensations and he never referred to objects

that were not present.

       While being tended to by Nurse Senior, Hamersley initiated a conversation with

an officer who was waiting in the alcove of his hospital room. Specifically, Hamersley

                                             6
inquired about the officer’s weapon and then asked the officer where his (i.e.,

Hamersley’s) gun was located and indicated that he wanted it back. The officer noted

that Hamersley was oriented, that he was tracking the conversation, and that his mood

and reactions appeared normal.

      At 1:03 p.m., Detective Sarah Carnes of the Bloomington Police Department

conducted an audio recorded interview of Hamersley in his hospital room. The interview

lasted approximately an hour and twenty-three minutes.           Detective Carnes read

Hamersley his Miranda rights. Hamersley stated that he did not have any questions about

those rights and noted he “can” make the process quicker by “not” talking to Detective

Carnes. State’s Exhibit 185. Hamersley then proceeded to answer questions. Detective

Carnes transitioned the interview from general background questions to Hamersley’s

memory of the events of the previous night and earlier that morning. At all times during

the interview, Hamersley was oriented as to time and place, was “very cooperative” and

“polite,” and was able to track the conversation and respond appropriately to questions.

Transcript at 1019. Detective Carnes had no concerns that Hamersley was intoxicated at

the time she interviewed him.

      During his trial testimony, Hamersley admitted that he ingested a liquid form of

LSD, consumed alcohol, and smoked marijuana. Hamersley told Detective Carnes that

he had been to three bars, the names of which he recalled, between the hours of 7:00 p.m.

and 3:00 a.m. After the bars closed, Hamersley walked home. Although Hamersley did

not have a dog, he claimed that later that morning, he took his dog for a walk. He further

explained to her that while out walking his dog in the nude, he was shot by police once in

                                            7
each calf with their “bean bag guns”. Id. Hamersley was “pretty sure [he] had a gun in

his hand” and that this is why the police shot him. Id. Hamersley also talked about the

presence of helicopters that morning and a swarm of police officers. Hamersley believed

that at some point during the previous night, he had been picked up by undercover

detectives conducting a drug-trafficking investigation. He later stated that the individuals

he knew as Ron and Sprout had acted as undercover police and had driven him around

after the bars closed.

       Detective Carnes then revisited the subject of where and how Hamersley had fired

his gun that morning. Hamersley first reiterated that he had only fired his gun into the

air. He also stated that a police officer had approached him and asked to see his gun and

then the officer handed his gun back to him. Hamersley ultimately admitted to Detective

Carnes that he may have fired his gun at a police officer, that he shot out car windows

because “glass is way more fun to break than anything else,” that he shot at the

Greischars’ back door in an attempt to break in, which gave him an “adrenaline rush.”

Exhibit 185. Hamersley told Detective Carnes that he was fully aware of what was going

on and he was in his right mind when he did these things.

       Detective Carnes also questioned Hamersley about his intent in shooting at Officer

Runnebohm. Hamersley acknowledged that he shot at the officer when she told him to

drop his weapon. He first claimed that he intended to strike the officer’s “flack jacket”

without hurting the officer. Hamersley then admitted that he “aimed center mass” when

he shot at Officer Runnebohm. Id. Hamersley volunteered, “I was like dude how cool

would it be to say I shot a cop – that was like literally the thought that went through my

                                             8
head before I pulled the trigger.” Id. He concluded by saying, “[n]ot many people can

say they shot a cop and got away with it.” Id.

       On May 16, 2012, the State charged Hamersley with attempted murder, a class A

felony; criminal recklessness as a class C felony (shooting a firearm into an inhabited

dwelling); criminal recklessness as a class D felony (firing shots in an occupied

neighborhood); two counts of pointing a firearm, class D felonies; and resisting law

enforcement as a class A misdemeanor.6

       On October 30, 2012, Hamersley filed a motion to suppress challenging the

admissibility of his statement to police while he was in the hospital.                The basis of

Hamersley’s argument was that he was interrogated while he “was in a state of psychosis

caused by the LSD ingestion that had not resolved.” Appellant’s Appendix at 101. The

trial court held a hearing on the motion to suppress on March 12 and April 5, 2013.

During the suppression hearing, Hamersley admitted that he had used LSD “upwards of

fifty times over . . . the two years” preceding the instant offense. Transcript at 226.

Hamersley claimed that on May 10, 2012, he voluntarily ingested LSD in liquid form

when his friend, Sprout, provided it to him. Hamersley claims that he fell asleep at a

friend’s house and that he has no memory of the events that followed and that he did not

remember making a statement to Detective Carnes. On May 8, 2013, the trial court

denied Hamersley’s motion to suppress his statement taken on May 11, 2012.




6
 The State also charged Hamersley with class D felony possession of a controlled substance and class A
misdemeanor possession of marijuana, but the State dismissed these charges prior to trial.


                                                  9
       On May 15, 2013, Hamersley filed a motion to continue the jury trial scheduled

for May 20, 2013, so that he could secure testimony of an expert witness, who Hamersley

claimed would testify about the intoxicating effects of LSD. After holding a hearing on

the motion, the trial court denied Hamersley’s motion for a continuance. Prior to the start

of the trial, Hamersley asked the court to reconsider his motion for continuance, and the

trial court again denied Hamersley’s motion to continue the jury trial.

       A jury trial was held from May 20 to May 29, 2013. At the conclusion of the

evidence, the jury found Hamersley guilty of all counts, save one count of pointing a

firearm. The guilty verdict on the remaining charge of pointing a firearm was merged

with the attempted murder conviction.

       The trial court held a sentencing hearing on August 30, 2013. The trial court

sentenced Hamersley to thirty years for attempted murder, with twenty-four years

executed and six years suspended; to four years for class C felony criminal recklessness,

to be served consecutively to the attempted murder sentence; to one and one-half years

for class D felony criminal recklessness, to be served consecutively to the attempted

murder sentence and concurrently to the C felony criminal recklessness sentence; and to

one year for resisting law enforcement, to be served concurrently with the attempted

murder sentence. Hamersley therefore received an aggregate sentence of thirty-four

years, with six years suspended and the balance executed. Hamersley now appeals.

                                             1.

       Hamersley argues that the trial court abused its discretion in denying his motion to

continue the jury trial so that he could secure the testimony of an expert witness to

                                            10
provide testimony regarding the effects of LSD.          Hamersley acknowledges that his

request for a continuance was non-statutory. Where a motion for continuance is filed on

non-statutory grounds, we review the trial court’s decision to grant or deny

the continuance for an abuse of discretion. Tharpe v. State, 955 N.E.2d 836 (Ind. Ct.

App. 2011), trans. denied. An abuse of discretion occurs when a decision is clearly

against the logic and effect of the facts and circumstances before the court or where the

record demonstrates prejudice to the defendant from a denial of the continuance. Id.

With this standard of review in mind, we also consider that:

        Every defendant has the fundamental right to present witnesses in his or her
        own defense. This right is in plain terms the right to present a defense, the
        right to present the defendant’s version of the facts as well as the
        prosecutor’s to the jury so it may decide where the truth lies. At the same
        time, while the right to present witnesses is of the utmost importance, it is
        not absolute. In the exercise of this right, the accused, as is required of the
        State, must comply with established rules of procedure and evidence
        designed to assure both fairness and reliability in the ascertainment of guilt
        and innocence.

Tolliver v. State, 922 N.E.2d 1272, 1282 (Ind. Ct. App. 2010) (citations and quotations

omitted), trans. denied.

        We initially note that months before trial, Hamersley informed the court of his

intentions to call an expert witness who would discuss the effects of LSD on the human

mind.    The first expert Hamersley sought retired while the case was still pending.

Hamersley sought a second expert witnesses, but, despite diligent efforts, was unable to

make contact with him.        Five days before the jury trial was scheduled to begin,

Hamersley filed his motion to continue to allow him to present the testimony of Dr.

Jonathan Lipman, Ph.D., a forensic consultant and expert witness in neuropharmacology,

                                              11
neurotoxicology, and idiosyncratic effects of drugs and their interactions on human

behavior. Hamersley’s motion to continue was based on his desire to secure testimony

from Dr. Lipman about “the effects of LSD on the human mind.” Appellant’s Appendix

at 234.

          In a three-page order denying Hamersley’s motion to continue, the court stated,

“the question of the materiality and admissibility of the expert testimony sought to be

obtained is central to the question of whether the trial should be continued to obtain it.”

Id. at 256. The court continued:

          Despite the passage of more than a year from the filing of the charges and
          the additional time granted to [Hamersley] to make a demonstration to the
          contrary, there is nothing before the Court that evades the principle . . .that
          ‘temporary mental incapacity produced by voluntary intoxication is not an
          excuse for a crime.’ . . . Or, to state it differently, there is nothing before the
          Court that would allow it to conclude that the testimony of a
          neuropharmacologist describing ‘the effects of LSD (voluntarily ingested)
          on the human mind’ . . is, in and of itself, relevant and material to any issue
          which might conceivably provide a defense in this case.”

Id.   The trial court determined that Hamersley’s purported defense was simply an

argument about voluntary intoxication, which the court noted is not a defense to a crime

under Indiana law. See Berry v. State, 969 N.E.2d 35, 42 (Ind. 2012) (holding that

“temporary mental incapacity produced by voluntary intoxication is not an excuse for a

crime”). The trial court therefore concluded that because the sought-after testimony was

not relevant or material to a legal defense, there was no just reason to delay the trial.

          We agree with the trial court’s assessment. “[V]oluntary intoxication is not a

defense in a prosecution for an offense and may not be taken into consideration in

determining the existence of a mental state that is an element of the offense. See Orta v.

                                                  12
State, 940 N.E.2d 370, 378 (Ind. Ct. App. 2011), trans. denied; see also Ind. Code Ann. §

35-41-2-5 (West, Westlaw current with all 2014 Public Laws of the 2014 Second Regular

Session and Second Regular Technical Session of the 118th General Assembly). The

Indiana Supreme Court has held that I.C. § 35-41-2-5 eliminates the requirement that a

voluntarily intoxicated defendant have acted “knowingly” or “intentionally” as to those

crimes that include those elements. Sanchez v. State, 749 N.E.2d 509, 517 (Ind. 2001).

Therefore, voluntary intoxication is sufficient to place the voluntarily intoxicated

offender at risk for the consequences of his actions, “even if it is claimed that the capacity

has been obliterated to achieve the otherwise requisite mental state for a specific crime.”

Id. In other words, evidence of voluntary intoxication does not negate a defendant’s

mens rea, but rather satisfies it. Sanchez v. State, 749 N.E.2d 509.

       Hamersley explained to the court during the hearing on his motion to continue that

on the morning of the incident, he was “in a psychotic state due to an ingestion of LSD.”

Transcript at 251. In his motion to continue, Hamersley explained the importance of Dr.

Lipman’s testimony, asserting that the jury would need “an understanding of the effects

of LSD as it may preclude any possibility of conviction on the charge of attempted

murder based upon an understanding that a person who is laboring under psychosis

cannot form the requisite specific intent to commit the crime of attempted murder.”

Appellant’s Appendix at 234.




                                             13
        As noted, Hamersley does not deny that he voluntarily7 ingested LSD.

Hamersley’s conduct thereafter was a product of his voluntary intoxication. The trial

court was correct in concluding that Dr. Lipman’s testimony about the effect of LSD on

the human mind related to his voluntary intoxication, which, as noted, is not a legal

defense in Indiana. Because such evidence was not relevant to a legal defense, it would

not have been admissible. Therefore, we conclude that the trial court did not abuse its

discretion in denying Hamersley’s motion to continue so he could secure such testimony.

        To the extent Hamersley frames his argument as a challenge to the effect of the

denial of his motion to continue, i.e., to exclude Dr. Lipman as a witness in support of his

defense and in support of his argument that his statement to police was involuntary, such

argument fails because Hamersley failed to make an offer to prove at trial. See Harman

v. State, 4 N.E.3d 209 (Ind. Ct. App. 2014), trans. denied. To reverse a trial court’s

decision to exclude evidence, there must have been error by the court that affected the

defendant’s substantial rights and the defendant must have made an offer of proof or the


7
  An involuntary intoxication defense is not supported by the facts. An involuntary intoxication defense
disputes the existence of intent. Ellis v. State, 736 N.E.2d 731 (Ind. 2000). I.C. § 35-41-3-5 (West,
Westlaw current with all 2014 Public Laws of the 2014 Second Regular Session and Second Regular
Technical Session of the 118th General Assembly) provides: “It is a defense that the person who engaged
in the prohibited conduct did so while he was intoxicated, only if the intoxication resulted from the
introduction of a substance into his body: (1) without his consent; or (2) when he did not know that the
substance might cause intoxication.” As noted above, Hamersley admitted that he voluntarily ingested
LSD. In fact, Hamersley admitted that he had used LSD “upwards of fifty times over the [preceding] two
years.” Transcript at 226. Hamersley described his prior experiences with LSD, but claims that he did
not know it could cause intoxication. Hamersley’s statements are self-serving and do not establish
involuntary intoxication.
Further, to the extent that Hamersley argues that his intoxication rose to the level of psychosis, we note
that “temporary mental incapacity, when induced by voluntary intoxication, normally furnishes no legal
excuse, or defense to, a crime.” Jackson v. State, 273 Ind. 49, 402 N.E.2d 947, 949 (1980) (cited in Berry
v. State, 969 N.E.2d at 38). Thus, any evidence that Hamersley’s voluntary ingestion of LSD may have
resulted in a psychosis would not have supported an involuntary intoxication defense.


                                                   14
evidence must have been clear from the context. Stroud v. State, 809 N.E.2d 274 (Ind.

2004). An offer to prove consists of three parts: “(1) the substance of the evidence, (2) an

explanation of its relevance, and (3) the proposed grounds for its admissibility.” Nelson

v. State, 792 N.E.2d 588, 594 (Ind. Ct. App. 2003) (citing Roach v. State, 695 N.E.2d

934, 939 (Ind. 1998), reh’g granted on other grounds), trans. denied. “[T]he purpose of

an offer to prove is ‘to preserve for appeal the trial court’s allegedly erroneous exclusion

of   evidence.’”    Arhelger   v.   State, 714   N.E.2d    659,   664      (Ind.   Ct.   App.

1999) (quoting Bradford v. State, 675 N.E.2d 296, 302 (Ind. 1996), reh’g denied).

       Hamersley only generally stated in his motion to continue that Dr. Lipman’s

testimony would cover “the effects of LSD on a human mind.” Appellant’s Appendix at

234. During the hearing on the motion to continue, Hamersley did not further explain

what those effects were or how they were relevant to the present case. Hamersley did not

take any steps to make an offer to prove at trial. Hamersley has therefore waived his

argument to the extent that he frames it in exclusion-of-evidence terms.

       In any event, as we noted above, Dr. Lipman’s testimony would not have been

relevant to any legal defense. Hamersley admitted that he voluntarily ingested LSD.

Furthermore, we note that Hamersley was able to get his defense (valid or not) before the

jury when he testified he had no recollection of the events of the morning of May 11. In

further support of his defense, Hamersley also presented the testimony of Dr. Chad

Schultheis, who had interviewed Hamersley while he was at the hospital and determined

that Hamersley’s “incident” was “clearly related to substance use.” Transcript at 911.

Dr. Schultheis further explained that Hamersley suffered “an acute confusional state,” id.

                                            15
at 912, meaning that Hamersley was “incredibly intoxicated” such that the “excessive

amount of substances . . . cause[d] him to be not aware of everything going on around

him.” Id. at 916.

        Hamersley also asserts that Dr. Lipman’s testimony was also needed to address his

claim that “his statement to police was involuntary” and that “Hamersley was so

intoxicated that he was in a state of mania” when he gave his statement to police.

Appellant’s Brief at 12. Hamersley maintains that Dr. Lipman’s testimony would have

helped explain to the jury some of the nonsensical statements Hamersley made during his

statement to police.8

        Here, Hamersley’s claim that Dr. Lipman’s testimony would have undermined his

confession to police is pure speculation. Hamerlsey did not make an offer to prove, but

simply characterized Dr. Lipman’s testimony as being about the effects of LSD on the

human mind. Hamersley did not establish a nexus between Dr. Lipman’s testimony and

the voluntariness of his statement. Further, blood and urine tests taken in the hospital

revealed no LSD in Hamersley’s system. Several individuals, including a nurse and

Detective Carnes, who interacted with Hamersley at the hospital around the time he gave

his statement each noted that Hamersley was alert, not confused, oriented as to time and

place, cooperative, and polite. It is therefore unclear as to whether Dr. Lipman’s opinion

about the effects of LSD on the human mind could have been used to undermine

Hamersley’s statement to police.

8
  For example, Hamersley claimed that helicopters were around on the morning of the incident which
were in fact not present, that he was out walking a dog that he did not have, and that he had been picked
up the night before by two undercover officers investigating drug trafficking.


                                                   16
                                             2.

       Hamersley argues that the trial court abused its discretion in admitting the

audiotape of his statement to police into evidence. Specifically, Hamersley argues that

his statement to police was not voluntary because he made the statement while suffering

from a psychosis brought about by his ingestion of LSD.

       Our standard of review is well settled. The admission of evidence is within the

sound discretion of the trial court, whose decision thereon will not be reversed absent a

showing of manifest abuse of discretion resulting in the denial of a fair trial. Johnson v.

State, 831 N.E.2d 163 (Ind. Ct. App. 2005). A decision is an abuse of discretion if it is

clearly against the logic and effect of the facts and circumstances before the court. Id.

We consider the evidence in favor of the trial court’s ruling and any unrefuted evidence

in the defendant’s favor. Id. We will take into account the foundational evidence from

the trial as well as the evidence from the motion to suppress hearing which is not in direct

conflict with the trial testimony. Kelley v. State, 825 N.E.2d 420.

       The burden is upon the State to prove beyond a reasonable doubt that the

defendant voluntarily and intelligently waived his Miranda rights and that his statement

was voluntarily given. Ringo v. State, 736 N.E.2d 1209 (Ind. 2000). “A waiver of

one’s Miranda rights occurs when the defendant, after being advised of those rights and

acknowledging that he understands them, proceeds to make a statement without taking

advantage of those rights.” Ringo v. State, 736 N.E.2d at 1211-12. Thus, an express

written or oral waiver is not required to establish that a defendant waived

his Miranda rights. Horan v. State, 682 N.E.2d 502 (Ind. 1997); Cook v. State, 544

                                            17
N.E.2d 1359 (Ind. 1989). In deciding whether Miranda rights were voluntarily waived,

we consider the totality of the circumstances to ensure that the waiver was not induced by

violence, threats, or other improper influences that overcame the defendant’s free will.

Ringo v. State, 736 N.E.2d 1209.

       Here, there is no evidence of police coercion. In fact, Detective Carnes did not use

deceptive tactics to induce a confession. The location of the interview is a neutral factor,

for although Hamersley was confined to a bed, there was only one police officer present.

The interview lasted approximately an hour and a half and at no point did Hamersley ask

for a break or seem tired. In fact, Hamersley was very conversational throughout the

entire interview.

       With regard to his mental state, Hamersley points out his manic state during the

incident that had occurred earlier that day. Hamersley’s mental state at the time of the

incident, however, does not equate to his mental state at the time he gave his statement.

The record reveals that Hamersley is an intelligent person with no history of mental

health problems. Moreover, his statement was given nearly six hours after the incident

occurred.

       Hamersley asserts that his level of intoxication rendered his statement involuntary.

Our Supreme Court has held that a confession may be given knowingly and voluntarily,

notwithstanding voluntary intoxication. Ellis v. State, 707 N.E.2d 797 (Ind. 1999). We

will deem a defendant’s confession incompetent only when he is so intoxicated that it

renders him not conscious of what he is doing or produces a state of mania. Id.



                                            18
Intoxication to a lesser degree only goes to the weight to be given to the confession, not

its admissibility. Id.

       As evidence of his intoxication, Hamersley points out that during the interview he

made statements that were not true or simply did not make sense.                 For instance,

Hamersley points to the fact that he purportedly saw helicopters that were not there, that

he referred to walking a dog that he did not have, and that undercover officers had picked

him up and driven him around. Hamersley maintains that such illogical and unfounded

statements prove that his statement was not the product of rational intellect.

       Confounding Hamersley’s claims is evidence from numerous individuals,

including Nurse Senior and Detective Carnes, that Hamersley was coherent, alert,

oriented as to time and place, and that he was able to answer questions appropriately and

track the conversation. Detective Carnes testified that Hamersley could correct her if she

misspoke, that he never appeared agitated, but rather was “very cooperative” and “very

polite” and even helped her draw a diagram of the crime scene. Transcript at 1019.

Detective Carnes had no concerns that Hamersley was intoxicated at the time she

interviewed him.

       Considering the above, we conclude that Hamersley’s alleged intoxication did not

render his statement to police involuntary. See Luckhart v. State, 736 N.E.2d 227 (Ind.

2000). The nonsensical statements that he made during the interview go to the weight to

be given to the confession, not to its admissibility. The trial court did not abuse its

discretion in admitting into evidence Hamersley’s statement to police.



                                             19
                                             3.

       Hamersley challenges the sentence imposed. In sentencing the defendant, the trial

court was meticulous in addressing each mitigating factor proffered by Hamersley. The

court noted that this case was “unique” in that Hamersley, “but for the abuse of alcohol

and substances was certainly of good character and law abiding” prior to this incident.

Transcript at 1485.       The trial court rejected Hamersley’s proffered mitigating

circumstance that the difference in culture between Sheridan, Indiana and Bloomington

played a factor in the lifestyle of drugs and thrill-seeking that Hamersley chose to follow

when he came to Bloomington. The court noted that Hamersley was “still responsible for

the poor judgments that you make that lead you to indulge in such substances and the loss

of judgment and the poor conduct and behavior that can result from that.” Id. at 1487.

The court acknowledged that there was apparently no criminal objective to be gained by

his conduct and that the offense resulted from his “intoxicated state.” Id. at 1490.

       The court found Hamersley’s history of drug abuse to be neither an aggravating

nor mitigating factor, but rather an “explanatory factor” as to how Hamersley found

himself in the position he is in. Id. at 1491. With regard to the impact of the incident on

the victims, the court found such to be an aggravating factor. The court did not find

Hamersley’s age to be a significant factor with regard to its sentencing determination.

The court afforded minimal weight to the fact that Hamersley assisted the drug task force

with regard to its investigation of drug trafficking. The court gave some mitigating

weight to Hamersley’s expression of remorse, stating that he believed his remorse was

“genuine.” Id. at 1492. The trial court also considered as a mitigating circumstance that

                                            20
Hamersley voluntarily sought rehabilitation when he was released to home detention. In

its balancing of the aggravating and mitigating factors, the court found that the mitigating

factors “slightly” outweighed the aggravating factors. Id. at 1493.

       The court pronounced the sentence as follows: thirty years for attempted murder,

with twenty-four years executed and six years suspended; four years for class C felony

criminal recklessness, to be served consecutively to the attempted murder sentence; to

one and one-half years for class D felony criminal recklessness, to be served

consecutively to the attempted murder sentence and concurrently with the C felony

criminal recklessness sentence; and to one year for resisting law enforcement, to be

served concurrently with the attempted murder sentence. Hamersley therefore received

an aggregate sentence of thirty-four years, with six years suspended and the balance

executed.

       Hamersley argues that the sentence imposed is inappropriate. Article 7, section 4

of the Indiana Constitution grants our Supreme Court the power to review and revise

criminal sentences. See Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014). Pursuant to

Ind. Appellate Rule 7, the Supreme Court authorized this court to perform the same task.

Cardwell v. State, 895 N.E.2d 1219 (Ind. 2008). Per App. R. 7(B), we may revise a

sentence “if after due consideration of the trial court’s decision, the Court finds that the

sentence is inappropriate in light of the nature of the offense and the character of the

offender.”   Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting App. R. 7).

“Sentencing review under Appellate Rule 7(B) is very deferential to the trial court.”



                                            21
Conley v. State, 972 N.E.2d 864, 876 (Ind. 2012). Hamersley bears the burden on appeal

of persuading us that his sentence is inappropriate. Conley v. State, 972 N.E.2d 864.

       The determination of whether we regard a sentence as appropriate “turns on our

sense of the culpability of the defendant, the severity of the crime, the damage done to

others, and myriad other factors that come to light in a given case.” Bethea v. State, 983

N.E.2d 1134, 1145 (Ind. 2013) (quoting Cardwell v. State, 895 N.E.2d at 1224).

Moreover, “[t]he principal role of such review is to attempt to leaven the outliers.”

Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013). It is not our goal in this endeavor

to achieve the perceived “correct” sentence in each case. Knapp v. State, 9 N.E.3d 1274.

Accordingly, “the question under Appellate Rule 7(B) is not whether another sentence is

more appropriate; rather, the question is whether the sentence imposed is inappropriate.”

King v. State, 894 N.E.2d 265, 268 (Ind. Ct. App. 2008) (emphasis in original). Our

Supreme Court has indicated that, when analyzing the appropriateness of a criminal

sentence, there is “no right answer ... in any given case.” Brown v. State, 10 N.E.3d 1, 8

(Ind. 2014) (quoting Cardwell v. State, 895 N.E.2d at 1224). Rather, appellate review

and, where appropriate, revision “ultimately boils down to the appellate court’s

‘collective sense of what is appropriate, not a product of a deductive reasoning process.’”

Id. (quoting Cardwell v. State, 895 N.E.2d at 1225). Ultimately, we “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.

       We first consider the nature of the offense. Hamersley fired at least thirty-three

shots from a semi-automatic handgun. He fired some of those shots in the air, some of

                                            22
the shots at vehicles and buildings in a residential area, and fired six shots into the

Greischars’ home. Hamersley fired two shots at Officer Runnebohm, both times taking

an aggressive stance and aiming at center mass. That Hamersley claims he did not know

he could react the way he did following his use of LSD is not a defense to the crimes.

Aside from his admitted drug use and his reaction to the ingestion of LSD prior to the

incident at hand, Hamersley stated in the PSI interview that he had never experienced any

mental health issues that would warrant treatment.           An independent psychological

evaluation did not find any indications of mental illness.

       With regard to the character of the offender, we note that although Hamersley does

not have a documented history of criminal behavior, he admitted that he has used LSD

upwards of fifty times over a two-year period and that he has used other illegal

substances. To be sure, Hamersley has a minor history of delinquent behavior, which

included a pretrial diversion for a marijuana possession charge. Despite admitting to his

frequent use of illegal drugs, Hamersley denies that he has a substance abuse problem.

       Although the record demonstrates that Hamersley was an accomplished student

during high school and at Indiana University, those facts do not excuse his choice to

abuse marijuana, LSD, and alcohol. We do recognize that Hamersley expressed remorse

for his actions and that the trial court found such to be genuine.

       Having considered the nature of the offense and the character of the offender, we

cannot say that Hamersley’s twenty-eight year executed sentence, which is less than the

advisory sentence for the most serious offense for which Hamersley was convicted (i.e.,



                                             23
attempted murder),9 is inappropriate. With due consideration to the trial court’s decision,

we affirm the sentence imposed.

       Judgment affirmed.

VAIDIK, C.J., and MAY, J., concur.




9
  See Ind. Code Ann. § 35-50-2-4 (West, Westlaw current with all 2014 Public Laws of the 2014 Second
Regular Session and Second Regular Technical Session of the 118th General Assembly) (“A person who
commits a Class A felony (for a crime committed before July 1, 2014) shall be imprisoned for a fixed
term of between twenty (20) and fifty (50) years, with the advisory sentence being thirty (30) years”).


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