                                                                         FILED
                                                                     Mar 15 2019, 9:07 am

                                                                         CLERK
                                                                     Indiana Supreme Court
                                                                        Court of Appeals
                                                                          and Tax Court




ATTORNEY FOR APPELLANT                                     ATTORNEYS FOR APPELLEE
Patrick J. Smith                                           Curtis T. Hill, Jr.
Bedford, Indiana                                           Attorney General of Indiana

                                                           Tyler G. Banks
                                                           Deputy Attorney General
                                                           Indianapolis, Indiana



                                            IN THE
    COURT OF APPEALS OF INDIANA

Joe Paul Hambel,                                           March 15, 2019
Appellant-Defendant,                                       Court of Appeals Case No.
                                                           18A-CR-686
        v.                                                 Appeal from the Washington
                                                           Circuit Court
State of Indiana,                                          The Honorable Larry W. Medlock,
Appellee-Plaintiff.                                        Judge
                                                           Trial Court Cause No.
                                                           88C01-1608-MR-400




Najam, Judge.




Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                            Page 1 of 22
                                         Statement of the Case
[1]   Joe Paul Hambel appeals his convictions for two counts of murder, felonies,

      and one count of criminal trespass, as a Class A misdemeanor, following a jury

      trial. Hambel presents the following consolidated issues for our review:


               1.       Whether the trial court abused its discretion when it
                        denied his motion for mistrial based on alleged juror
                        misconduct.


               2.       Whether his sentence is inappropriate in light of the nature
                        of the offenses and his character.


[2]   We affirm.1


                                   Facts and Procedural History
[3]   On August 19, 2016, Hambel approached an officer with the Salem Police

      Department, Ronald Mays, to discuss Hambel’s “concern with drugs” in

      Washington County, including drug activity at a home where a woman named

      Valerie Dicus lived. Tr. Vol. 2 at 168. Hambel told Officer Mays that he

      wanted to become an informant, and he asked Officer Mays “how [Hambel]

      could help get the drugs out of Washington County.” Id. Officer Mays told

      Hambel to contact Salem Police Officer Eric Mills.




      1
        We held oral argument in this case on February 26, 2019, at Pike Central High School in Petersburg,
      Indiana. We thank counsel for their excellent advocacy and extend our appreciation to the faculty, staff, and
      students of Pike Central High School for their hospitality.

      Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                                Page 2 of 22
[4]   Later that evening, Hambel was out with his neighbor R.J. Sease, and they

      stopped at a Circle K gas station. Officer Mills was there to investigate a motor

      vehicle collision at the station. Hambel approached Officer Mills, identified

      himself, told Officer Mills that he wanted to help “clean up the drug problem in

      the town,” and identified Dicus as “one of the drug dealers that he was wanting

      to help with.” Id. at 185. Officer Mills told Hambel that he would call him so

      that the two could sit down and discuss the matter another time.


[5]   After Hambel and Sease left the gas station, they went back to Hambel’s

      apartment. There, Hambel took Sease to a bedroom and showed him a gun,

      which Hambel put into a holster “around his ankle.” Tr. Vol. 3 at 6. Sease also

      saw that Hambel had a gun “on his hip.” Id. at 7. Sease then left the apartment

      with his girlfriend to run an errand.


[6]   Sease returned to Hambel’s apartment a while later, and, at approximately

      midnight, the two left in Hambel’s car, which Hambel wanted to sell to Sease.

      Hambel drove the car back to the Circle K and bought cigarettes. After that,

      Hambel drove to a house on Small Street. Hambel parked his car on the street,

      turned the headlights off, and got out of the car. Sease stayed in the car. After

      a few minutes had passed, Sease heard gunshots, and then Hambel ran back to

      the car and got in the driver’s seat. Hambel had a gun in his hand, and he told

      Sease that “he had took [sic] care of one of Washington County’s biggest drug

      problems.” Id. at 17. And Hambel told Sease that he had just “shot her in the

      head” and “shot him.” Id. Hambel then drove back to his apartment. Before



      Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019        Page 3 of 22
      he pulled the car into the parking lot, he told Sease, “[I]f you tell anyone, I’ve

      got a bigger [gun] I’m going to use on you.” Id. at 18.


[7]   Logan Shelton, Dicus’ half-brother, had been sleeping in his bedroom at his

      family’s house on Small Street when, after midnight on August 20, he was

      awakened by gunshots. Logan went to the living room to investigate and found

      Dicus’ boyfriend, Joe Hobson, on the floor bleeding and “struggling to

      breathe.” Tr. Vol. 2 at 149. Logan’s brother Seth was there, and they decided

      that they should call 9-1-1. When Logan went for the phone, he saw Dicus

      motionless on the couch, and he saw “a little pile of blood.” Id. at 150. Logan

      then called 9-1-1. Dicus and Hobson were subsequently declared dead as a

      result of gunshot wounds.


[8]   In the early morning hours of August 20, Indiana State Police Detective David

      Mitchell began investigating the murders, and he quickly learned from Officer

      Mays about Hambel’s interest in Dicus’ drug-dealing activity. Accordingly,

      Detective Mitchell found Hambel at his apartment, told him that he would like

      to discuss the murders, and transported Hambel to the Washington County

      Sheriff’s Department, where Hambel agreed to give a recorded statement.

      Hambel initially denied having been at Dicus’ house. But he later admitted that

      he had gone to her house the night of August 19 and “looked in windows.” Tr.

      Vol. 3 at 84. At the conclusion of the interview, Hambel gave Detective

      Mitchell consent to search his apartment.




      Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019          Page 4 of 22
[9]    Hambel accompanied Detective Mitchell to Hambel’s apartment, and Hambel

       told Detective Mitchell that he could find his 9-mm handgun under the driver’s

       seat of his car. Detective Mitchell secured that handgun. Inside Hambel’s

       apartment, Detective Mitchell found a .32-caliber handgun in an ankle holster

       on top of a cabinet in the bathroom. Detective Mitchell remembered that there

       were “several .32 caliber shell casings at the scene” of the murders. Id. at 181.

       Detective Mitchell then transported Hambel back to the Sheriff’s Department

       for a second interview. In that interview, Hambel admitted that he had shot

       Dicus and Hobson in “self defense.” Id. at 187. He claimed that he had gone

       into the house “to scare the s*** out of” Dicus and Hobson and, following a

       scuffle between Hambel and Hobson for Hambel’s gun, the gun went off. Id. at

       225.


[10]   The State charged Hambel with two counts of murder; two counts of felony

       murder; and burglary, as a Level 5 felony. The State subsequently dismissed

       the burglary count and added a count of criminal trespass, as a Class A

       misdemeanor. During the voir dire portion of the ensuing jury trial, a potential

       juror ultimately seated as Juror 2 engaged in the following colloquy about his

       familiarity with Hambel and the murders:


               Juror 2:          My wife graduated High School with [Hambel].

               State:            Okay and not you, but your wife?

               Juror 2:          Yeah.

               State:            Do you know . . . him then?

       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019         Page 5 of 22
        Juror 2:          Ah, just through her.

        State:            Through her, does she, was she a friend . . .

        Juror 2:          Yeah.

        State:            . . . close friend?

        Juror 2:          Yeah, pretty close friends with her.

        State:            Have you talked with her about this situation then?

        Juror 2:          Not a lot, no.

        State:            Okay, have you talked to her about what kind of
                          person he may be?

        Juror 2:          Yeah.

        State:            Have you, I don’t want you to tell me . . . have you
                          developed any kind of opinions or beliefs about him
                          or the case, based on that conversation?

        Juror 2:          Yeah, a little.

        State:            Okay. . . . Do you feel like this may not be the right
                          case for you, given what you know?

        Juror 2:          Yeah, probably.


Voir Dire Tr. at 7. The State then moved to strike Juror 2 for cause. Defense

counsel asked Juror 2 several questions about his wife’s relationship with

Hambel, and defense counsel argued that Juror 2 could be impartial. The trial




Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019               Page 6 of 22
       court agreed and denied the State’s motion to strike Juror 2 for cause. Juror 2

       was ultimately seated on the jury.


[11]   On the morning of the sixth day of the jury trial, the court announced that two

       jurors had notified the bailiff that “one juror may have had extra judicial

       conduct with a family member . . . .” Tr. Vol. 4 at 64. The juror in question

       was Juror 2. Accordingly, the court conducted interviews with several jurors to

       assess the situation. The first juror the court interviewed stated that he had not

       heard Juror 2 make any improper comments. The second juror the court

       interviewed stated as follows:


               Juror:            One item is, he comes in to the jury room and
                                 continues talking about his wife making comments
                                 about the defendant. Somewhat, to my assumption,
                                 of course, I am making an assumption that he’s speaking
                                 with this about [sic] his wife.

               Defense:          And without telling us what was said, is he saying
                                 this to the entire group? Are all of the jurors. . .

               Juror:            I don’t think that all of the jurors are hearing it, no.
                                 I mean obviously, that’s why, there was [sic] a few
                                 [of] us that . . .

               Defense:          Right. Were matters being discussed without all of
                                 the jurors present?

               Juror:            No.

               Defense:          How would he then have a discussion where only
                                 part of the group was here and the entire group was
                                 not here?

       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                    Page 7 of 22
        Juror:            When we go to the jury room everybody talks
                          about, not necessarily things about the case, but just
                          their general conversations about their day or where
                          they are going and things like that.

        Defense:          Right. Has [Juror 2] related out loud where you
                          could hear him say that his wife has formed an
                          opinion and provided that opinion to him?

        Juror:            Yes.

        Defense:          And has he carried that opinion into the jury room?

        Juror:            I have, no, no. Has not, no. [sic]

        Defense:          When, where and how was he making these
                          expressions to jurors?

        Juror:            The jurors that sit in that area, the only thing I recall
                          him saying is talking about his wife and her opinion
                          of what’s going on. And that’s it.

        Defense:          Okay. And does he, is that your impression or
                          understanding that based upon what he’s saying is
                          that he’s discussing what he’s hearing in court with
                          her?

        Juror:            That, that’s an assumption that, that I’m making.

        Defense:          And, and that’s a fair statement. But, that’s your
                          impression, is that. . .

        Juror:            That’s my impression.

        Defense:          . . . that him [sic] and his wife are having a
                          discussion about the case?


Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                Page 8 of 22
        Juror:            That’s my impression, yes.

        Defense:          And he is quoting his wife as to how and why she’s
                          expressing herself to him?

        Juror:            Not really giving a reason, no, no. I assume that it’s
                          something from the past.

        Defense:          Okay. Is he saying that his wife is telling him that
                          she’s receiving communications from family
                          members?
        Juror:            No, no, no, nothing in regards to that. Just
                          basically making a generalized comment about how
                          his wife feels.

        Defense:          And I assume then that his wife has a firm
                          impression of. . .

        Juror:            I can’t speak for someone else.

        Defense:          Okay. [Juror 2] is expressing, in his words, that she
                          has a firm impression on these matters?

        Juror:            I wouldn’t say firm impression. I mean, I don’t
                          know either one of them so I mean that he’s making
                          a statement about how she feels that’s all I can tell
                          you.

        Defense:          Okay. How many times has he made statements in
                          that regard?

        Juror:            I would say at least three or four times.

        Defense:          Besides yourself, who are you aware of that may
                          have heard these comments on the jury?



Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                  Page 9 of 22
        Juror:            [Two other jurors], I believe. Um, [one other juror]
                          and I believe [one other juror] has heard. I believe,
                          like I said. I am definite of the first three, not sure
                          about the fourth.

        Defense:          From your observations of [Juror 2], does he appear
                          to have his mind made up?

        Juror:            I’m not Nostradamus, I can’t predict how he has his
                          mind.

        Defense:          Has he expressed any statement to you that would
                          lead you to believe he has his mind made up?

        Juror:            I guess it depends how big of a stick his wife wields.
                          I couldn’t tell you that, I mean, you know you’re
                          asking me questions that I can’t, I’m making
                          assumptions and I’ve probably, maybe assumed too
                          much already.

                                                 ***

        State:            Do you have a, is he saying, my wife thinks he’s
                          guilty or my wife thinks he’s not guilty?

        Juror:            Not those words, no.

        State:            So what words?

        Juror:            She has basically said that Mr. Hambel, this is not
                          Mr. Hambel.

        State:            It’s not the guy she knew.

        Juror:            Yes.



Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019               Page 10 of 22
        State:            Okay, okay. So what he basically said is my wife
                          knows, my wife says she knows him but it’s based
                          on something she knew years, years ago of him.

        Juror:            From my understanding, they, he, he made, I
                          remember him when he was, during jury selection,
                          he stated that . . . the defendant came to his house
                          two years ago, or something like that.


Id. at 73-78 (emphases added). After questioning two additional jurors, the

court engaged Juror 2 in the following colloquy:


        Defense:          There has been some concern expressed through the
                          bailiff to the Court and to the attorneys that you
                          may be either having people attempt to approach
                          you to discuss the merits of the case with you or
                          receiving information other than the evidence that
                          has been introduced to the Court. Have you
                          discussed the matters for which you’re serving as a
                          juror with anyone besides either the Court, the
                          bailiff or other jurors?

        Juror 2:          Mmmm, no, I mean coworkers at Wal-Mart come
                          up to me and try to talk to me but I pretty much
                          hush it up pretty quickly.

        Defense:          Have you discussed this matter with your wife?

        Juror 2:          Mmmm, no.

        Defense:          Has your wife attempted to discuss this matter with
                          you?

        Juror 2:          No, not really.



Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019            Page 11 of 22
        Defense:          Okay. If we were receiving information that
                          suggested you were quoting her to other jurors and
                          that she had expressed an opinion and you carried
                          the opinion into these informal discussions, would
                          that be true?

        Juror 2:          No.

        Defense:          Okay. Any idea why someone else would suggest
                          that you’re bringing up outside conversations in the
                          course of your informal discussions in the jury
                          room?

        Juror 2:          No, well my wife went to school with him so that
                          would be one. I have brought up conversations that
                          she’s had with him in school.

        Defense:          Okay. Would that be during times when you were
                          guys were back in the jury room waiting to come
                          back into Court?

        Juror 2:          Yeah.

        Defense:          Okay. Has anyone approached your wife in an
                          attempt to communicate with you?

        Juror 2:          Not that I know of, no.

        Defense:          Have you carried into those informal discussions
                          her thoughts or her recollections or opinions about
                          Mr. Hambel?

        Juror 2:          Yeah.

        Defense:          Tell the Court what those thoughts or recollections
                          may have been.


Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019            Page 12 of 22
               Juror 2:          Uh, just her opinion of him when they were in
                                 school, their friendship, their conversations and
                                 that’s pretty much it.

               Defense:          Were they friends by your understanding when they
                                 were in school together?

               Juror 2:          Yeah.

               Defense:          And you talked about that in jury selection I
                                 believe, is that right?

               Juror 2:          Yes.


       Id. at 88-90.


[12]   At that point, Hambel moved for a mistrial “based upon what [he] believe[d]

       [we]re inappropriate communications that a juror had with a non-witness, in

       direct violation of the admonitions provided by the Court to the jury.” Id. at 92.

       Hambel also moved for a mistrial “based upon the disclosures, most notably

       from [one particular juror, that] the deliberations ha[d] already commenced.”

       Id. After hearing argument, the trial court took the matter under advisement

       and, after a recess, the court interviewed the remaining jurors. The court

       admonished each of the jurors not to discuss the interviews with the other

       jurors. At the conclusion of those interviews, the court denied Hambel’s

       motion for a mistrial. And, without objection from Hambel, the court removed

       Juror 2 from the jury.


[13]   The jury found Hambel guilty as charged on all five counts. The court entered

       judgment of conviction on three counts: two counts of murder, felonies; and
       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019             Page 13 of 22
       one count of criminal trespass, as a Class A misdemeanor. The court then

       sentenced Hambel to an aggregate term of 121 years. This appeal ensued.


                                        Discussion and Decision
                                          Issue One: Mistrial Motion

[14]   Hambel challenges the trial court’s denial of his motion for a mistrial. A trial

       court is in the best position to evaluate whether a mistrial is warranted because

       it can assess first-hand all relevant facts and circumstances and their impact on

       the jury. Ramirez v. State, 7 N.E.3d 933, 935 (Ind. 2014). We therefore review

       the denial of a motion for mistrial only for abuse of discretion. Id.


[15]   Hambel contends that the trial court abused its discretion when it denied his

       motion for a mistrial because: (1) the court did not apply a presumption of

       prejudice when it came to light that Juror 2 “was bringing outside information

       into the jury room”; (2) in the alternative, the court erred when it concluded

       that Juror 2 did not commit gross misconduct that probably harmed Hambel;

       and (3) the court erred when it concluded that the jury had not begun

       deliberating prior to the conclusion of the parties’ submission of evidence.

       Appellant’s Br. at 22. We address only Hambel’s first and third contentions,

       which are dispositive of this issue.2




       2
          We need not address Hambel’s contention in the alternative that the trial court abused its discretion when
       it concluded that Juror 2 did not commit gross misconduct that probably harmed Hambel. As we explain
       below, the trial court did not make such a conclusion.

       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                                Page 14 of 22
                                            Rebuttable Presumption

[16]   In Ramirez, our Supreme Court addressed confusion among our courts

       regarding the presumption of prejudice in cases with alleged tainting of the jury.

       The Court held as follows:


               Defendants seeking a mistrial [in such cases] are entitled to the
               presumption of prejudice only after making two showings, by a
               preponderance of the evidence: (1) extra-judicial contact or
               communications between jurors and unauthorized persons
               occurred, and (2) the contact or communications pertained to the
               matter before the jury. Currin[ v. State], 497 N.E.2d [1045,] 1046
               [(Ind. 1986)]. The burden then shifts to the State to rebut this
               presumption of prejudice by showing that any contact or
               communications were harmless. See Myers v. State, 240 Ind. 641,
               646, 168 N.E.2d 220, 223 (1960); Oldham v. State, 249 Ind. 301,
               305, 231 N.E.2d 791, 793 (1967). If the State does not rebut the
               presumption, the trial court must grant a new trial. On the other
               hand, if a defendant fails to make the initial two-part showing,
               the presumption does not apply. Instead, the trial court must
               apply the probable harm standard for juror misconduct, granting
               a new trial only if the misconduct is “gross and probably
               harmed” the defendant. Henri v. Curto, 908 N.E.2d 196, 202 (Ind.
               2009) (internal quotation marks omitted). But in egregious cases
               where juror conduct fundamentally compromises the appearance
               of juror neutrality, trial courts should skip Currin’s two-part
               inquiry, find irrebuttable prejudice, and immediately declare a
               mistrial. May[ v. State], 716 N.E.2d [419,] 422-23 [(Ind. 1999)];
               Kelley[ v. State], 555 N.E.2d [140,] 142 [(Ind. 1990)]; Woods[ v.
               State], 233 Ind. [320,] 323-24, 119 N.E.2d [558,] 560-61 [(Ind.
               1954)]. At all times, trial courts have discretion to decide
               whether a defendant has satisfied the initial two-part showing
               necessary to obtain the presumption of prejudice or a finding of
               irrebuttable prejudice. See May, 716 N.E.2d at 421-22.



       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019       Page 15 of 22
       Id. at 939.


[17]   Here, in response to Hambel’s motion for a mistrial, and after questioning a few

       jurors, including Juror 2, about the extra-judicial contact, the trial court stated

       as follows:


               Well, my . . . analysis is as would be required by Ramirez, that
               two prong test: proof by a preponderance of the evidence that
               extra judicial information or communications occurred. It seems
               obvious that [Juror 2] has at least communicated some
               information or opinion about Mr. Hambel to perhaps, limited
               members, perhaps all members, but many of them appear to have
               not paid any attention or didn’t hear him. And that the
               communications occurred and that pertained to a matter pending
               before the jury. That . . . portion is not obvious to the court.
               Even if Ramirez would indicate that the State does not rebut, but
               [sic] the presumption, [the] trial court must grant a new trial and
               on the other hand if the defendant fails to make an initial two
               part showing the presumption does not apply, instead the trial
               court must apply a probable harm standard for juror misconduct
               granting a new trial only if the misconduct is gross and probably
               harmed the defendant. My analysis is that the communication
               did not harm the defendant, in fact, it appeared from the court’s
               perception that it may have been trying to help the defendant. So
               I find that the communications w[ere] harmless. Now, I think that it
               also appears appropriate that, therefore your motion to, for
               mistrial is denied. . . .


       Tr. Vol. 4 at 125 (emphasis added).


[18]   On appeal, Hambel first notes that “[t]he trial court’s ruling is hardly a model of

       clarity” and interprets it to mean that the court did not apply the rebuttable

       presumption under Ramirez. Appellant’s Br. at 24. We agree that, at first

       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019         Page 16 of 22
       glance, it is unclear whether the court applied the presumption here. On the

       one hand, the trial court found that it was “obvious” that the first prong under

       Ramirez was satisfied, and the court then stated that whether the second prong

       had been satisfied was “not obvious.” Tr. Vol. 4 at 125. However, the court

       concluded that Juror 2’s extra-judicial “communications w[ere] harmless,”

       which is a direct reference to the State’s burden under Ramirez to rebut the

       presumption.3 Id. Accordingly, the trial court’s ruling, when read as a whole,

       demonstrates that the court properly applied the rebuttable presumption under

       Ramirez, and we reject Hambel’s contention that the court erred on this issue.


[19]   Further, the evidence is overwhelming that Juror 2’s communications to some

       of the jurors were harmless. Hambel asserts that he was prejudiced by Juror 2’s

       remarks because another juror described Juror 2 as “trying to throw [the jurors]

       in another direction” while discussing the case. Tr. Vol. 4 at 79. But it is

       undisputed that Juror 2 communicated only information that was favorable to

       Hambel. Thus, there is no evidence that Hambel was harmed by the substance

       of Juror 2’s remarks.4 Hambel concedes that only two or three jurors had even

       heard Juror 2 remark on his wife’s opinions of Hambel. And, after Juror 2 was




       3
         Hambel asserts that the trial court applied the probable harm standard, but the court only mentioned the
       probable harm standard in explaining the test under Ramirez.
       4
         To the extent Hambel contends that he was harmed by the trial court’s removal of Juror 2 from the jury
       because Juror 2 had a favorable opinion of Hambel, Hambel did not object to his removal and cannot now
       complain.

       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019                              Page 17 of 22
       removed from the jury and replaced, the trial court admonished the jurors as

       follows:


               I want to remind the jury of the preliminary instructions that the
               court had previously provided to the jury. As I admonish you,
               each and every time that you leave, you are not to have any
               discussions with anyone other than yourselves and only while
               you’re together in the jury room. Only consider that evidence
               which comes before you in this court room and was admitted by
               the Court.


       Tr. Vol. 4 at 129. There is no evidence that Juror 2’s remarks impacted the

       jurors’ ability to remain impartial. In any event, assuming any prejudice to

       Hambel, we presume that the court’s admonishment cured it. Jones v. State, 101

       N.E.3d 249, 258 (Ind. Ct. App. 2018). The trial court did not abuse its

       discretion when it concluded that Juror 2’s remarks to a few jurors were

       harmless and denied Hambel’s motion for mistrial on that basis. See, e.g.,

       Weisheit v. State, 26 N.E.3d 3, 16 (Ind. 2015) (holding trial court did not abuse

       its discretion when it denied mistrial motion where, after extrajudicial

       communication to jurors was exposed, court questioned each juror,

       admonished the jurors, and dismissed the offending juror).


                                                   Deliberations

[20]   Hambel next contends that the jurors engaged in deliberations “prior to the

       conclusion of the evidence in the case.” Appellant’s Br. at 28. In support of

       that contention, Hambel directs this court to a juror’s statement that Juror 2

       “was thwarting the jury’s deliberations.” Id. In particular, when asked about


       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019          Page 18 of 22
       Juror 2’s inappropriate remarks about Hambel, one juror said: “[W]e’d be

       sitting there, deliberating and [Juror 2 would] come off with something to try to

       get us in another direction.” Tr. Vol. 4 at 80. When defense counsel asked that

       juror to clarify what he had meant by “deliberating,” the juror agreed that they

       were “discussing the evidence that had been presented during the most recent

       session in court.” Id.


[21]   Indiana Jury Rule 20(a)(8) provides in relevant part that jurors “are permitted

       to discuss the evidence among themselves in the jury room during recesses from

       trial when all are present, as long as they reserve judgment about the outcome

       of the case until deliberations commence.” With the promulgation of that rule,

       our Supreme Court “has unambiguously made a distinction between

       discussions and deliberations.” Weatherspoon v. State, 912 N.E.2d 437, 441 (Ind.

       Ct. App. 2009), trans. denied.


[22]   The State maintains that there is no evidence that the jurors began deliberations

       before all of the evidence had been submitted. Indeed, each of the jurors

       questioned about whether deliberations had begun when the court removed

       Juror 2 responded that there had only been discussions, but no judgments about

       the ultimate outcome. We agree with the State and hold that the trial court did

       not abuse its discretion when it denied Hambel’s motion for mistrial on this

       basis.




       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019      Page 19 of 22
                                              Issue Two: Sentence

[23]   Hambel contends that his sentence is inappropriate in light of the nature of the

       offenses and his character. Indiana Appellate Rule 7(B) provides that “[t]he

       Court may revise a sentence authorized by statute 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.” This court

       has held that “[t]he advisory sentence is the starting point the legislature has

       selected as an appropriate sentence for the crime committed.” Sanders v. State,

       71 N.E.3d 839, 844 (Ind. Ct. App. 2017). And the Indiana Supreme Court has

       explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. Anglemyer v.
               State, 868 N.E.2d 482, 494 (Ind.), as amended (July 10, 2007),
               decision clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[24]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

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

       others, and myriad other facts that come to light in a given case.” Id. at 1224.


       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019         Page 20 of 22
       The question is not whether another sentence is more appropriate, but rather

       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[25]   With respect to the nature of the offenses, Hambel asserts that, while there were

       “young persons in the residence” at the time of the murders, “there is no

       evidence that the young persons did see the offenses, and little evidence that

       Hambel thought they would see the offenses.” Appellant’s Br. at 38. And

       Hambel points out that “it should be considered that the events of August 20

       were set into motion by Hambel’s serious concerns about drug use and dealing

       in Washington County.” Id. With respect to his character, Hambel maintains

       that: he has no criminal history; despite his PTSD, anxiety, and depression, he

       has maintained steady employment; and he has two children. Hambel

       characterizes his character as “excellent.” Id. at 39.


[26]   However, as the State points out, the nature of the offenses supports the 121-

       year sentence in that Hambel: planned the murders; shot Dicus in the head

       from close range; shot Hobson six times; and threatened to kill Sease if he told

       anyone about the murders. As for his character, Hambel may have been

       motivated to commit these murders by his concern about the drug problem in

       Washington County and his interest in helping law enforcement. But when he

       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019       Page 21 of 22
       became a vigilante and took the law into his own hands, he displayed a blatant

       disrespect for the law, which reflects poorly on his character. We cannot say

       that Hambel’s sentence is inappropriate in light of the nature of the offenses and

       his character.


[27]   Affirmed.


       Baker, J., and Brown, J., concur.




       Court of Appeals of Indiana | Opinion 18A-CR-686 | March 15, 2019       Page 22 of 22
