MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                           FILED
regarded as precedent or cited before any                                 Jun 19 2020, 8:31 am
court except for the purpose of establishing
                                                                                CLERK
the defense of res judicata, collateral                                   Indiana Supreme Court
                                                                             Court of Appeals
estoppel, or the law of the case.                                              and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Brian A. Karle                                           Curtis T. Hill, Jr.
Ball Eggleston, PC                                       Attorney General
Lafayette, Indiana
                                                         Megan M. Smith
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Sebastian S. Smith,                                      June 19, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-2039
        v.                                               Appeal from the Tippecanoe
                                                         Circuit Court
State of Indiana,                                        The Honorable Sean M. Persin,
Appellee-Plaintiff                                       Judge
                                                         Trial Court Cause No.
                                                         79C01-1609-F2-28



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020                     Page 1 of 16
                                             Case Summary
[1]   Sebastian S. Smith shot and seriously injured Brendon Firth during an armed

      robbery. A jury found Smith guilty on six felony counts and 3 misdemeanor

      counts. The trial court entered judgment of conviction only for one count of

      level 2 felony robbery resulting in serious bodily injury and entered an

      enhanced sentence based upon Smith’s use of a firearm during the robbery.

      Smith now appeals asserting that the trial court abused its discretion in

      excluding certain evidence, that his conviction and sentence enhancement

      violate double jeopardy principles, and that his sentence is inappropriate. The

      State cross-appeals urging that remand for amendment of the sentencing order

      and abstract of judgment is necessary to provide for consecutive sentencing with

      a term of imprisonment imposed in another county. We disagree with Smith

      but agree with the State. Accordingly, we affirm Smith’s conviction and

      sentence, but remand for amendment of the sentencing order and abstract of

      judgment.


                                 Facts and Procedural History
[2]   The evidence most favorable to Smith’s conviction reveals that on August 10,

      2016, Smith, Tre’velle Young, and some other individuals were at Smith’s

      residence smoking “[w]eed and some other stuff,” and discussing robbing a

      drug dealer, Ryan Wall, who lived nearby. Tr. Vol. 2 at 108. Smith and Young

      later went to Wall’s apartment under the pretext of buying drugs in order to

      “feel the place out.” Id. Wall, his girlfriend, and two of Wall’s friends, one of

      who was Brendon Firth, were present. While at Wall’s apartment, Smith

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 2 of 16
      purchased Xanax from Wall and spoke to him about the possibility of selling

      him a television. Smith told Wall that he would return later with the television.


[3]   Smith and Young went back to Smith’s residence and planned how the robbery

      would take place. They then returned to Wall’s apartment with a television.

      The television sale was just a “sham” to get back into Wall’s apartment. Id. at

      113. As Wall was checking to see if the television worked, Smith instructed

      Young to go down to the car to retrieve “the remote.” Id. at 80. This was

      “code” instructing Young to retrieve a gun from the car. Id. at 145. After

      Young returned with a gun, Smith pulled out his handgun and pointed it

      around the room at the people. Smith yelled at Wall, “Where is the sh*t at?”

      and ordered Wall to give him “everything [he] had.” Id. at 94, 171. Firth stood

      up, pulled out a knife, and stepped toward Smith telling him that he “wasn’t

      getting anything from anyone.” Id. at 171. Wall told Firth that they should just

      comply with Smith’s demands and “giv[e] him everything[,]” and Wall tossed a

      Crown Royal bag full of pills onto the coffee table toward Smith. Id. Smith

      looked at Wall, and back at Firth, and then shot Firth in the chest. After

      shooting Firth, Smith grabbed the bag full of pills, threw it to Young, and ran

      out of the apartment. Firth suffered life-threatening injuries as a result of the

      gunshot.


[4]   The State initially charged Smith with one count of level 2 felony robbery

      resulting in serious bodily injury. The State subsequently added charges for

      level 3 felony conspiracy to commit robbery, level 3 felony criminal

      confinement, class A misdemeanor theft, level 3 felony battery, two counts of

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 3 of 16
      level 5 felony battery, class A misdemeanor carrying a handgun without a

      license, and level 5 felony carrying a handgun without a license. The State also

      requested a sentence enhancement due to Smith’s use of a firearm during the

      commission of his offenses. In September 2018, the State also added one count

      of level 1 felony attempted murder.


[5]   A jury trial was held in June 2019. The jury found Smith not guilty of

      attempted murder, but guilty on all other counts. The trial court entered

      judgment of conviction solely on the level 2 robbery count and found that the

      State had proved the elements of the use-of-a-firearm sentence enhancement

      beyond a reasonable doubt. The trial court sentenced Smith to twenty-five

      years for the level 2 felony, enhanced by fifteen years for the use of a firearm,

      with thirty-five years executed and five years suspended to probation. This

      appeal ensued. We will provide additional facts in our discussion when

      necessary.


                                     Discussion and Decision

           Section 1—The trial court did not abuse its discretion in
                       excluding certain evidence.
[6]   Smith first contends that the trial court abused its discretion in excluding certain

      evidence. We review the trial court’s ruling on the admission or exclusion of

      evidence for an abuse of discretion. Johnson v. State, 38 N.E.3d 658, 660-61 (Ind.

      Ct. App. 2015), trans denied. We reverse only where the decision is clearly

      against the logic and effect of the facts and circumstances. Id. at 661. Even if


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 4 of 16
      the trial court’s decision was an abuse of discretion, we will not reverse if the

      admission or exclusion constituted harmless error. Id.


[7]   Although Smith attempted to serve Wall with several subpoenas to appear at

      trial, Wall failed to appear as a witness. During trial, Smith sought to elicit

      testimony from a police detective, over the State’s objection, that on the night of

      the robbery, Wall told the detective that Smith and Firth had engaged in a

      struggle prior to the shooting. Smith claimed that Wall’s out-of-court statement

      supported his claim of self-defense, and was admissible pursuant to the excited

      utterance exception to the hearsay rule. The trial court excluded the evidence

      as inadmissible.


[8]   “Hearsay” is a statement, other than one made by the declarant while testifying

      at the trial or hearing, offered in evidence to prove the truth of the matter

      asserted. Ind. Evidence Rule 801(c). As a general rule, hearsay evidence is

      inadmissible. Ind. Evidence Rule 802. One exception to the hearsay rule is the

      “excited utterance” exception contained in Evidence Rule 803(2). This rule

      provides that “[a] statement relating to a startling event or condition, made

      while the declarant was under the stress of excitement that it caused” is not

      excluded by the hearsay rule, even if the declarant is available as a witness.

      Ind. Evidence Rule 803(2). In order for a hearsay statement to be admitted as

      an excited utterance, three elements must be present: (1) a startling event has

      occurred; (2) a statement was made by a declarant while under the stress of

      excitement caused by the event; and (3) the statement relates to the event.

      Boatner v. State, 934 N.E.2d 184, 186-87 (Ind. Ct. App. 2010). “This is not a

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 5 of 16
      mechanical test, and the admissibility of an allegedly excited utterance turns on

      whether the statement was inherently reliable because the witness was under

      the stress of the event and unlikely to make deliberate falsifications.” Id. “The

      heart of the inquiry is whether the declarant was incapable of thoughtful

      reflection.” Id. (citation omitted). While the amount of time that has passed is

      not dispositive, “a statement that is made long after the startling event is usually

      less likely to be an excited utterance.” Id.


[9]   Here, the record does not support a claim that Wall’s statement “was inherently

      reliable” because he was “under the stress of the event” and therefore “unlikely

      to make deliberate falsifications.” See id. Smith vaguely asserts that the

      statement was made “shortly” after the shooting, Appellant’s Br. at 12, but the

      record is unclear as to exactly when Wall spoke to the detective. 1 The State

      emphasized that the record indicated that Wall “spoke to multiple officers” well

      before he made the statement in question, and there was no evidence that Wall

      “was under the stress of the event still” when speaking to the detective. Tr. Vol.

      3 at 108. Additionally, the record indicates that Wall, a known drug dealer,

      and the other witnesses present deliberately lied to and concealed evidence from

      the officers who arrived on the scene within minutes of the shooting. This cuts

      against any assertion that Wall was incapable of thoughtful reflection and

      unlikely to make deliberate falsifications in his subsequent statement. Under




      1
       Smith’s attorney stated that he believed the statement was made “within an hour or two” of the shooting,
      but he admitted he was unsure. Tr. Vol. 3 at 108.

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020                  Page 6 of 16
       the circumstances, we cannot say that the trial court abused its discretion in

       excluding Wall’s out-of-court statement as inadmissible hearsay.


[10]   In any event, we agree with the State that any error in the exclusion of Wall’s

       statement was harmless at most. Errors in the exclusion of evidence are

       considered harmless unless they affect the substantial rights of a party.

       Whiteside v. State, 853 N.E.2d 1021, 1025 (Ind. Ct. App. 2006). To determine

       whether an error in the exclusion of evidence affected a party’s substantial

       rights, we assess the probable impact of the evidence on the jury. Id. Smith

       sought to introduce Wall’s statement regarding a struggle with Firth to support

       his claim of self-defense to the charge of attempted murder, for which he was

       acquitted. This self-defense theory had no bearing on his conviction for robbery

       resulting in bodily injury. 2 Accordingly, Smith cannot demonstrate that any

       error in the exclusion of Wall’s out-of-court statement affected his substantial

       rights.


              Section 2 – Smith’s robbery conviction and sentencing
             enhancement do not violate double jeopardy principles.
[11]   Next, Smith argues that his conviction for level 2 felony robbery and the use-of-

       a-firearm sentence enhancement attached to that conviction violate Indiana’s

       double jeopardy principles. We review questions of double jeopardy de novo,

       giving no consideration to the trial court’s decision below. Goldsberry v. State,


       2
         Smith’s theory of defense regarding the robbery was that Young was the perpetrator of, and possessed the
       requisite mens rea for, the robbery, and that Smith was essentially at the wrong place at the wrong time. Tr.
       Vol. 3 at 160, 171-73.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020                     Page 7 of 16
       821 N.E.2d 447, 458 (Ind. Ct. App. 2005). Article 1, Section 14 of the Indiana

       Constitution provides: “No person shall be put in jeopardy twice for the same

       offense.” This provision was intended to “prevent the State from being able to

       proceed against a person twice for the same criminal transgression.” Richardson

       v. State, 717 N.E.2d 32, 49 (Ind. 1999). Under Richardson, “two or more

       offenses are the same offense ... if, with respect to either the statutory elements

       of the challenged crimes or the actual evidence used to convict, the essential

       elements of one challenged offense also establish the essential elements of

       another challenged offense.” Id.


[12]   While Richardson is aimed primarily at multiple convictions, our supreme court

       has recognized a series of rules of statutory construction and common law that

       supplements the constitutional protections afforded by the Indiana Double

       Jeopardy Clause. Miller v. State, 790 N.E.2d 437, 439 (Ind. 2003) (citing Pierce v.

       State, 761 N.E.2d 826, 830 (Ind. 2002)). These rules prohibit conviction and

       punishment “for an enhancement of a crime where the enhancement is imposed

       for the very same behavior or harm as another crime for which the defendant

       has been convicted and punished.” Richardson, 717 N.E.2d at 56 (Sullivan, J.,

       concurring). The court has explained that claims of multiple enhancements

       require statutory interpretation, and the crux of these cases revolves around

       what, if any, legislative direction has been given. Nicoson v. State, 938 N.E.2d




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 8 of 16
       660, 662-63 (Ind.2010). 3 In other words, multiple enhancements are

       permissible if the legislature clearly intends it to be so. See id.


[13]   Smith was convicted of robbery resulting in serious bodily injury. He argues

       that the “serious bodily injury element” of his offense “was caused by and as a

       direct result of use of a firearm” during the crime. Appellant’s Br. at 16.

       Accordingly, he maintains that the firearm sentence enhancement was imposed

       for “the very same behavior or harm” that supported his conviction for robbery

       resulting in serious bodily injury, and thus he claims that the sentence

       enhancement violates double jeopardy principles and must be set aside. Id.


[14]   Our supreme court’s decision in Nicoson is instructive here. In Nicoson, the

       defendant was convicted of criminal confinement as a class B felony because he

       was armed with a deadly weapon. Nicoson, 938 N.E.2d 660, 662-63. The trial

       court attached an additional fixed five-year term to his sentence pursuant to

       Indiana’s Firearm Enhancement Statute, Indiana Code Section 35-50-2-11,

       because the defendant “used” a firearm while committing his offense. Id. at

       661. That section provides that upon proof beyond a reasonable doubt “that




       3
         Another panel of this Court has specifically determined that firearm sentencing enhancements do not
       implicate double jeopardy. Specifically, the panel in Cooper v. State, 940 N.E.2d 1210 (Ind. Ct. App. 2011),
       trans. denied, noted that several jurisdictions have concluded that firearm sentencing enhancements similar to
       ours do not raise double jeopardy concerns because the enhancement is merely a cumulative punishment
       rather than a separate offense. Id. at 1215 (collecting cases). The Cooper panel agreed with those jurisdictions
       in recognizing that sentencing enhancements are not offenses for double jeopardy purposes. Id. at 1217.
       While we acknowledge the general principle that sentencing enhancements do not constitute separate
       offenses, controlling precedent of our supreme court directs that we must still consider whether the firearm
       sentencing enhancement, as applied here, runs afoul of Indiana’s supplemental prohibition “against double
       enhancements ‘absent explicit legislative direction.’” Nicoson, 938 N.E.2d at 663.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020                      Page 9 of 16
       the person knowingly or intentionally used a firearm in the commission of the

       offense under subsection (d), the court may sentence the person to an additional

       fixed term of imprisonment of between five (5) years and twenty (20) years.”

       Ind. Code § 35-50-2-11. The Nicoson court determined, among other things,

       that the use-of-a-firearm sentence enhancement did not run afoul of double

       jeopardy principles. Id. at 661, 662-63, 665.


[15]   In reaching that result, the court emphasized that


               [t]he “extra” five years about which Nicoson complains is not
               part of these provisions in the confinement statutes that authorize
               higher classes of felonies to be charged. Rather, it appears in the
               part of the Code on penalties. The section at issue authorizes an
               additional fixed sentence for the underlying offense where a
               firearm is used.


               ....


               Here, the State initially needed to prove only that Nicoson
               committed confinement while armed with a deadly weapon. Ind.
               Code § 35-42-3-3. To apply the additional fixed five-year term the
               statute requires the State to prove Nicoson “used” a firearm in
               commission of his offense. Ind. Code § 35-50-2-11. The record
               clearly reveals that Nicoson was not only armed with a deadly
               weapon, but that he used the firearm—firing into the air,
               ordering the victims from the vehicle with it, and firing at the
               victims’ vehicle as they drove away.


       Id. at 664, 665.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 10 of 16
[16]   As in Nicoson, the sentence enhancement about which Smith complains does

       not concern, in any way, an elevation of a statutory offense to a higher class of

       felony. The sentence enhancement that applies to Smith’s use of a firearm in

       the commission of his offense is embodied in the penalties provision of the

       Indiana Code in which the legislature has specifically provided a harsher

       penalty based on the use of a firearm. The legislature’s intent is clear that

       certain criminal offenses committed with firearms, including those felonies

       resulting in death or serious bodily injury, are to receive additional punishment.

       Ind. Code § 35-50-2-11(b)(1).


[17]   Moreover, Smith was charged with the crime of robbery as a level 2 felony. An

       individual commits that offense if he or she knowingly or intentionally takes

       property from another person or from the presence of another person by using

       or threatening the use of force on any person, or by putting any person in fear,

       and “it results in serious bodily injury to any person other than a defendant.”

       Ind. Code § 35-42-5-1. Proof of that offense did not require any showing that

       Smith used a weapon, and the jury was not required to determine that Smith

       used a firearm in the commission of the underlying offense.


[18]   In other words, Smith was convicted of a single offense, and only one sentence

       enhancement was imposed as a result of his use of the firearm in the

       commission of the crime. Thus, we are not concerned with multiple

       enhancements. Contrary to Smith’s suggestion, it is of no moment that his use

       of a firearm caused the serious bodily injury relied upon for both the underlying

       offense and the enhancement. If the legislature intended that offenses resulting

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 11 of 16
       in serious bodily injury alleged to have been committed with a firearm were to

       be excepted from the use-of-a-firearm sentence enhancement, it could have

       drafted the statute to reflect that intent. Instead, the legislature specifically

       included all felonies “under IC 35-42” that result in “serious bodily injury.”

       Ind. Code § 35-50-2-11. “[T]he inclusion of that requirement renders it

       virtually certain that the legislature would have foreseen that many of those

       injuries would be inflicted by the use of firearms.” Cooper v. State, 940 N.E.2d

       1210, 1217 (Ind. Ct. App. 2011), trans. denied. For the foregoing reasons, we

       conclude that no double jeopardy violation occurred, and we reject Smith’s

       contention that his sentence enhancement must be set aside.


        Section 3 – Smith had not met his burden to demonstrate that
                        his sentence is inappropriate.
[19]   Smith finally requests that we reduce his sentence pursuant to Indiana

       Appellate Rule 7(B), which provides that we may revise a sentence authorized

       by statute if, after due consideration of the trial court’s decision, we find that the

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

       of the offender.” The defendant bears the burden to persuade this Court that

       his or her sentence is inappropriate. Childress v. State, 848 N.E.2d 1073, 1080

       (Ind. 2006). 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 v. State, 895 N.E.2d

       1219, 1222 (Ind. 2008). The principal role of appellate review is to attempt to

       “leaven the outliers.” Id. at 1225. Whether we regard a sentence as

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 12 of 16
       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. “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.” Fonner v. State,

       876 N.E.2d 340, 344 (Ind. Ct. App. 2007).


[20]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). Smith was convicted

       of level 2 felony robbery resulting in serious bodily injury, and he was found to

       have knowingly or intentionally used a firearm during the commission of his

       offense. The sentencing range for a level 2 felony is between ten and thirty

       years, with an advisory sentence of seventeen and a half years. Ind. Code § 35-

       50-2-4.5. If a person knowingly or intentionally uses a firearm during the

       commission of certain offenses, the trial court may impose an additional fixed

       term of imprisonment between five and twenty years. Ind. Code § 35-50-2-11.

       The trial court here imposed a twenty-five-year sentence for Smith’s robbery

       conviction, enhanced by fifteen years for his use of a firearm, resulting in an

       aggregate sentence of forty years (thirty-five years executed and five years

       suspended to probation), which was well below the maximum fifty-year

       allowable sentence.


[21]   When reviewing the nature of the offense, this Court considers “the details and

       circumstances of the commission of the offense.” Washington v. State, 940
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 13 of 16
       N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. Smith urges that,

       although any robbery is a serious offense, the current robbery was not so

       egregious as to justify the sentence imposed. We disagree. There was evidence

       in the record that not only was Smith an active participant in pointing a loaded

       gun at a group of people, placing them in fear, and taking property, but he also

       planned and conspired to commit this crime in advance. Indeed, there was

       evidence to suggest that Smith was the mastermind of this drug heist gone

       horribly wrong. It is disingenuous to suggest that Smith was unaware that

       committing an armed robbery of a known drug dealer and his friends was not

       likely to result in an escalation of violence, namely, the serious bodily injury

       suffered by Firth. The details and circumstances of the commission of this

       offense do not persuade us that a sentence reduction is warranted.


[22]   Turning to Smith’s character, we note that the character of the offender is found

       in what we learn of his life and conduct. Croy v. State, 953 N.E.2d 660, 664

       (Ind. Ct. App. 2011). Included in that assessment is a review of an offender’s

       criminal history. Garcia v. State, 47 N.E.3d 1249, 1251 (Ind. Ct. App. 2015),

       trans. denied (2016). Smith has an extensive criminal history beginning as a

       juvenile offender when he committed grand theft in Florida. At the young age

       of thirty, he had already amassed multiple felony convictions (theft, auto theft,

       possession of methamphetamine, possession of marijuana with a prior

       conviction, burglary) and seven misdemeanor convictions. As noted by the trial

       court, Smith’s daily drug use (heroin, methamphetamine, painkillers) has

       unfortunately “led to a life of crime,” and despite numerous arrests,


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 14 of 16
       convictions, and opportunities at probation and rehabilitation, there has been

       “just no compliance anywhere.” Tr. Vol. 4 at 25. Smith has demonstrated utter

       “disdain for the court,” failing to appear before the court when ordered at least

       sixteen times, and he has just continued to do “whatever the heck [he] wanted.”

       Id. at 25-26. Indeed, Smith committed the current offense shortly after release

       on his own recognizance from the Benton County Jail, where he was being held

       on pending burglary and habitual offender charges. Nothing we have learned

       about Smith’s character persuades us that the sentence imposed by the trial

       court should be reduced. Smith has not met his burden to demonstrate that his

       sentence is inappropriate in light of the nature of his offense or his character.


         Section 4 – Remand is necessary for the trial court to correct
                           its sentencing order.
[23]   The State cross-appeals and asserts that remand is necessary for the trial court

       to correct its sentencing order. Specifically, the State points out that the order

       does not address the fact that Smith committed the instant offense while

       released on his own recognizance during the pendency of his Benton County

       case, cause number 04C01-1512-F4-229, and that pursuant to statute, the

       sentences imposed in both causes must be ordered to run consecutively.

       Indiana Code Section 35-50-1-2 provides in relevant part:


               (e) If, after being arrested for one (1) crime, a person commits
               another crime:

               (1) before the date the person is discharged from probation,
               parole, or a term of imprisonment imposed for the first crime; or


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020   Page 15 of 16
               (2) while the person is released:
                  (A) upon the person’s own recognizance; or
                  (B) on bond;

               the terms of imprisonment for the crimes shall be served
               consecutively, regardless of the order in which the crimes are
               tried and sentences are imposed.


[24]   The record indicates that Smith committed the current crime while released on

       his own recognizance from the Benton County Jail where he had been held on

       burglary charges. Accordingly, pursuant to statute, the terms of imprisonment

       for the current crime and his Benton County crime shall be served

       consecutively. 4 Therefore, we remand with instructions for the trial court to

       correct the sentencing order and abstract of judgment to reflect that the terms of

       imprisonment for the current conviction and the Benton County conviction

       shall be served consecutively. The trial court’s judgment of conviction and

       sentence is affirmed in all other respects.


[25]   Affirmed and remanded.


       Bailey, J., and Altice, J., concur.




       4
         At the time of sentencing, Smith had already been convicted of level 4 felony burglary and found to be a
       habitual offender in the Benton County cause, and was serving the imposed fourteen-year executed sentence
       in the Department of Correction.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-2039 | June 19, 2020                 Page 16 of 16
