MEMORANDUM DECISION
                                                                           FILED
Pursuant to Ind. Appellate Rule 65(D),
                                                                      May 14 2018, 11:11 am
this Memorandum Decision shall not be
regarded as precedent or cited before any                                  CLERK
                                                                       Indiana Supreme Court
court except for the purpose of establishing                              Court of Appeals
                                                                            and Tax Court
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
David W. Stone IV                                       Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General of Indiana
                                                        Chandra K. Hein
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

James Brady Helms,                                      May 14, 2018
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        48A02-1710-CR-2416
        v.                                              Appeal from the Madison Circuit
                                                        Court
State of Indiana,                                       The Honorable David A. Happe,
Appellee-Plaintiff                                      Judge
                                                        Trial Court Cause No.
                                                        48C04-1610-F6-2203



Baker, Judge.




Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018            Page 1 of 7
[1]   James Brady Helms appeals his conviction for Level 6 Felony Altering the

      Scene of a Death,1 arguing that the trial court erroneously excluded evidence.

      Helms also appeals his sentence, arguing that the trial court erred in finding

      aggravating factors and that the sentence is inappropriate in light of the nature

      of the offense and his character. Finding no error and that the sentence is not

      inappropriate, we affirm.


                                                    Facts
[2]   In October 2016, a dead body was discovered in rural Madison County. The

      body was later identified as Billy Emberton. Police learned that Emberton had

      been living at Helms’s residence in Summitville. Helms eventually admitted to

      the police that he had found Emberton dead in bed and that he wrapped

      Emberton up in a comforter and dumped his body in the woods. He also took

      Emberton’s drugs and hid them in his own bedroom.


[3]   On October 25, 2016, the State charged Helms with Level 6 felony altering the

      scene of a death and Level 6 felony obstruction of justice. Helms’s jury trial

      took place on August 22, 2017. At trial, Helms offered into evidence two

      handwritten notes that he claimed were a suicide note and a will that had been

      written by Emberton. The trial court excluded the documents because they

      were not properly authenticated. Following the trial, the jury found Helms

      guilty of altering the scene of a death and was unable to reach a verdict on the




      1
          Ind. Code § 36-2-14-17(b).


      Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018   Page 2 of 7
      obstruction of justice charge. On September 18, 2017, the trial court sentenced

      Helms to two and one-half years. Helms now appeals.


                                   Discussion and Decision
                                  I. Exclusion of Evidence
[4]   Helms first argues that the trial court should not have excluded the two

      handwritten notes from evidence. The admission or exclusion of evidence is

      within the trial court’s discretion, and we will reverse only if the trial court’s

      decision clearly contravenes the logic and effect of the facts and circumstances

      before it or if the trial court has misinterpreted the law. E.g., Bradford v. State,

      960 N.E.2d 871, 873 (Ind. Ct. App. 2012).


[5]   To lay a foundation for the admission of evidence, the proponent of the

      evidence must show that it has been authenticated. E.g., Pavlovich v. State, 6

      N.E.3d 969, 976 (Ind. Ct. App. 2014). To meet this requirement, the proponent

      must present sufficient evidence that the item is what the proponent claims it is.

      Ind. Evidence Rule 901(a). Absolute proof of authenticity is not required, but

      the proponent must establish a reasonable probability that the document is what

      it is claimed to be. Pavlovich, 6 N.E.3d at 976. Authenticity may be established

      by direct or circumstantial evidence. Id.


[6]   There are two documents at issue. Both are handwritten, neither is signed.

      Helms offered no evidence that Emberton wrote either document. Specifically,

      there is no evidence that he (or anyone else) observed Emberton writing the

      documents, that he was familiar with Emberton’s handwriting, or that a
      Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018   Page 3 of 7
      handwriting analysis had been done. Moreover, nothing in either document

      indicates the identity of the author, nor did anyone testify that the items in the

      purported will were items owned by Emberton.2 Under these circumstances,

      the trial court properly found that the documents were not authenticated and

      did not err by excluding them from evidence.


                                                II. Sentence

                                            A. Aggravators
[7]   Helms next argues that the trial court erred in the sentencing process.

      Specifically, he contends that the trial court found multiple improper

      aggravating factors. Under the advisory sentencing scheme, we may reverse if a

      trial court finds aggravators that are not supported by the record or are

      improper as a matter of law or omits mitigators that are clearly supported by the

      record and advanced for consideration. Anglemyer v. State, 868 N.E.2d 482,

      490-91 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218 (Ind. 2007).


[8]   First, Helms argues that the trial court erred by considering the suffering of

      Emberton’s family as an aggravator. It is apparent, however, that the trial court

      did not consider this to be an aggravating factor, but was instead commenting

      on the nature of Helms’s offense—which it did not, in the end, find as an

      aggravator. Instead, the trial court found Helms’s criminal history and his



      2
       There was some evidence that one reference in the purported will related to items belonging to Emberton,
      but the testimony was not definitive and was limited to one small portion of the document. Tr. Vol. II p.
      240.

      Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018             Page 4 of 7
       arrest on new offenses while on pretrial release for the instant charges as the

       sole aggravating factors. Tr. Vol. II p. 75-76; Appellant’s App. Vol. II p. 12.

       Therefore, we find no error with respect to the trial court’s comments regarding

       Emberton’s family.


[9]    Second, Helms argues that the trial court should not have found his criminal

       history to be an aggravating factor because he “had gone several years without

       any criminal charges.” Appellant’s Br. p. 15. Given that a defendant’s criminal

       history is undisputedly a proper aggravating factor, this amounts to an

       argument that the trial court placed too much weight on this factor—which is

       an argument we may not address. Anglemyer, 868 N.E.2d at 490-91.


[10]   Third, Helms argues that the trial court should not have considered his arrest on

       new charges as an aggravator. The trial court may consider arrests and pending

       charges in the context of evaluating the character of a defendant and

       determining the risk that he will reoffend. E.g., Vermillion v. State, 978 N.E.2d

       459, 468 (Ind. Ct. App. 2012). Therefore, the fact that Helms had new charges

       pending at the time of sentencing could properly be considered insofar as it

       relates to his character and propensity for future criminal conduct. Id. We find

       no error in the trial court’s sentencing statement.


                                        B. Appropriateness
[11]   Finally, Helms argues that the sentence imposed by the trial court is

       inappropriate in light of the nature of the offense and his character pursuant to

       Indiana Appellate Rule 7(B). In considering an argument under Rule 7(B), we

       Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018   Page 5 of 7
       must “conduct [this] review with substantial deference and give ‘due

       consideration’ to the trial court’s decision—since the ‘principal role of [our]

       review is to attempt to leaven the outliers,’ and not to achieve a perceived

       ‘correct’ sentence . . . .” Knapp v. State, 9 N.E.3d 1274, 1292 (Ind. 2014)

       (quoting Chambers v. State, 989 N.E.2d 1257, 1259 (Ind. 2013)) (internal

       citations omitted).


[12]   Helms was convicted of one count of a Level 6 felony. For this conviction, he

       faced a sentence of six months to two and one-half years imprisonment, with an

       advisory term of one year. I.C. § 35-50-2-7(b). The trial court imposed the

       maximum term of two and one-half years.


[13]   As for the nature of his offense, Helms found his friend and roommate dead.

       Rather than call the police, he hauled the body to the countryside and dumped

       it in the woods like garbage. He took his dead friend’s drugs and hid them in

       his own bedroom. Helms likely moved the body because he did not want the

       police to investigate in the house and discover his own substantial drug dealing

       operation. Showing little genuine remorse, Helms commented to the probation

       officer preparing the presentence investigation report that dumping the body in

       the woods was “not the worst thing I could have done.” Appellant’s App. Vol.

       II p. 98.


[14]   As for Helms’s character, he has many criminal convictions dating back to the

       age of nineteen, including four prior felony convictions. He has violated

       probation and community corrections multiple times. While these charges


       Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018   Page 6 of 7
       were pending, he was arrested on multiple charges related to dealing and

       possessing methamphetamine and other illicit substances.


[15]   Having considered the nature of the offense and Helms’s character, we find that

       the sentence imposed by the trial court is not inappropriate.


[16]   The judgment of the trial court is affirmed.


       Kirsch, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 48A02-1710-CR-2416 | May 14, 2018   Page 7 of 7
