                                                                                  FILED
                                                                            Mar 13 2018, 7:00 am

                                                                                  CLERK
                                                                             Indiana Supreme Court
                                                                                Court of Appeals
                                                                                  and Tax Court




      ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
      Matthew J. McGovern                                       Curtis T. Hill, Jr.
      Anderson, Indiana                                         Attorney General of Indiana

                                                                Katherine Cooper
                                                                Deputy Attorney General
                                                                Indianapolis, Indiana


                                                  IN THE
          COURT OF APPEALS OF INDIANA

      Michael Damien Howell,                                    March 13, 2018
      Appellant-Defendant,                                      Court of Appeals Case No.
                                                                82A05-1707-CR-1474
              v.                                                Appeal from the Vanderburgh
                                                                Superior Court
      State of Indiana,                                         The Honorable Robert J. Pigman,
      Appellee-Plaintiff                                        Judge
                                                                Trial Court Cause No.
                                                                82D03-1604-MR-2081



      Crone, Judge.


                                              Case Summary
[1]   Michael Damien Howell was convicted of level 2 felony voluntary

      manslaughter, level 6 felony criminal recklessness while armed with a deadly

      weapon, level 3 felony attempted robbery while armed with a deadly weapon,


      Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                      Page 1 of 33
      and level 6 felony auto theft. On appeal, he contends that his voluntary

      manslaughter conviction must be reversed because an allegedly erroneous jury

      instruction resulted in fundamental error. He also argues that his convictions

      for criminal recklessness and attempted robbery violate double jeopardy

      principles and requests that we vacate his criminal recklessness conviction.


[2]   In addition, Howell raises three challenges to his fifty-seven-year aggregate

      sentence. He argues that the trial court improperly enhanced his sentence for

      voluntary manslaughter for using a firearm in the commission of the offense.

      He also asserts that the trial court abused its discretion in sentencing him by

      finding improper aggravating factors. Finally, he argues that his sentence is

      inappropriate based on the nature of the offenses and his character.


[3]   We conclude that the jury instructions as a whole did not mislead the jury, and

      therefore we affirm his voluntary manslaughter conviction. However, we

      conclude that his criminal recklessness conviction and his attempted robbery

      conviction run afoul of the constitutional protection against double jeopardy,

      and therefore we remand with instructions to vacate his criminal recklessness

      conviction. As for his sentencing challenges, we conclude that the trial court

      did not err in enhancing his voluntary manslaughter sentence and did not abuse

      its discretion in finding aggravating factors, and we conclude that he has failed

      to carry his burden to show that his sentence is inappropriate. Therefore, we

      affirm Howell’s sentence.




      Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 2 of 33
                                  Facts and Procedural History
[4]   In February 2016, Howell and his wife, with whom he has two children,

      separated. While Howell was staying with a friend, he was introduced to

      Beverly Karns. Howell moved in with her. Other individuals also lived with

      Karns including Brandon Davis and Abigail Autry. Howell and Karns used

      marijuana and methamphetamine together. While Howell lived with Karns,

      her drug use increased and she became paranoid that someone was stealing

      from her. Karns sometimes carried a gun in her purse. She owned a .38

      Special revolver and a .22 rifle. Howell went with Karns to buy a .45 caliber

      handgun. Karns also bought a 9-millimeter handgun. Howell and Karns

      practiced shooting together. Karns began making romantic advances toward

      Howell, but he was not interested.


[5]   In early April 2016, Karns and Howell were in her kitchen when she

      accidentally fired one of her guns in Howell’s direction. After that, Howell

      moved out of Karns’s residence and stayed at a hotel. In the hotel parking lot,

      while in a vehicle with his wife and children, Howell had a confrontation with

      Karns, Davis, and Autry, during which Karns accused Howell of stealing her

      property. During the confrontation, Autry pointed a gun at Howell and

      demanded that he open his trunk, Karns pointed a gun at Howell’s wife, and

      Howell pointed a gun at Davis. Eventually, Davis persuaded Karns and Autry

      to back off, and Howell drove away. Later Karns called Howell to apologize.


[6]   In the early morning hours of April 9, 2016, Howell was staying with Coty

      Clark and his wife in Vanderburgh County. Karns came to Clark’s house, and
      Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 3 of 33
      she and Howell talked and used drugs. Karns left and returned to Clark’s home

      around 8:00 or 9:00 a.m. with some of Howell’s belongings. Karns told Howell

      that she wanted him to move back in with her and expressed her desire to have

      a romantic relationship with him. Howell told her that he was not interested

      and that he never wanted to see her again. Karns became angry, and she and

      Howell argued in the middle of the living room. At some point, Karns started

      going through her purse. Howell saw her pull something out of her purse that

      flashed like it was chrome, and he heard a clinking noise of metal on metal. He

      thought that she was going to pull a gun on him, and he was frightened. He

      pulled his gun from his waistband and shot Karns in the head. Tr. Vol. 3 at

      175-76. Karns fell to the floor, and Howell saw that she had an e-cigarette and

      not a weapon. Howell “freaked out.” Id. at 179. Karns died because of the

      gunshot wound.


[7]   Clark was home at the time, and Howell’s father had come to visit Howell.

      Howell’s father drove Karns’s truck to the back of Clark’s house, and he and

      Clark loaded Karns into the back of her truck. Howell gave his father a hug

      and removed his wedding band and gave it to his father. Howell’s father told

      Howell to wait a minute while he pulled his car around and they would figure

      out what to do. By the time Howell’s father retrieved his car and drove it to the

      back of the house, Howell had taken Karns’s truck and left.


[8]   While driving in Warrick County, Howell lost control of the truck. It flipped

      and landed in a ditch. Howell’s head was injured, and he was still under the



      Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 4 of 33
       influence of methamphetamine and marijuana. He got out of the truck,

       grabbed some stuff, and ran from the scene into a wooded area.


[9]    A witness saw Howell flip the truck and land in the ditch, and she called 911.

       While she talked to the dispatcher, she saw Howell get out of the truck, grab

       some stuff, and run up the hill and into the woods. She went to the accident

       site to see if anyone else was hurt, and she found Karns’s body wrapped in a

       carpet in the truck’s camper shell, which had come off when the truck flipped.


[10]   While still in Warrick County, Howell came out of the woods as Charles Scales

       was backing his truck out of a driveway. A witness noticed Howell standing by

       Scales’s truck. She observed Scales briefly pause from backing out and Howell

       reach for the back door of Scales’s truck. She saw Howell pull a gun and start

       firing at Scales. Scales quickly resumed backing out. Howell fired at Scales five

       times. One of the bullets hit Scales’s leg, but he was able to drive away.1 The

       witness ran to get her phone and call 911. Meanwhile, Howell noticed a Ford

       Explorer, saw that the keys were in the ignition, and drove it away.


[11]   Law enforcement in multiple counties were dispatched, the Explorer was

       located, and a car chase ensued. Eventually, Howell pulled over somewhere in

       Dubois County and surrendered to police. In Vanderburgh County, the State

       charged Howell with the murder of Karns and sought a sentencing

       enhancement for his use of a firearm in the commission of the offense. The




       1
           Scales survived the encounter but died before trial from unrelated causes.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018        Page 5 of 33
       State also charged Howell with level 1 felony attempted murder of Scales, level

       3 felony attempted robbery of Scales while armed with a deadly weapon, and

       level 6 felony auto theft. Howell filed a motion to dismiss the counts for the

       offenses that were committed in Warrick County. The trial court denied his

       motion to dismiss, finding that his Warrick County offenses for purposes of

       venue and/or joinder2 were “part of the series of events that constituted the

       commission” of the offenses committed in Vanderburgh County. Appellant’s

       App. Vol. 2 at 44.


[12]   A jury found Howell guilty of level 2 felony voluntary manslaughter of Karns

       as a lesser-included offense of murder, guilty of level 6 felony criminal

       recklessness as a lesser-included offense of attempted murder of Scales, and

       guilty of attempted robbery and auto theft as charged. Howell admitted to

       using a firearm in the commission of voluntary manslaughter.


[13]   In sentencing Howell, the trial court found the following aggravating factors:

       Scales was injured and was over sixty-five years old; Howell’s history of

       substance abuse; Howell’s continued abuse of drugs after completing a forensic

       diversion program; children were present when he committed voluntary

       manslaughter; his attempted disposal of Karns’s body; and police were forced to

       engage in a high-speed chase before Howell eventually surrendered. Id. at 187-

       88. The trial court found no mitigating circumstances. The trial court




       2
         The specific basis for Howell’s motion to dismiss is uncertain because neither his motion to dismiss nor the
       supporting and opposing authorities the parties submitted to the trial court are in the record.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                         Page 6 of 33
       sentenced Howell as follows: twenty-five years for his voluntary manslaughter

       conviction, plus fifteen years for using a firearm in its commission; two years

       for his criminal recklessness conviction and fifteen years for his attempted

       robbery conviction, to be served concurrent to each other but consecutive to his

       sentence for voluntary manslaughter; and two years for his auto theft

       conviction, to be served consecutive to the other counts, for an aggregate

       sentence of fifty-seven years. This appeal ensued. Additional facts will be

       provided as necessary.


                                        Discussion and Decision

           Section 1 – The jury instruction on voluntary manslaughter
                       did not result in fundamental error.
[14]   Howell contends that his conviction for voluntary manslaughter, the lesser-

       included offense of his murder charge, must be reversed because the trial court

       erred in giving Final Instruction 9 (“Instruction 9”),3 which addressed lesser-

       included offenses as follows:

                If you find that the State has failed to prove any one of the essential
                elements of the charged crimes of Murder and Attempted Murder, you
                should then decide whether the State has proved beyond a
                reasonable doubt all elements of the included crimes of Voluntary
                Manslaughter and Criminal Recklessness which have been defined
                for you.




       3
         Although Howell was charged with the attempted murder of Scales and was found guilty of the lesser-
       included offense of criminal recklessness, he does not challenge his criminal recklessness conviction on this
       basis.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                          Page 7 of 33
               If the State failed to prove each of the essential elements of the
               included crime beyond a reasonable doubt, the defendant should
               be found not guilty. If the State did prove each of the elements of
               the included crime beyond a reasonable doubt, you should find
               the defendant guilty of the lesser included crime. You must
               resolve reasonable doubt in favor of the accused downward from
               the specific crime charged through the included offenses. You
               may not find the defendant guilty of more than one of the
               offenses. Where there is a reasonable doubt existing in your
               minds as to which degree of an offense the defendant may be
               guilty of, he must be convicted of the lower degree only. If there
               is reasonable doubt as to all, then you must find the defendant
               not guilty.


       Id. at 92 (emphases added).


[15]   In reviewing Howell’s contention, we observe that


               [t]he manner of instructing a jury is left to the sound discretion of
               the trial court. We will not reverse the trial court’s ruling unless
               the instructional error is such that the charge to the jury misstates
               the law or otherwise misleads the jury. Jury instructions must be
               considered as a whole and in reference to each other, and even
               an erroneous instruction will not constitute reversible error if the
               instructions, taken as a whole, do not misstate the law or
               otherwise mislead the jury.


       Quiroz v. State, 963 N.E.2d 37, 41 (Ind. Ct. App. 2012) (citations omitted).


[16]   Howell acknowledges that he failed to object to Instruction 9, and thus seeks to

       win reversal by claiming that it constitutes fundamental error. See Knapp v.

       State, 9 N.E.3d 1274, 1281 (Ind. 2014) (“Failure to object at trial waives an




       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 8 of 33
       issue on appeal unless the appellant can show fundamental error.”). The

       fundamental error exception to the contemporaneous objection rule is


               extremely narrow, and applies only when the error constitutes a
               blatant violation of basic principles, the harm or potential for
               harm is substantial, and the resulting error denies the defendant
               fundamental due process. The error claimed must either make a
               fair trial impossible or constitute clearly blatant violations of
               basic and elementary principles of due process. This exception is
               available only in egregious circumstances.


       Brown v. State, 929 N.E.2d 204, 207 (Ind. 2010) (citations and quotation marks

       omitted).


[17]   Specifically, Howell contends that Instruction 9 erroneously instructs the jury

       that it “should” decide whether he was guilty of the lesser-included offense of

       voluntary manslaughter “[i]f you find that the State has failed to prove any one

       of the essential elements of the charged crime[] of Murder.” Appellant’s App.

       Vol. 2 at 92. Generally, conviction of a lesser-included offense must be

       supported by proof of some, but not all, of the elements of the charged crime.

       Coy v. State, 999 N.E.2d 937, 943 (Ind. Ct. App. 2013). However, voluntary

       manslaughter is different.


[18]   Indiana Code Section 35-42-1-3 defines voluntary manslaughter as follows:


               (a) A person who knowingly or intentionally:


                        (1) kills another human being;



       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 9 of 33
                         ...


                         while acting under sudden heat commits voluntary
                         manslaughter, a Level 2 felony.


                (b) The existence of sudden heat is a mitigating factor that reduces
                what otherwise would be murder under section 1(1) of this
                chapter to voluntary manslaughter.


       (Emphasis added.)


[19]   “Voluntary manslaughter is a lesser included offense of murder, distinguishable

       by the factor of a defendant having killed, while acting under sudden heat.”4

       Evans v. State, 727 N.E.2d 1072, 1077 (Ind. 2000). To obtain a conviction for

       voluntary manslaughter, the State must prove all the elements of murder and

       disprove the existence of sudden heat if the defendant places sudden heat in

       issue. Id.; see also Dearman v. State, 743 N.E.2d 757, 761 (Ind. 2001) (“[T]he

       defendant bears no burden of proof with respect to sudden heat, but only bears

       the burden of placing the issue in question where the State’s evidence has not

       done so.”). Here, Instruction 9 incorrectly stated that if the State did not prove

       all the elements of murder, the jury should then decide whether Howell

       committed voluntary manslaughter. Nevertheless, we reject Howell’s

       contention that Instruction 9 made a fair trial impossible.



       4
         To establish sudden heat, the defendant must show “sufficient provocation to engender ... passion.”
       Johnson v. State, 518 N.E.2d 1073, 1077 (Ind. 1988). Sufficient provocation is demonstrated by “such
       emotions as anger, rage, sudden resentment, or terror [that are] sufficient to obscure the reason of an ordinary
       person, prevent deliberation and premeditation, and render the defendant incapable of cool reflection.” Id.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                         Page 10 of 33
[20]   As previously mentioned, “an erroneous instruction will not constitute

       reversible error if the instructions, taken as a whole, do not misstate the law or

       otherwise mislead the jury.” Quiroz, 963 N.E.2d at 41. Here, the trial court

       also provided Final Instruction Number 3 (“Instruction 3”), which provided,


               The crime of murder is defined by law as follows:


               A person who knowingly or intentionally kills another human
               being, commits murder a felony.


               Included in the charge in this case is the crime of voluntary
               manslaughter, which is defined by law as follows:


               A person who knowingly or intentionally kills another human
               being while acting under sudden heat commits voluntary
               manslaughter, a Level 2 Felony.


               Sudden heat is a mitigating factor that reduces what otherwise
               would be murder to voluntary manslaughter. The State has the
               burden of proving beyond a reasonable doubt that the Defendant
               was not acting under sudden heat.


               Before you may convict [Howell] on Count 1 [(murder of Karns)]
               the State must have proved each of the following beyond a
               reasonable doubt:


               1. [Howell]


               2. Knowingly or intentionally


               3. Killed


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 11 of 33
                4. Beverly Karns


                5. And [Howell] was not acting under sudden heat.


                If the State failed to prove each of the elements 1 through 4
                beyond a reasonable doubt, you must find the Defendant not
                guilty of murder as charged in Count 1.


                If the State did prove each of the elements 1 through 4 beyond a
                reasonable doubt, but the State failed to prove beyond a
                reasonable doubt element 5[5] you may find the Defendant guilty
                of voluntary manslaughter, a Level 2 Felony, a lesser included
                offense of Count 1.


                If the State did prove each of the elements 1 through 5 beyond a
                reasonable doubt, you may find the Defendant guilty of murder,
                a Felony, as charged in Count 1.


       Appellant’s App. Vol. 2 at 85.


[21]   Howell concedes that Instruction 3 correctly states the law, but argues that it

       did not cure Instruction 9, citing Roberson v. State, 982 N.E.2d 452 (Ind. Ct.

       App. 2013). However, Roberson does not support Howell’s argument. In that

       case, the issue was whether Roberson’s trial counsel provided ineffective

       assistance in failing to object to jury instructions. The Roberson court concluded

       that the trial court erroneously instructed the jury that “[i]f the State proves



       5
        To be clear, although Instruction 3 refers to “element 5”, the existence of sudden heat is a mitigating factor,
       not an element. Brantley v. State, No. 18S-CR-98, 2018 WL 915130, at *6 (Ind. Feb. 16, 2018). “However,
       once a defendant places sudden heat into issue, the State then bears the burden of negating the presence of
       sudden heat beyond a reasonable doubt.” Evans, 727 N.E.2d at 1077.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                         Page 12 of 33
       [Roberson] guilty of Murder, you must not consider the included crimes.” Id. at

       458 (citation omitted). In addition, the jury received another instruction, which

       likewise provided, “If you find that [Roberson] is not guilty of the crime of

       Murder ..., you may then consider whether [Roberson] is guilty of the included

       offense of Voluntary Manslaughter....” Id. at 460 (citation omitted). The

       Roberson court observed that “the jury instructions as a whole indicated to the

       jury that it could only consider convicting Roberson of voluntary manslaughter

       if it first found him not guilty of murder.” Id. (emphasis added). The Roberson

       court concluded that trial counsel’s failure to object to the jury instructions

       constituted ineffective assistance. Id. at 461.


[22]   Here, Instruction 3 correctly informed the jury of the definitions of murder and

       voluntary manslaughter, that sudden heat is a mitigating factor that reduces

       murder to voluntary manslaughter, and that the State had the burden of proving

       that Howell was not acting under sudden heat, and Instruction 3 laid out

       specifically the circumstances under which the jury was required to find him not

       guilty of murder, guilty of voluntary manslaughter, or guilty of murder based on

       the State’s success or failure to prove the required elements. Therefore, the

       instructions taken as a whole did not mislead the jury. As such, Instruction 9

       did not result in reversible error, let alone fundamental error. Therefore, we

       affirm Howell’s voluntary manslaughter conviction.




       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 13 of 33
         Section 2 – Howell’s convictions for attempted robbery and
           criminal recklessness violate the Indiana Constitution’s
                          double jeopardy provision.
[23]   Howell asserts that his convictions for both attempted robbery with a deadly

       weapon and criminal recklessness while armed with a deadly weapon violate

       the Indiana Constitution’s prohibition against double jeopardy and requests that

       we vacate his criminal recklessness conviction. “Questions of double jeopardy

       implicate fundamental rights and, as such, may be raised for the first time on

       appeal, or even by this court sua sponte. Whether convictions violate double

       jeopardy is a pure question of law, which we review de novo.” Street v. State, 30

       N.E.3d 41, 46 (Ind. Ct. App. 2015), trans. denied. The Indiana Constitution

       provides, “No person shall be put in jeopardy twice for the same offense.” IND.

       CONST. art. 1, § 14. “Indiana’s Double Jeopardy Clause ... prevent[s] 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). “[T]wo or

       more offenses are the ‘same offense’ in violation of Article I, Section 14 of the

       Indiana Constitution, 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.


[24]   Howell’s double jeopardy challenge is based on the actual evidence used to

       convict him. Under the “actual evidence” test, the actual evidence presented at

       trial is examined to determine whether each challenged offense was established


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 14 of 33
       by separate and distinct facts. Id. at 53. To show that two challenged offenses

       constitute the “same offense” in a claim of double jeopardy, a defendant must

       demonstrate a reasonable possibility that the evidentiary facts used by the fact-

       finder to establish the essential elements of one offense may also have been used

       to establish all the essential elements of a second challenged offense. Spivey v.

       State, 761 N.E.2d 831, 833 (Ind. 2002). Our supreme court has explained,


               [A] reasonable possibility that the jury used the same facts to
               reach two convictions requires substantially more than a logical
               possibility. The reasonable possibility standard fairly implements
               the protections of the Indiana Double Jeopardy Clause and also
               permits convictions for multiple offenses committed in a
               protracted criminal episode when the case is prosecuted in a
               manner that insures that multiple guilty verdicts are not based on
               the same evidentiary facts. The existence of a reasonable
               possibility turns on a practical assessment of whether the fact
               finder may have latched on to exactly the same facts for both
               convictions. We evaluate the evidence from the jury’s perspective
               and may consider the charging information, jury instructions,
               and arguments of counsel


       Garrett v. State, 992 N.E.2d 710, 720 (Ind. 2013) (citations, quotation marks,

       and brackets omitted).


[25]   To convict Howell of level 3 felony attempted robbery while armed with a

       deadly weapon, the State was required to prove that he knowingly or

       intentionally engaged in conduct that constituted a substantial step toward taking

       property from Scales or from the presence of Scales by using or threatening the




       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 15 of 33
       use of force on Scales while armed with a deadly weapon.6 Ind. Code §§ 35-42-

       5-1 (robbery) and 35-41-5-1 (attempt). To convict Howell of level 6 felony

       criminal recklessness while armed with a deadly weapon, the State was required

       to prove that he recklessly, knowingly, or intentionally performed an act that

       created a substantial risk of bodily injury to Scales while armed with a deadly

       weapon. Ind. Code § 35-42-2-2. Specifically, Howell asserts that the actual

       evidence that established the substantial step for the attempted robbery charge is

       the same evidence that established that he performed an act that created a

       substantial risk of bodily injury to Scales, namely the evidence that he

       discharged a firearm into a vehicle occupied by Scales and/or in his direction.

       We agree.


[26]   A comparison of the charging informations and the jury instructions supports

       Howell’s assertion. In charging Howell with attempted robbery with a deadly

       weapon, the State alleged that Howell “engag[ed] in conduct that constituted a

       substantial step toward the commission of the crime of Robbery, by knowingly or

       intentionally attempting to take the property of [Scales] from or from the

       presence of [Scales], by discharging a firearm into a vehicle occupied by [Scales]

       and/or in the direction of [Scales].” Appellant’s App. Vol. 2 at 54 (emphases

       added). The State did not charge Howell with criminal recklessness, but

       because the jury convicted Howell of criminal recklessness as a lesser-included




       6
        Robbery is a level 5 felony and is raised to a level 3 felony if it is committed while armed with a deadly
       weapon or results in bodily injury to any person other than a defendant. Ind. Code § 35-42-5-1(b).

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                         Page 16 of 33
       offense of attempted murder, we consider the charging information for

       attempted murder. In the charging information, the State alleged that Howell

       “knowingly or intentionally discharg[ed] a firearm into a vehicle occupied by [Scales]

       and/or in the direction of [Scales] with the intent to kill, which conduct constituted

       a substantial step toward the commission of said crime of Murder.” Id. at 38

       (emphases added). Similarly, the jury was instructed that to convict Howell of

       attempted murder, the State must have proved that he, acting with the specific

       intent to kill Scales, “[d]id knowingly or intentionally discharge a firearm into a

       vehicle occupied by [Scales] and/or in the direction of [Scales] with the intent to kill[,]

       which [] conduct constituted a substantial step toward the commission of the

       intended crime of killing [Scales].” Id. at 86 (emphases added). Therefore, the

       charging information for attempted robbery, the charging information for

       attempted murder, and the jury instruction for attempted murder are based on

       Howell’s conduct of discharging a firearm.7


[27]   Turning to closing argument, we note that the prosecutor told the jury that she

       would address the attempted robbery charge and the attempted murder charge

       “together.” Tr. Vol. 4 at 131. The prosecutor argued,


                [Howell] had already driven [Karns’s] vehicle, had a wreck, took
                off running to continue his escape and now he needed another
                vehicle and [Scales] was in the way of him taking off in [Scales’s]



       7
         The jury instruction for attempted robbery did not specify what conduct constituted the substantial step.
       That instruction advised the jury that to convict Howell of attempted robbery, the State must have proved
       that he knowingly or intentionally engaged in conduct constituting a substantial step toward committing
       robbery while armed with a deadly weapon. Appellant’s App. Vol. 2 at 88.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                        Page 17 of 33
               truck. [Howell] admitted to shooting [] Scales because he got
               angry. He shot five rounds at [Scales] and [Scales] was lucky that
               only one of those rounds struck him. [Howell] wanted that truck
               to continue his escape and [Scales] was in the way and he had to
               shoot at [Scales] so that he could get that truck.


       Id. at 132. Thus, consistent with the charging informations and jury instruction,

       closing argument reflects that the substantial step to support both attempted

       robbery and attempted murder was based on Howell’s discharging a firearm

       into a vehicle while Scales was in it and/or in Scales’s direction.


[28]   Howell’s conviction for criminal recklessness, as a lesser-included offense, was

       based on the charging information and jury instructions for attempted murder.

       The jury was instructed that “[i]f you find that the State failed to prove any one

       of the essential elements of the charged crime of Attempted Murder as set out in

       this count you should then decide whether the State has proved beyond a

       reasonable doubt all elements of the included crime of Criminal Recklessness.”

       Appellant’s App. Vol. 2 at 86. To convict Howell of criminal recklessness, the

       jury was instructed that the State was required to prove that he recklessly,

       knowingly, or intentionally “[p]erform[ed] an act that created a substantial risk

       of bodily injury to Scales” while armed with a deadly weapon. Id. at 87.

       Because the criminal recklessness conviction was based on the charges and jury

       instructions for the attempted murder charge, the act that created a substantial

       risk of bodily injury to Scales refers to Howell’s conduct in discharging a

       firearm into a vehicle occupied by Scales and/or in the direction of Scales.




       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 18 of 33
       That is the same conduct that constitutes the substantial step that supports

       Howell’s attempted robbery conviction.


[29]   The State argues that the crimes of attempted robbery and criminal recklessness

       each include


               evidence or facts not essential to the other. The attempted taking
               of property from Scales supports the attempted robbery, but is not
               [an] element of the other crime. Further, in order to convict
               Howell of criminal recklessness, the jury had to find that he
               performed an act that created a substantial risk of bodily injury to
               Scales, which it did not need to find in order to convict Howell of
               attempted robbery.


       Appellee’s Br. at 17. But the State’s argument merely echoes the obvious point

       that the statutory elements of the two crimes are different. The State fails to

       discuss the actual evidence that the jury might have reasonably relied on to

       decide that the State proved these statutory elements. We conclude that based

       on the charging informations, jury instructions, and closing arguments, there is

       a reasonable possibility that the evidentiary facts used to establish that Howell

       took a substantial step toward committing robbery may also have been used to

       establish that Howell performed an act that created a substantial risk of bodily

       injury to Scales. See Stewart v. State, 866 N.E.2d 858, 864-65 (Ind. Ct. App.

       2007) (concluding that there was reasonable possibility that trial court used the

       same evidence—Stewart fired at or into occupied vehicle—to establish all

       elements of both attempted battery and criminal recklessness): Rutherford v.

       State, 866 N.E.2d 867, 871 (Ind. Ct. App. 2007) (same); but see Lee v. State, 892


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 19 of 33
       N.E.2d 1231, 1237 (Ind. 2008) (concluding that convictions of burglary and

       attempted armed robbery did not violate double jeopardy where there was

       distinct evidence that Lee barged into a residence to support the burglary

       conviction and evidence that he made threats to establish the substantial step of

       attempted armed robbery). Accordingly, Howell’s convictions for attempted

       robbery and criminal recklessness violate the prohibition against double

       jeopardy.


[30]   “When two convictions are found to contravene double jeopardy principles, a

       reviewing court may remedy the violation by reducing either conviction to a

       less serious form of the same offense if doing so will eliminate the violation. If

       it will not, one of the convictions must be vacated.” Richardson, 717 N.E.2d at

       54 (citation omitted). Here, even if we reduced the attempted robbery to a level

       5 felony, the substantial step element, and thus the double jeopardy violation,

       would remain. Therefore, because the violation cannot be eliminated by

       reducing either conviction to a less serious form of the same offense, we remand

       with instructions to vacate Howell’s conviction for criminal recklessness.


        Section 3 – The trial court did not err in enhancing Howell’s
        sentence for voluntary manslaughter pursuant to the Firearm
                            Enhancement Statute.
[31]   Howell argues that the trial court improperly applied Indiana Code Section 35-

       50-2-11 (“the Firearm Enhancement Statute”) to enhance his sentence for

       voluntary manslaughter for using a firearm in the commission of the offense.

       His argument raises a question of statutory interpretation.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 20 of 33
               When interpreting a statute, our primary goal is to fulfill the
               legislature’s intent. [T]he best evidence of that intent is the
               statute’s language. If that language is clear and unambiguous,
               we simply apply its plain and ordinary meaning, heeding both
               what it does say and what it does not say.


       Day v. State, 57 N.E.3d 809, 812 (Ind. 2016) (citations and quotation marks

       omitted).


[32]   The Firearm Enhancement Statute provides as follows:


               (b) As used in this section, “offense” means:


                        (1) a felony under IC 35-42 that resulted in death or
                        serious bodily injury;


                        (2) kidnapping; or


                        (3) criminal confinement as a Level 2 or Level 3 felony.


               ….


               (d) The state may seek, on a page separate from the rest of a
               charging instrument, to have a person who allegedly committed
               an offense sentenced to an additional fixed term of imprisonment
               if the state can show beyond a reasonable doubt that the person
               knowingly or intentionally used a firearm in the commission of
               the offense.


               ….


               (g) If the jury (if the hearing is by jury) or the court (if the hearing
               is to the court alone) finds that the state has proved beyond a
       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018     Page 21 of 33
               reasonable doubt that 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.


               ….


               (i) A person may not be sentenced under subsections (g) and (h)[8] for
               offenses, felonies, and misdemeanors comprising a single episode of
               criminal conduct.


       (Emphasis added).


[33]   Howell does not dispute that his voluntary manslaughter conviction qualifies as

       an “offense” for purposes of the Firearm Enhancement Statute pursuant to

       subsection (b). However, he argues that pursuant to subsection (i), the statute

       cannot be applied to him because his offenses constitute a single episode of

       criminal conduct. According to Howell, his sentence for voluntary

       manslaughter may not be enhanced because that offense and his offenses for

       attempted robbery and auto theft comprise a single episode of criminal conduct.

       Howell interprets subsection (i) to bar a sentencing enhancement for an offense

       when that offense was committed with other offenses comprising a single

       episode of criminal conduct. We disagree.




       8
        Subsection (h) deals with pointing and discharging a firearm in the commission of felonies and
       misdemeanors against police officers.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                         Page 22 of 33
[34]   By its plain language, subsection (i) states that a person may not be sentenced

       under subsection (g) for offenses—plural—comprising a single episode of

       criminal conduct. Thus, subsection (i) prohibits a trial court from imposing a

       sentence enhancement on more than one conviction where a defendant is

       convicted of multiple offenses comprising a single episode of criminal conduct,

       even if more than one of the offenses would otherwise be eligible for a

       sentencing enhancement. To read subsection (i) as Howell suggests would lead

       to the absurd result that a person who was convicted of committing a single

       qualifying offense, say voluntary manslaughter, would be subject to a

       sentencing enhancement, but a person who committed voluntary manslaughter

       as part of an episode of criminal conduct could not be subject to a sentencing

       enhancement. Accordingly, we conclude that subsection (i) simply means that

       not more than one offense in a single episode of criminal conduct is subject to

       the sentencing enhancement. Thus, even if Howell’s offenses can be said to

       comprise a single episode of criminal conduct, the Firearm Enhancement

       Statute permits a sentencing enhancement of one of his offenses (as long as that

       offense meets the definition provided in subsection (b), and as noted, there is no

       dispute that voluntary manslaughter qualifies).


[35]   That said, even if we were to accept Howell’s interpretation of subsection (i),

       we are unpersuaded by his argument that his offenses constitute a single episode

       of criminal conduct. He claims that the trial court has already found that his

       offenses comprise a single episode of criminal conduct because in denying his

       motion to dismiss the offenses committed in Warrick County, the trial court


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 23 of 33
       found that his Warrick County offenses were “part of the series of events that

       constituted the commission” of the offenses committed in Vanderburgh

       County. Appellant’s App. Vol. 2 at 44. Howell asserts that the trial court’s

       language meets the definition of “episode of criminal conduct” as defined in the

       statute governing consecutive and concurrent terms, Indiana Code Section 35-

       50-1-2. His argument contains two underlying assumptions: (1) that Section 35-

       50-1-2(b)’s definition of episode of criminal conduct applies to the Firearm

       Enhancement Statute; and (2) that the standard that the trial court applied to

       determine whether his crimes should be prosecuted together is the same

       standard that applies for purposes of sentencing under Section 35-50-1-2. We

       address each assumption in turn.


[36]   Subsection (i) of the Firearms Enhancement Statute provides, “A person may

       not be sentenced under subsections (g) and (h) for offenses, felonies, and

       misdemeanors comprising a single episode of criminal conduct.” The Firearm

       Enhancement Statute does not define a single episode of criminal conduct. The

       only definition of episode of criminal conduct in Title 35, Criminal Law and

       Procedure, is provided by Section 35-50-1-2-(b), which reads, “As used in this

       section, ‘episode of criminal conduct’ means offenses or a connected series of

       offenses that are closely related in time, place, and circumstance.” 9 (Emphasis

       added). The Firearm Enhancement Statute is not in that section, but rather in



       9
         Section 35-31.5-2-121 unhelpfully provides, “‘Episode of criminal conduct’, for purposes of IC 35-50-1-2,
       has the meaning set forth in IC 35-50-1-2(b).” We also note that Indiana Code Sections 35-38-9-2 and -5 refer
       to “the same episode of criminal conduct” but do not cite the definition in Section 35-50-1-2(b) or provide an
       independent definition.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                       Page 24 of 33
       Chapter 35-50-2. Nor does Subsection (i) of the Firearm Enhancement Statute

       refer to 35-50-1-2(b). However, another section of Chapter 35-50-2, Section 35-

       50-2-1.3 (“Advisory sentence”), refers to “an episode of criminal conduct, in

       accordance with IC 35-50-1-2.” In addition, “‘[s]tatutes relating to the same

       general subject matter are in pari materia [on the same subject] and should be

       construed together so as to produce a harmonious statutory scheme.’” Taylor v.

       State, 7 N.E.3d 362, 365 (Ind. Ct. App. 2014) (quoting State v. Vankirk, 955

       N.E.2d 765, 767 (Ind. Ct. App. 2011), trans. denied (2012)). Because both

       Section 35-50-1-2 and the Firearm Enhancement Statute deal with sentencing,

       we conclude that the definition of episode of criminal conduct in Section 35-50-

       1-2(b) is applicable to the Firearm Enhancement Statute.


[37]   As for the trial court’s finding that Howell’s Warrick County offenses were

       “part of the series of events that constituted the commission” of the

       Vanderburgh County offenses, we are unpersuaded that it is equivalent to a

       finding that Howell’s offenses comprise a single episode of criminal conduct as

       defined in Section 35-50-1-2-(b). Appellant’s App. Vol. 2 at 44. While Section

       35-50-1-2-(b) describes an episode of criminal conduct in part as “offenses or a

       connected series of offenses,” it requires more than that the offenses be merely

       connected; the offenses must be “closely related in time, place, and

       circumstance.” We find it instructive that this Court has previously declined to

       treat the analysis of crimes for joinder purposes the same as that for sentencing.

       In Slone v. State, 11 N.E.3d 969, 973 (Ind. Ct. App. 2014), another panel of this

       Court rejected the defendant’s argument that the State’s successful effort to join


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 25 of 33
       two causes for trial proved that his crimes arose out of an episode of criminal

       conduct. In doing so, the Slone court observed,


               We have previously stated that while the phrase “episode of
               criminal conduct” may involve somewhat similar language to
               Indiana Code section 35-34-1-9(a), “we decline to conflate the
               ‘episode of criminal conduct’ analysis for sentencing defendants
               with the ‘single scheme or plan’ analysis for charging them.”
               State v. Dixon, 924 N.E.2d 1270, 1273 n.4 (Ind. Ct. App. 2010)
               (citing Deshazier v. State, 877 N.E.2d 200, 213 n.12 (Ind. Ct. App.
               2007) (declining to apply “single scheme or plan” analysis to
               consecutive sentencing case), trans. denied ).


       Id. Accordingly, the trial court’s denial of Howell’s motion to dismiss is not

       conclusive as to whether his offenses constitute a single episode of criminal

       conduct for purposes of sentencing.


[38]   Turning to the merits of Howell’s claim that his offenses comprise a single

       episode of criminal conduct, we reiterate that an “episode of criminal conduct”

       is defined as “offenses or a connected series of offenses that are closely related

       in time, place, and circumstance.” Ind. Code § 35-50-1-2(b). “Whether certain

       offenses constitute a ‘single episode of criminal conduct’ is a fact-intensive

       inquiry.” Schlichter v. State, 779 N.E.2d 1155, 1157 (Ind. 2002).


               In determining whether multiple offenses constitute an episode of
               criminal conduct, the focus is on the timing of the offenses and
               the simultaneous and contemporaneous nature, if any, of the
               crimes. Additional guidance on the question can be obtained by
               considering whether the alleged conduct was so closely related in
               time, place, and circumstance that a complete account of one


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 26 of 33
               charge cannot be related without referring to the details of the
               other charge.


       Williams v. State, 891 N.E.2d 621, 631 (Ind. Ct. App. 2008) (citations, quotation

       marks, and brackets omitted).


[39]   Here, it is undisputed that the offenses were not committed simultaneously or

       contemporaneously. In addition, they were not closely related in place; Howell

       committed voluntary manslaughter in Vanderburgh County, but committed

       attempted robbery and auto theft in Warrick County. We also cannot say that

       they are closely related in circumstance. Howell shot Karns because they were

       arguing, he knew she owned guns, and he thought she was drawing a gun.

       After Coty and Howell’s father loaded Karns’s body into her truck, Howell

       drove the truck away. He testified that he drove in the direction of his wife’s

       home because he wanted to see her and his children again before he called the

       police. Tr. Vol. 3 at 183. However, he wrecked the truck. He testified that he

       was hurt and scared and was still under the influence of methamphetamine and

       marijuana. Id. at 185. He fled the scene and ran into the woods. When he

       came out of the woods, he encountered Scales. When he was unable to take

       Scales’s truck, he stole the Explorer. Howell’s attempt to rob Scales’s truck and

       his theft of the Explorer appear to flow from his vehicle accident and use of

       drugs. Although the attempted robbery and theft may be closely related in

       time, place, and circumstance, those two offenses are not closely related in

       time, place, and circumstance to the shooting of Karns. As such, we conclude

       that Howell’s voluntary manslaughter offense is not part of a single episode of

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 27 of 33
       criminal conduct for purposes of the Firearm Enhancement Statute.

       Accordingly, we conclude that the trial court did not err in enhancing Howell’s

       sentence for voluntary manslaughter.


            Section 4 – The trial court did not abuse its discretion in
                          finding aggravating factors.
[40]   Howell asserts that the trial court abused its discretion in sentencing him by

       finding invalid aggravating factors. We note that sentencing decisions rest

       within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d

       482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d 218. So long as the sentence

       is within the statutory range, it is subject to review only for an abuse of

       discretion. Id. An abuse of discretion occurs if the decision is clearly against

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

       reasonable, probable, and actual deductions to be drawn therefrom. Id. at 491.

       A trial court abuses its discretion during sentencing by: (1) failing to enter a

       sentencing statement at all; (2) entering a sentencing statement that includes

       aggravating and mitigating factors that are unsupported by the record; (3)

       entering a sentencing statement that omits reasons that are clearly supported by

       the record; or (4) entering a sentencing statement that includes reasons that are

       improper as a matter of law. Id. at 490-91.


[41]   Specifically, Howell claims that the trial court improperly found as aggravating

       factors that he lacked remorse and that he intended to harm Scales. At the

       sentencing hearing, the trial court considered Howell’s expressions of remorse

       and concluded as follows:

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 28 of 33
               There’s nothing about anything you did from the moment you
               pulled that trigger that suggests you had even an ounce of
               remorse for what you did. …. I have no idea today whether any
               of your statements of remorse [are] genuine or not. I hope they
               are. I hope sincerely that you have found personal redemption for
               the horrific thing that you’ve done here but I can’t — I will not
               base my judgment on that because you’re the only one that can
               possibl[y] know that with any degree of certainty. Therefore the
               Court finds no mitigating circumstance.


       Tr. Vol. 4. at 227-28. Howell contends that the first part of this quote suggests

       that the trial court considered lack of remorse as an aggravating factor. We find

       nothing in the trial court’s statement that suggests that it considered lack of

       remorse as an aggravating factor. Further, lack of remorse was not listed as an

       aggravating factor in the written sentencing order.


[42]   As for Howell’s claim that the trial court found that he intended to harm Scales,

       the trial court stated,


               I have no doubt that you intended to harm Mr. Scales or at a
               minimum, acted with a callous disregard of whether you were
               going to harm him or not when you fired into his truck in an
               effort to get control of that truck so you could evade
               responsibility for this act.


       Id. at 227. Howell asserts, “Contrary to the trial court’s statement, the only

       conclusion to be drawn from the jury’s verdict was that [Howell] did not intend

       to harm Scales when he fired into his vehicle.” Appellant’s Br. at 43. We

       disagree. The jury acquitted Howell of the attempted murder of Scales.


[43]   Further, our supreme court has explained,
       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 29 of 33
                When evaluating the nature of the offense, the trial court may
                properly consider the particularized circumstances of the factual
                elements as aggravating factors. The trial court must then detail
                why the defendant deserves an enhanced sentence under the
                particular circumstances. Generally, this aggravator is thought to
                be associated with particularly heinous facts or situations.


       McElroy v. State, 865 N.E.2d 584, 589-90 (Ind. 2007) (citations and quotation

       marks omitted). Here, Howell did not merely threaten Scales or use physical

       force to compel Scales to relinquish control of his truck, he fired at Scales five

       times at close range. That is significantly more than required to support a

       conclusion that he intended to harm Scales. We conclude that the trial court

       did not abuse its discretion in sentencing Howell.


        Section 5 – Howell has failed to meet his burden to show that
                       his sentence is inappropriate.
[44]   Howell asks us to reduce his fifty-seven-year aggregate sentence10 pursuant to

       Appellate Rule 7(B), which states, “The 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.” When reviewing a sentence, our principal role is to

       leaven the outliers rather than necessarily achieve what is perceived as the

       correct result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind. 2008).

       “We do not look to determine if the sentence was appropriate; instead we look



       10
          Although we vacate Howell’s conviction for criminal recklessness, it will not affect his aggregate sentence
       because the sentence for that conviction was concurrent to his sentence for attempted robbery.

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018                        Page 30 of 33
       to make sure the sentence was not inappropriate.” Conley v. State, 972 N.E.2d

       864, 876 (Ind. 2012). “[S]entencing is principally a discretionary function in

       which the trial court’s judgment should receive considerable deference.”

       Cardwell, 895 N.E.2d at 1222. “Such deference should prevail 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). In

       conducting our review, we may consider all aspects of the penal consequences

       imposed by the trial court in sentencing, i.e., whether it consists of executed

       time, probation, suspension, home detention, or placement in community

       corrections, and whether the sentences run concurrently or consecutively.

       Davidson v. State, 926 N.E.2d 1023, 1025 (Ind. 2010). In addition, as we assess

       the nature of the offense and character of the offender, “we may look to any

       factors appearing in the record.” Boling v. State, 982 N.E.2d 1055, 1060 (Ind.

       Ct. App. 2013). Howell has the burden to show that his sentence is

       inappropriate. Anglemyer, 868 N.E.2d at 490.


[45]   Turning first to the nature of the offenses, we observe that “the advisory

       sentence is the starting point the Legislature selected as appropriate for the

       crime committed.” Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). Howell’s

       fifty-seven-year aggregate sentence comprises three consecutive sentences, all of

       which are above the advisory sentence. Howell received a twenty-five-year

       sentence for level 2 felony voluntary manslaughter plus a fifteen-year firearm


       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 31 of 33
       enhancement, a fifteen-year sentence for level 3 felony attempted robbery, and a

       two-year sentence for level 6 felony auto theft. The penalty for a level 2 felony

       is ten to thirty years, with an advisory sentence of seventeen and a half years.

       Ind. Code § 35-50-2-4.5. The penalty for a level 3 felony is three to sixteen

       years, with an advisory sentence of nine years. Ind. Code § 35-50-2-5(b). The

       penalty for a level 6 felony is six months to two and a half years, with an

       advisory sentence of one year. Ind. Code § 35-50-2-7(b).


[46]   Howell argues that the nature of the offenses shows that he is not a cold-

       blooded killer, but a person who made tragic mistakes based on fear and panic.

       Although the jury acquitted him of the murder and attempted murder charges,

       Howell’s crimes were nevertheless brutal and he showed no restraint. He shot a

       woman in the head and then fled with her body. After he wrecked her vehicle,

       he attempted to rob another victim of his vehicle by firing multiple shots at him

       resulting in bodily injury to the victim’s leg. He then stole a third victim’s

       vehicle. The existence of multiple crimes and victims justifies imposition of

       enhanced and consecutive sentences “to vindicate the fact that there were

       separate harms and separate acts against more than one person.” Serino v. State,

       798 N.E.2d 852, 857 (Ind. 2003). On balance, we cannot say that Howell has

       shown compelling evidence portraying the nature of the offenses in a positive

       light.


[47]   As for Howell’s character, he argues that he has a “minor” criminal history of

       two felony convictions both related to substance abuse and that the current

       offenses mark a substantial departure from his character. However, his

       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 32 of 33
       substance abuse has a long history and he was under the influence of drugs

       when committing the current offenses. We conclude that Howell has failed to

       carry his burden to show that his sentence is inappropriate based on the nature

       of the offenses and his character. Accordingly, we affirm his aggregate

       sentence.


                                                  Conclusion
[48]   Based on the foregoing, we remand with instructions to vacate Howell’s

       conviction for level 6 felony criminal recklessness. In all other respects, we

       affirm.


[49]   Affirmed and remanded.


       Robb, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Opinion 82A05-1707-CR-1474 | March 13, 2018   Page 33 of 33
