MEMORANDUM DECISION                                                            FILED
                                                                          Mar 10 2017, 9:39 am
Pursuant to Ind. Appellate Rule 65(D),
                                                                               CLERK
this Memorandum Decision shall not be                                      Indiana Supreme Court
                                                                              Court of Appeals
regarded as precedent or cited before any                                       and Tax Court

court except for the purpose of establishing
the defense of res judicata, collateral
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Kimberly A. Jackson                                      Curtis T. Hill, Jr.
Indianapolis, Indiana                                    Attorney General of Indiana
                                                         J. T. Whitehead
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Jeremy A. Perry,                                         March 10, 2017
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         01A05-1603-CR-678
        v.                                               Appeal from the Adams Circuit
                                                         Court
State of Indiana,                                        The Honorable Chad E.
Appellee-Plaintiff.                                      Kukelham, Judge
                                                         Trial Court Cause No.
                                                         01C01-1505-F3-3



Riley, Judge.




Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017               Page 1 of 24
                                STATEMENT OF THE CASE
[1]   Appellant-Defendant, Jeremy A. Perry (Perry), appeals his conviction for

      aggravated battery, a Level 3 felony, Ind. Code § 35-42-2-1.5; and attempted

      aggravated battery, a Level 3 felony, I.C. §§ 35-42-2-1.5; -41-5-1.


[2]   We affirm.


                                                  ISSUES
[3]   Perry raises three issues on appeal which we restate as follows:


          (1) Whether the trial court abused its discretion in admitting the deposition

              testimony of an unavailable witness;

          (2) Whether the State presented sufficient evidence to sustain Perry’s

              conviction for aggravated battery and attempted aggravated battery

              beyond a reasonable doubt; and

          (3) Whether Perry’s sentence is appropriate in light of the nature of the

              offenses and his character.


                      FACTS AND PROCEDURAL HISTORY
[4]   On Memorial Day 2015, Tasha Wilson (Wilson) and Pamela King (King),

      next-door neighbors in the Belmont Estates in Decatur, Indiana, decided to host

      a barbecue at Wilson’s house. Other guests included Ciarra Hardin (Hardin),

      Hardin’s boyfriend, Rakim, and Hardin’s cousin, Perry, who was present

      intermittently throughout the party.




      Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 2 of 24
[5]   That same night, Cyle Alverson (Alverson) was working late at the Riverview

      Tavern, where Marcus Richards (Richards) was also employed. When

      Alverson’s shift ended at midnight, he was met by Richards, who did not have

      to work that night. They purchased an 18-pack of beer and went to Alverson’s

      home, where they “regularly [] would hang out.” (Transcript p. 246). They

      stood around in Alverson’s back yard, listening to music and drinking. At a

      certain point, they noticed Perry walking in the neighborhood. Alverson, in a

      “mouthy and cocky” way, told him “quiet down, you’re walking to[o] loud.”

      (Tr. p. 248). Perry “got upset” and came towards Alverson and Richards. (Tr.

      p. 248). He started yelling and said, “I’m going to go get something to ‘F’ you

      two up with.” (Tr. p. 249). Perry returned to Wilson’s house.


[6]   When he arrived at Wilson’s residence, Perry informed the guests present there

      that “he had got into an altercation with some guys.” (Tr. p. 334). He told

      Rakim “these bitch ass niggers is trying to start some stuff.” (Tr. p. 334). Perry,

      who was angry, wanted them to “go out, [], and [] take care of it.” (Tr. p. 334).

      After mentioning something to Rakim about “messing somebody up,” Perry

      went to the kitchen sink and then left Wilson’s house, almost “running out,”

      with King, Hardin, and Wilson following him into the back yard. (Tr. p. 409).


[7]   Within three to four minutes from the first encounter, Perry returned to

      Alverson’s. When Alverson noticed Perry returning, he started walking

      towards him and they met in Alverson’s neighbor’s back yard. Alverson could

      see a “shiny silver object” in Perry’s right hand, which Alverson thought to be a

      “blade.” (Tr. p. 251). He “instantly tried to calm the situation down.” (Tr. p.

      Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 3 of 24
      251). Alverson wanted to resolve the altercation and asked to “go [their]

      separate ways. Be done with it.” (Tr. p. 252). Perry replied, “F that and swung

      the knife” at Alverson. (Tr. p. 252). Perry lunged at Alverson and missed

      striking his head by about five inches. While Perry was swinging another four

      to six times, Alverson kept backing up, eventually tripping over his feet and

      falling backwards. Alverson tried to “crab walk” in an attempt to get away

      from Perry but Richards intervened. (Tr. p. 253). Richards tackled Perry and

      Perry made “two swift motions,” stabbing Richards. (Tr. p. 254).


[8]   Hardin, King, and Wilson, who had arrived at the scene, noticed Richards

      leaning over against the house, holding his stomach. King heard Perry

      announce that he had stabbed someone. The women asked Richards what was

      wrong and if he was okay. Alverson informed them that Richards had been

      stabbed. Everyone left, except Alverson. Alverson helped Richards, who was

      drifting in and out of consciousness, and started to walk him to his residence.

      While returning to his house, Alverson could feel Richards’ blood on his arm.

      He placed Richards in the grass near his front door and noticed a stab wound in

      Richards’ lower back. Alverson pounded on his front door until his wife

      opened. He told his wife to grab the car keys and to drive Richards to Adams

      Memorial Hospital.


[9]   When Richards arrived at the emergency room at Adams Memorial Hospital,

      he was “actively dying.” (Tr. p. 519). Richards was “just kind of dropped off

      in the lobby” and when the doctors tried to move him, the wound on Richards’

      back started bleeding excessively, indicating a collapsed lung. (Tr. p. 513).

      Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 4 of 24
       Because Richards required advanced trauma life support, he was taken by

       helicopter to Parkview Hospital. After a full evaluation, it was determined that

       Richards’ stab wounds included one which had lacerated his liver, cut his

       diaphragm, and punctured his lung.


[10]   After attacking Alverson and stabbing Richards, Perry went to Samantha

       Comment’s (Comment) house. Comment and Perry were “friends with

       benefits.” (Tr. p. 435). A little later, King and Wilson arrived at Comment’s

       house to retrieve King’s house keys from Perry. After King had located her

       keys, Wilson left again but King remained at Comment’s residence because she

       did not wish to be found and questioned by the police, who had arrived in the

       neighborhood and were looking for a suspect. When the police knocked on

       Comment’s door and asked for entry, Comment refused to let them enter.

       Meanwhile, Perry was walking back and forth between the bedroom, where

       Comment was smoking, and the living room, where King was sitting on the

       couch. Perry and King started to get intimate and had sexual intercourse on the

       couch. When the police officers returned and knocked a second time asking to

       enter the house, Comment consented after getting dressed again. Police officers

       located Perry inside Comment’s closet, dressed in his underwear only.


[11]   While in custody in the Adams County Jail, Perry’s cell-mate was Chad Sweet

       (Sweet), who was incarcerated for violating his probation. Perry talked to

       Sweet about his situation and told him that he “had stabbed this guy[.]” (Tr. p.

       454). He explained to Sweet that he had grab[bed] a knife out of [Wilson’s]

       kitchen” and had “st[u]ck the guy with a knife somewhere in the kidney area.”

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 5 of 24
       (Tr. p. 454). Perry expressed surprise that “the knife didn’t make it all the way

       through the person to himself because the knife was so long.” (Tr. p. 455).

       Perry told Sweet that after the altercation he returned to Comment’s house and

       threw the knife “in the bottom of a pile of dirty dishes in the sink that already

       had [] a large amount number of knives and plates [] in the water.” (Tr. p. 456).


[12]   On May 27, 2015, the State filed an Information, charging Perry with

       aggravated battery, a Level 3 felony. On November 23, 2015, the State

       amended the charging information, adding a second Count of attempted

       aggravated battery, a Level 3 felony. On February 17, 2016, the trial court

       conducted a three-day jury trial. During the trial, the trial court admitted the

       deposition testimony of Hardin, over Perry’s objection. At the conclusion of

       the evidence, the jury found Perry guilty as charged. During the sentencing

       hearing on March 9, 2016, the trial court sentenced Perry to fourteen-years

       imprisonment for aggravated battery and to twelve-years imprisonment for

       attempted aggravated battery, with sentences to be served consecutively.


[13]   Perry now appeals. Additional facts will be provided as necessary.


                               DISCUSSION AND DECISION
                                            I. Unavailable Witness


[14]   Perry contends that the trial court abused its discretion by admitting the

       deposition testimony of Hardin as she was unavailable to testify at trial.

       Maintaining that the trial court made an error, Perry claims that Hardin was

       not unavailable for purposes of Indian Evidence Rule 804(b) and the admission
       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 6 of 24
       of her deposition also violated his right to confront the witness pursuant to the

       Sixth Amendment of the United States Constitution and Article I, Section 13 of

       the Indiana Constitution. The decision to admit or exclude evidence is within

       the trial court’s sounds discretion and is afforded great deference on appeal.

       Norris v. State, 53 N.E.3d 512, 517 (Ind. Ct. App. 2016). An abuse of discretion

       occurs where the trial court’s decision is clearly against the logic and effect of

       the facts and circumstances before it or it misinterprets the law. Id.


                                                   A. Hearsay


[15]   Hearsay is an out-of-court statement offered to prove the truth of the matter

       asserted. Ind. Evid. R. 801(c). Generally, deposition testimony of an absent

       witness offered in court to prove the truth of the matter asserted constitutes

       classic hearsay. Garner v. State, 777 N.E.2d 721, 724 (Ind. 2002). Possible

       exceptions to the hearsay rule lie under both Indiana Trial Rule 32 and Indiana

       Evidence Rule 804, which allow the use of prior recorded testimony in lieu of

       live testimony in certain circumstances. Id. Specifically, Indiana Evidence

       Rule 804 provides a hearsay exception for the prior testimony of a declarant

       who is unavailable as a witness. Where a declarant is unavailable as a witness,

       the hearsay rule does not exclude the declarant’s former testimony which was

       given at a lawful deposition and is now offered against a party who had the

       opportunity to cross-examine the witness. Ind. Evid. R. 804(b)(1)(A). A

       declarant is unavailable for purposes of this exception if the declarant is absent

       from trial and the State “has not been able, by process or other reasonable

       means to procure[] the declarant’s attendance.” Evid. R. 804(a)(5). If a

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 7 of 24
       declarant is unavailable, a “deposition taken in compliance with the law in the

       course of the same or another proceeding, if the party against whom the

       testimony is now offered . . . had an opportunity and similar motive to develop

       testimony by direct, cross, or redirect examination” is not excluded by the

       hearsay rule. Evid. R. 804(b)(1)(B). The decision to invoke the rule allowing

       admission of prior recorded testimony, such as a deposition, is within the sound

       discretion of the trial court. Garner, 777 N.E.2d at 724.


[16]   The record reflects that Hardin was deposed on December 15, 2015 by the

       State. During this deposition, Perry’s counsel was present and cross-examined

       Hardin. Hardin was subpoenaed on December 3, 2016 to appear for Perry’s

       trial and she signed the subpoena on December 7, 2016. At trial, she was called

       but was not present. Detective Chris Brite of the Decatur Police Department

       (Detective Brite), testified that after he initially served the subpoena to Hardin

       at her residence, he returned to the residence to talk to her. He also returned a

       third time. When he went back a fourth time, Hardin was not home and he

       placed his business card in her door. When Detective Brite returned a fifth

       time, the front door had a “notice to remove her from the home” and utility

       bills, which were past due, were stuck on it. (Tr. p. 357). Detective Brite spoke

       with the manager at the Belmont Estates who informed him that Hardin might

       have possibly gone back to Chicago. Text messages sent to Hardin’s cell phone

       were not returned. Three days prior to the trial, Detective Brite returned to

       Hardin’s residence for the last time. He noticed that Hardin’s car was still in

       the parking lot and several documents were still attached to her front door,


       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 8 of 24
       including his business card. Based on Detective Brite’s repeated efforts to

       locate and contact Hardin and bring her to testify, we find that the State made

       reasonable efforts to procure her attendance at trial.


[17]   Perry argues that “[s]imply going to [Hardin’s] home did not constitute a

       reasonable effort to locate her, given that police had information indicating she

       had moved to a nearby city and saw her vehicle parked at her home.”

       (Appellant’s Br. p. 25). Whether the State could have secured Hardin had it put

       forth considerably more effort is speculative at best. Indiana’s Rules of

       Evidence only require a party to make a reasonable effort to secure a witness’

       presence at trial, not an extra ordinary out-of-state search. Moreover, Perry’s

       claim that “counsel would have displayed a different demeanor [at the

       deposition] if he had known Hardin’s deposition would be trial testimony” is

       equally unavailing. (Appellant’s Br. p. 26).

               Even if the primary motive of a discovery deposition in a
               criminal case is to obtain a preview of a witness’s testimony, this
               certainly does not exclude the need to understand how the
               witness’s story and credibility might be attacked. We believe that
               a prudent defense attorney conducting a discovery deposition in
               a criminal case would not only attempt to ascertain what the
               substance of the testimony might be but also explore avenues by
               which the testimony or the witness’s credibility might be
               attacked.


       Berkman v. State, 976 N.E.2d 68, 78 (Ind. Ct. App. 2012), trans. denied, cert.

       denied, 134 S.Ct. 155 (2013). Perry does not explain how he was prevented

       from pursuing any lines of questioning or how Hardin would have been

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 9 of 24
       questioned any differently at trial. Under the circumstances of this case, we

       conclude that the trial court did not abuse its discretion by declaring Hardin to

       be unavailable.


                                            B. Confrontation Rights


[18]   Continuing in a similar vein, Perry contends that the admission into evidence of

       Hardin’s deposition testimony after she was declared to be unavailable violated

       his right to cross-examination. The Sixth Amendment to the United States

       Constitution provides, in part, that “[i]n all criminal prosecutions, the accused

       shall enjoy the right . . . to be confronted with the witnesses against him[.]” It is

       well-settled that the admission of prior testimony is constitutional provided

       certain requirements are met.


               In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158
               L.Ed.2d 177 (2004), the Supreme Court held that the
               Confrontation Clause of the Sixth Amendment to the Federal
               Constitution prohibits admission in a criminal trial of testimonial
               statements by a person who is absent from trial, unless the person
               is unavailable and the defendant had a prior opportunity to cross-
               examine the person.


       Fowler v. State, 829 N.E.2d 459, 464 (Ind. 2005), cert. denied 547 U.S. 1193

       (2006). The confrontation clause guarantees an opportunity for effective cross-

       examination, not cross-examination that is effective in whatever way, and to

       whatever extent, the defense might wish. Delaware v. Fensterer, 474 U.S. 15, 20

       106 S. Ct. 292, 294, 88 L.Ed. 2d 15 (1985).



       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 10 of 24
[19]   Here, Hardin’s pre-trial deposition was an extra-judicial statement that is

       categorized as a testimonial statement for the Crawford analysis. See Crawford,

       541 U.S. at 51-52. Although Hardin could not be located or found prior to trial

       by reasonable efforts and therefore became unavailable, Perry had a prior

       opportunity to cross-examine Hardin—and had availed himself of this

       opportunity—during the deposition. Accordingly, Perry’s Sixth Amendment

       Right was not violated.


                            C. Article I, Section 13 of the Indiana Constitution


[20]   Article I, Section 13 of the Indiana Constitution provides that “[i]n all criminal

       prosecutions, the accused shall have the right . . . to meet the witnesses face to

       face[.]” “To a considerable degree, the federal right of confrontation and the

       state right to a face-to-face meeting are co-extensive.” Brady v. State, 575

       N.E.2d 981, 987 (Ind. 1991). “But because Indiana’s clause contains both the

       right to cross-examine and the right to meet witnesses face to face in the

       courtroom during trial, Indiana’s right to confrontation is more generous.”

       Harris v. State, 964 N.E.2d 920, 924 (Ind. Ct. App. 2012), trans. denied. Our

       supreme court has “long recognized that this basic trial right is an ancient one

       with roots in the common law and that its design has more than a single part.”

       Brady, 575 N.E.2d at 986.


[21]   In applying this constitutional provision, the supreme court has concluded that

       the right “is in the nature of a privilege which concerns the individual defendant

       and bears only upon the procedure on the trial.” Id. at 987. However, Article I,


       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 11 of 24
       Section 13 has not been interpreted literally to guarantee a criminal defendant

       all rights of confrontation at every trial for every witness; otherwise, no

       testimony of any absent witness would ever be admissible at trial. State v.

       Owens, 622 N.E.2d 948, 951 (Ind. 1993). Thus, the right of confrontation “must

       occasionally give way to considerations of public policy and the necessities of

       the case.” Id. As out supreme court explained in Brady:


               The right is not absolute. It is secured where the testimony of a
               witness at a former hearing or trial on the same case is
               reproduced and admitted, where the defendant either cross-
               examined such witness or was afforded an opportunity to do so,
               and the witness cannot be brought to testify at trial again because
               he had died, become insane, or is permanently or indefinitely
               absent from the state and is therefore beyond the jurisdiction of
               the court in which the case is pending.


       Brady, 575 N.E.2d at 987 (citing Wilson v. State, 93 N.E. 609 (Ind. 1910)).


[22]   This constitutional framework allows the use of prior deposition testimony

       provided the trial court finds that the witness is unavailable and the statement

       bears sufficient indicia of reliability. Owings, 622 N.E.2d at 952. In short, a

       deposition that comports with the principal purposes of cross-examination

       provides sufficient indicia of reliability. Id. The focus of the test is not on

       whether the trial court believes the witness to be telling the truth, but rather on

       the process by which the prior statement was obtained. Id. As such

       “[t]estimony given under oath, subject to penalties of perjury[,] and recorded by

       a court reporter has sufficient indicia of reliability.” Id. at 953.



       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 12 of 24
[23]   Hardin was deposed on December 15, 2015. Her deposition was obtained

       pursuant to procedures designed to elicit the truth. She was “duly sworn” in

       before her deposition began. (State’s Exh. 38, p. 4). Defense counsel cross-

       examined her after the State rested its direct examination. The deposition was

       audio-recorded and transcribed by a court reporter. Accordingly, as Hardin

       could not be located and was found unavailable for trial, Perry’s constitutional

       rights were not violated when the trial court admitted her properly obtained

       deposition. Nevertheless, disregarding his counsel’s presence at the deposition,

       Perry now maintains that he “never had an opportunity to confront Hardin face

       to face or through a meaningful opportunity for cross-examination.”

       (Appellant’s Br. p. 31). We have previously held that “criminal defendants

       generally have no constitutional right to attend depositions.” Owings, 622

       N.E.2d at 951. As Perry cites to no authority for the proposition that he was

       entitled to attend the deposition as part of a right to assist in his defense, his

       constitutional right was preserved.


                                        II. Sufficiency of the Evidence


[24]   Next, Perry contends that the State failed to present sufficient evidence beyond

       a reasonable doubt to support his conviction for aggravated battery and

       attempted aggravated battery. Our standard of review for a sufficiency of the

       evidence claim is well settled. In reviewing sufficiency of the evidence claims,

       we will not reweigh the evidence or assess the credibility of the witnesses.

       Moore v. State, 869 N.E.2d 489, 492 (Ind. Ct. App. 2007). We will consider only

       the evidence most favorable to the judgment, together with all reasonable and

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 13 of 24
       logical inferences to be drawn thereof. Id. The conviction will be affirmed if

       there is substantial evidence of probative value to support the conviction of the

       trier of fact. Id.


                                            A. Aggravated Battery


[25]   To convict Perry of aggravated battery, a Level 3 felony, the State was required

       to establish that Perry knowingly or intentionally inflicted injury on Richards

       that created a substantial risk of death or caused protracted loss or impairment

       of the function of a bodily member or organ. See I.C. § 35-42-2-1.5. However,

       Perry does not dispute that he stabbed and battered Richards; instead, his

       challenge to the sufficiency of the evidence is limited to the argument that the

       State failed to present sufficient evidence to rebut his claim that he committed

       the battery in self-defense.


[26]   A valid claim of self-defense is legal justification for an otherwise criminal act.

       Cole v. State, 28 N.E.3d 1126, 1137 (Ind. Ct. App. 2015). “A person is justified

       in using reasonable force against any other person to protect the person or a

       third person from what the person reasonably believes to be the imminent use

       of unlawful force.” I.C. § 35-41-3-2(c). Nevertheless, a person is not justified in

       using force if the person has “entered into combat with another person or is the

       initial aggressor unless the person withdraws from the encounter and

       communicates to the other person the intent to do so and the other person

       nevertheless continues or threatens to continue unlawful action.” I.C. § 35-41-

       3-2(g)(3).


       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 14 of 24
[27]   To prevail on a claim of self-defense, Perry must show: (1) he was in a place

       where he had a right to be; (2) he acted without fault; and (3) he had a

       reasonable fear of death or great bodily harm. Cole, 28 N.E.3d at 1137. “When

       a claim of self-defense is raised and finds support in the evidence, the State has

       the burden of negating at least one of the necessary elements.” Id. (citing

       Wilson v. State, 770 N.E.2d 799, 800 (Ind. 2002)). The State may meet this

       burden “by rebutting the defense directly, by affirmatively showing the

       defendant did not act in self-defense, or by simply relying upon the sufficiency

       of its evidence in chief.” Id. Whether the State has met its burden is a question

       of fact for the fact-finder. Id.


[28]   Perry argues that he “did not provoke, instigate, or participate willingly in the

       violence[;]” rather he suggests that “Alverson initiated the contact by leaving

       his backyard and confronting Perry.” (Appellant’s Br. pp. 37, 38). He claims

       that “[e]ven if Perry threw the first punch, such action was a reasonable

       response by Perry to protect himself against the threat that Alverson and

       Richards posed at that moment. Perry only swung at Alverson after a drunk

       and previously aggressive Alverson confronted him.” (Appellant’s Br. p. 38).

       Accordingly, Perry maintains that “[g]iven the verbal altercation earlier, the

       darkness that surrounded them, and the approach by Alverson and Richards,

       Perry had a reasonable fear of death or great bodily harm at the time.”

       (Appellant’s Br. p. 39). We disagree.


[29]   Evidence presented at trial reveals that the State rebutted Perry’s claim of self-

       defense. As the State correctly asserts, Perry “was the attacker, and it was

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 15 of 24
       Richards and Alverson who defended themselves against him.” (Appellee’s Br.

       p. 22). The first altercation between Perry and his victims occurred when

       Alverson, in a “mouthy and cocky” manner, told Perry to “quiet down.” (Tr.

       p. 248). Perry became angry and warned Richards and Alverson that “I’m

       going to go get something to ‘F’ you two up with.” (Tr. p. 249). At that point,

       Perry retreated to Wilson’s residence and the verbal altercation was ended.


[30]   Nevertheless, when Perry arrived at Wilson’s home, he was angry and informed

       the guests that “these bitch ass niggers is trying to start some stuff.” He wanted

       them to “go out, [], and take care of it.” (Tr. p. 334). Perry went to the kitchen

       sink and then left the house, “almost running out[.]” (Tr. p. 409). He returned

       to Alverson’s. When Alverson noticed Perry coming towards them, he could

       see a “shiny silver object in Perry’s hand” and he tried to calm the situation.

       (Tr. p. 251). Alverson, seeking for a resolution to the escalated situation,

       advised to “go [their] separate ways. Be done with it.” (Tr. p. 252). Perry

       replied “F that and swung the knife at Alverson[,]” eventually striking Richards

       several times. (Tr. p. 252).


[31]   Instead of backing down after the verbal altercation and remaining at Wilson’s

       residence, Perry escalated the encounter by returning to Alverson’s wanting to

       “take care of it”, armed with a knife, and instigating the violence. (Tr. p. 334).

       Alverson and Richards were unarmed. At no time did Alverson or Richards

       swing or stab Perry; rather it was Perry who swung first and stabbed, thereby

       seriously injuring Richards. Moreover, once Perry was at Wilson’s residence,

       he could no longer be in fear of death or bodily harm. While he could have

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 16 of 24
       remained at Wilson’s house, he elected to renew the hostilities by returning to

       Alverson’s, where Alverson actively tried to calm the situation. We conclude

       that the State sufficiently rebutted Perry’s claim of self-defense by establishing

       that Perry instigated the violence and was not in fear of death or bodily harm.

       See I.C. § 35-41-3-2(g)(3).


                                      B. Attempted Aggravated Battery


[32]   To convict Perry of attempted aggravated battery, the State was required to

       establish beyond a reasonable doubt that Perry engaged in conduct that

       constituted a substantial step toward knowingly or intentionally inflicting an

       injury on Alverson that created a substantial risk of death or caused serious

       permanent disfigurement, protracted loss or impairment of the function of a

       bodily member or organ. See I.C. §§ 35-41-5-1; -42-2-1.5. A person engages in

       conduct “intentionally,” if, when he engages in the conduct, it is his conscious

       objective to do so. I.C. § 35-41-2-2(a). Perry contends that the State’s evidence

       is insufficient because he never intentionally took a substantial step towards

       creating a substantial risk of death for Alverson. Again, we disagree.


[33]   Perry intended to inflict injuries on Alverson. He even announced this to

       Alverson during the verbal altercation by yelling “I’m going to go get something

       to ‘F’ you two up with.” (Tr. p. 249). Following through on this intent, Perry

       grabbed a knife at Wilson’s home to “take care of it” and returned to confront

       Alverson and Richards. (Tr. p. 334). Noticing Perry approach, Alverson

       walked towards him unarmed and in a conciliatory fashion. Instead of calming


       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 17 of 24
       down, Perry replied “F that and swung the knife” at Alverson. (Tr. p. 252).

       The testimony reflects that Perry missed striking Alverson’s head by about five

       inches. While Perry kept swinging, Alverson was backing up, eventually

       tripping over his feet and falling backwards. Even when Alverson was on the

       ground, Perry kept coming at him with the knife. However, instead of injuring

       Alverson, Perry inflicted serious injuries on Richards which nearly caused his

       death, after Richards intervened and tried to protect Alverson. Accordingly,

       Perry’s statements, along with his actions towards Alverson, demonstrated that

       he intentionally created a substantial risk of serious injury to Alverson.

       Therefore, we conclude that the State presented sufficient evidence to support

       Perry’s Level 3 attempted aggravated battery conviction.


                                   III. Appropriateness of Perry’s Sentence


[34]   Lastly, Perry contends that the trial court erroneously sentenced him to a total

       of twenty-six years of imprisonment. He argues that this aggregate sentence is

       inappropriate for two reasons. First, Perry alleges that the trial court’s

       sentencing statement was inadequate, and second, he disputes the

       appropriateness of his sentence in light of the nature of the crime and his

       character.


                                           A. Sentencing Statement


[35]   Generally, sentencing statements are within the trial court’s discretion. Lewis v.

       State, 31 N.E.3d 539, 542 (Ind. Ct. App. 2015). An abuse of discretion has

       occurred when the sentencing is “clearly against the logic and effect of the facts

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 18 of 24
       and circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Id. at 541-42. A trial court’s sentencing

       statement is adequate if it is “sufficient for this [c]ourt to conduct meaningful

       appellate review.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified

       on reh’g, 875 N.E.2d 218.


               One way in which a trial court may abuse its discretion is failing
               to enter a sentencing statement at all. Other examples include
               entering a sentencing statement that explains reasons for
               imposing a sentence—including a finding of aggravating and
               mitigating factors if any—but the record does not support the
               reasons, or the sentencing statement omits reasons that are
               clearly supported by the record and advanced for consideration,
               or the reasons given are improper as a matter of law. Under
               those circumstances remand for resentencing may be the
               appropriate remedy if we cannot say with confidence that the
               trial court would have imposed the same sentence had it properly
               considered reasons that enjoy support in the record.


       Id. at 490-91. On appeal, we may consider both the trial court’s written

       statement and its comments at the sentencing hearing. Gibson v. State, 856

       N.E.2d 142, 146 (Ind. Ct. App. 2006).


[36]   Perry advances three arguments to declare the trial court’s sentencing statement

       inadequate: (1) the trial court found an improper aggravator, (2) the trial court

       relied on a more extensive criminal history, and (3) the trial court had an

       erroneous understanding of self-defense.


[37]   First, Perry contends that the trial court’s finding that the injury suffered by

       Richards was greater than the elements necessary to prove the commission of

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       the offense was not a valid aggravator. In support of this aggravator, the trial

       court relied on the testimony of the emergency room physician who explained

       that Richards was “dying on the table,” had to be administered O-negative

       blood—the universal donor—and flown by helicopter to another hospital that

       was better equipped to deal with his life threatening injuries. (Tr. p. 648). The

       element necessary to prove aggravated battery is “injury that created a

       substantial risk of death.” See I.C. § 35-42-2-1.5. We agree with the trial court

       that “actively dying” on the table surpasses the element necessary for the

       offense and can be admitted as a valid aggravator. (Tr. p. 519); see, e.g., Paul v.

       State, 888 N.E.2d 818, 823 (Ind. Ct. App. 2008) (“Death is not a necessary

       element of the offense of aggravated battery as a Class B felony; it is a valid

       aggravating factor.”), trans. denied.


[38]   Next, Perry challenges the trial court’s treatment of his arrests as convictions,

       thereby extensively expanding his criminal history that the trial court took into

       account. We have previously held that “a trial court may consider an arrest

       record as reflective of the defendant’s character and as indicative of the risk that

       the defendant will commit other crimes in the future.” Cox v. State, 780 N.E.2d

       1150, 1157 (Ind. Ct. App. 2002). Accordingly, the trial court appropriately

       considered Perry’s arrests, in addition to his convictions.


[39]   Lastly, Perry claims that the trial court relied on an erroneous interpretation of

       self-defense while sentencing him. Specifically, the trial court stated as follows:

               [N]ow you assert self-defense, but in that self-defense, you said
               they didn’t get a single shot off on you. The law as far as I know
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                is for self-defense is equal or lesser force. Retreat when
                necessary. You didn’t do any of those things. You got more
                aggressive and that’s a problem especially for a self-defense,
                defense.


       (Tr. p. 648). 1 Perry now asserts that the statute refers only to the use of

       “reasonable force.” I.C. § 35-41-3-2(c). While we agree with Perry that the

       statutory language refers to reasonable force, we find that the trial court’s

       statement was harmless. A jury had listened to the evidence, and rejected

       Perry’s theory of self-defense by finding him guilty as charged. Accordingly,

       during the sentencing hearing, the trial court was merely imposing a sentence

       based on the jury’s convictions.


                                         B. Appropriateness of the Sentence


[40]   Perry also contends that his sentence is inappropriate in light of the nature of

       the offense and his character. Although a trial court may have acted within its

       lawful discretion in imposing a sentence, Indiana Appellate Rule 7(B) provides

       that an appellate 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




       1
        The quote advanced by Perry in his appellate brief is a compilation of two different statements. The first
       part refers to the self-defense statement on page 648 of the transcript, while the sentences “You chose to be
       aggressive with them and that doesn’t even matter as far as which version of the facts I believe. You clearly
       were to [sic] much of man to even let them touch you[,]” appear on transcript page 652. The partial sentence
       of page 652 is not related to the trial court’s statement on self-defense and therefore we will not consider it in
       our review.

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017                Page 21 of 24
       offender.” The defendant has the burden of persuading us that his sentence is

       inappropriate. Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). Whether

       this court regards a sentence as appropriate at the end of the day turns on its

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

       done to others, and a myriad of other facts that some to light in a given case.

       Suprenant v. State, 925 N.E.2d 1280, 1284 (Ind. Ct. App. 2010), trans. denied.


[41]   Perry was convicted of two Level 3 felonies. The sentencing range for a Level 3

       felony is three to sixteen years, with an advisory sentence of nine years. See I.C.

       § 35-50-2-5. The trial court imposed a sentence of twelve years and fourteen

       years respectively, which are below the maximum sentence authorized by

       statute.


[42]   Turning to Perry’s character, we note that Perry was thirty years old at

       sentencing and had suffered a troubled childhood. He had started to abuse

       alcohol and drugs at a young age. Perry has a juvenile history which includes

       allegations of possession of a firearm. In 2004, he was charged in Illinois with

       possession of a weapon and he pled guilty to unspecified offenses arising out of

       that same charging information. In 2005, he pled guilty in Illinois to a felony

       weapon charge and was sentenced to one-year incarceration. He was convicted

       again in 2006 for possession of a controlled substance and served one-year

       imprisonment. In 2012, Perry was convicted of an unspecified offense in

       Illinois for which he served one-year of probation. He violated his probation

       and was subsequently sentenced to 150 days imprisonment. He was arrested

       for multiple other offenses in Illinois. He was charged with residential burglary

       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 22 of 24
       in Illinois at the same time he was sentenced in the instant cause. Based on this

       criminal history, it is undeniable that several of Perry’s convictions involve

       violence and a weapon.


[43]   With respect to the nature of the offenses, we find the circumstances to be

       extremely callous. After a brief verbal altercation ended and Perry arrived at

       Wilson’s residence, he chose to return and confront Alverson and Richards for

       their taunts. Clarifying to the other guests at Wilson’s party that he was going

       to go out “and take care of it” and was going to “mess[] somebody up,” he ran

       into Wilson’s kitchen. (Tr. pp. 334, 409). Within three to four minutes of the

       first encounter, Perry returned to Alverson’s. Seeing Perry approach armed

       with a knife, Alverson tried to calm the situation down. However, instead of

       going separate ways, Perry elected to attack Alverson. All along, he was not

       interested in remaining safe at Wilson’s residence—even if he had felt

       threatened during the initial verbal altercation—rather, he elected to return,

       armed and ready to escalate the situation. Perry did “go get something”—a

       knife—and he did “mess[] up” at least one of his victims in such a way that he

       was “actively dying.” (Tr. pp. 409, 519). Accordingly, we cannot say that

       Perry’s sentence is inappropriate in light of his character and the nature of the

       offenses.


                                             CONCLUSION
[44]   Based on the foregoing, we hold that the trial court properly admitted Hardin’s

       deposition testimony because she was unavailable at trial; the State presented


       Court of Appeals of Indiana | Memorandum Decision 01A05-1603-CR-678 | March 10, 2017   Page 23 of 24
       sufficient evidence to sustain Perry’s convictions; and Perry’s sentence is

       appropriate in light of the nature of the crime and his character.


[45]   Affirmed.


[46]   Crone, J. and Altice, J. concur




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