Pursuant to Ind.Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any                               Jun 10 2014, 9:14 am
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:

MATTHEW J. McGOVERN                              GREGORY F. ZOELLER
Anderson, Indiana                                Attorney General of Indiana

                                                 BRIAN REITZ
                                                 Deputy Attorney General
                                                 Indianapolis, Indiana




                              IN THE
                    COURT OF APPEALS OF INDIANA

TED MUELLER, JR.,                                )
                                                 )
       Appellant-Defendant,                      )
                                                 )
              vs.                                )      No. 82A05-1305-CR-240
                                                 )
STATE OF INDIANA,                                )
                                                 )
       Appellee-.                                )


               APPEAL FROM THE VANDERBURGH SUPERIOR COURT
                       The Honorable Robert J. Pigman, Judge
                         Cause No. 82D02-1209-MR-1148


                                       June 10, 2014

               MEMORANDUM DECISION – NOT FOR PUBLICATION

RILEY, Judge
                             STATEMENT OF THE CASE

      Appellant-Defendant, Ted A. Mueller, Jr. (Mueller), appeals his conviction for

Count I, murder, Ind. Code § 35-42-1-1; and Count II, conspiracy to commit robbery, a

Class C felony, I.C. §§ 35-41-5-2; 35-42-5-1.

      We affirm.

                                        ISSUES

      Mueller raises five issues on appeal, which we restate as the following four issues:

      (1) Whether the trial court abused its discretion in admitting and excluding certain

          evidence;

      (2) Whether the State failed to present sufficient evidence beyond a reasonable

          doubt to support Mueller’s conviction for conspiracy to commit robbery;

      (3) Whether the trial court abused its discretion in sentencing Mueller; and

      (4) Whether Mueller’s sentence is inappropriate.

                       FACTS AND PROCEDURAL HISTORY

      During the early morning hours of September 17, 2012, a twenty-four-year-old man

from Henderson, Kentucky was murdered outside of an abandoned house in Evansville,

Indiana. The events leading up to the fatal shooting of Cedric Watt (Watt) began the

previous evening when Watt made plans to visit his friend, Shawn Kohlmeyer

(Kohlmeyer). As neither Watt nor Kohlmeyer had a vehicle, Kohlmeyer contacted his

friend, Mueller, and asked if he would be willing to drive to Henderson to pick Watt up



                                            2
and bring him to Evansville. Kohlmeyer informed Mueller that, in exchange for the ride,

Watt had offered to provide gas money and some marijuana.

       At the time, Mueller was temporarily living with his sister, Angie Mueller (Angie),

in an apartment located at 601 East Chandler Avenue in Evansville. Angie’s boyfriend,

Christopher Bell (Bell), and their two children also lived in the apartment, along with three

other roommates. Mueller and Bell arranged to meet Kohlmeyer outside of his girlfriend’s

apartment, and they would drive to Henderson together. Bell also asked Kohlmeyer if he

knew where Bell could obtain a gun, and Kohlmeyer stated that he did not. Following their

conversation with Kohlmeyer, Mueller and Bell made several phone calls. In addition to

calling a third party—supposedly Watt himself—to inquire about marijuana prices, Bell

phoned Mueller’s half-brother “to find more out about [Watt].” (Transcript p. 153).

Mueller’s half-brother articulated that Watt was “a bitch ass” and a “nigga.” (Tr. pp. 173-

74). Their roommate (who is Mueller’s cousin), Dylan Knott (Knott), overheard as Mueller

and Bell made these calls. According to Knott, it sounded as though Mueller and Bell were

discussing plans to execute a robbery.

       As Mueller and Bell were preparing to leave, Angie asked if she could accompany

them. Driving Angie’s minivan, Mueller picked up Kohlmeyer before crossing over the

Ohio River into Kentucky. They arrived in Henderson after midnight, retrieved Watt, and

immediately journeyed back to Evansville. Along the way, the four men smoked some of

the “dro” (i.e., marijuana) that Watt had procured from his supplier earlier that evening.

(Tr. p. 368).



                                             3
       When they reached Evansville, Mueller drove to Timothy Rice’s (Rice) house on

New York Street. Angie and Watt waited in the minivan as Mueller, Bell, and Kohlmeyer

spoke with Rice about whether he knew anyone who might want to purchase marijuana.

Kohlmeyer waited on the porch while Mueller and Bell went inside the house with Rice

for a few minutes. The three returned to the minivan, and Mueller drove to a house on

Denby Avenue. There, Bell told Watt to measure out “a few grams of weed.” (Tr. p. 404).

Watt weighed and packaged the marijuana and accompanied Mueller and Bell to the house.

Watt returned a few minutes later, telling Kohlmeyer that the buyer “wanted to see it on

the scales.” (Tr. p. 405). Watt then stated that “something didn’t feel right” and asked

Kohlmeyer to take the scales inside for him, but Mueller and Bell had already returned to

the vehicle. (Tr. p. 405).

       By this time, it was nearly 3:00 AM on September 17, 2012, and Mueller and Bell

agreed to drive Kohlmeyer and Watt to Kohlmeyer’s girlfriend’s apartment. Mueller

parked near a vacant property on Delaware Street, approximately one block away from the

girlfriend’s home. Although the precise details are indeterminate, it is apparent that a

scuffle ensued after the men exited the vehicle. Mueller suddenly withdrew a heretofore

concealed gun from his waistband and aimed it at Watt. When Watt took off running, Bell

instructed Mueller to “shoot” and Mueller pulled the trigger. (Tr. p. 78). After Watt fell

to the ground, Mueller used the gun to strike Watt’s head.

       Residents on Delaware Street heard the gunshot. The sound woke Mercedes

Jackson, who looked out her window to see “[a] light colored van speed off and a white

male running down the alley.” (Tr. p. 291). When Ronald (Ronald) and Rebecca

                                            4
(Rebecca) Motteler heard the gunshot, Rebecca went to her window and observed the

silhouettes of four individuals huddled together on the sidewalk. She heard laughing and

someone with a “higher pitched voice” say, “[S]erves you right for ripping me off.” (Tr.

p. 266). Rebecca also witnessed as “the most slender one of the four” individuals pulled

Watt’s pants down. (Tr. p. 266). The group drove off, and Rebecca called the police.

Ronald went outside to find Watt face down on the ground, with his pants pulled down to

expose his buttocks. Watt had lacerations on his face and hand, and there was an apparent

bullet hole in his back. Although Ronald initially heard “death rattle” breathing, he was

unable to detect Watt’s pulse. (Tr. p. 202). While investigating the crime scene, detectives

discovered a small bag of marijuana clutched in Watt’s hand.

       Following the shooting, Kohlmeyer had fled on foot through an alley to his

girlfriend’s apartment. When Mueller, Bell, and Angie returned to their apartment, they

were frantic. Mueller and Bell poured bleach over their clothing and destroyed their cell

phones. They then dumped everything in various alleys.

       Having retrieved information from Watt’s cell phone, the police took Kohlmeyer

into custody later that same morning. The police arrested Mueller and Bell on September

20, 2014. Bell waived his Miranda rights and identified Mueller as Watt’s killer. Bell also

claimed that Mueller had tossed the gun out of the minivan’s window either near a bakery

or into a creek. Police searched both areas, but the gun was never recovered. On September

21, 2012, the State filed an Information, charging Mueller with Count I, murder, I.C. § 35-

42-1-1(1); and Count II, conspiracy to commit robbery resulting in serious bodily injury, a

Class A felony, I.C. §§ 35-41-5-2; 35-42-5-1(1).

                                             5
       A four-day jury trial commenced on March 11, 2013.                   During the trial, the

pathologist who performed Watt’s autopsy testified that Watt died as the result of “a

gunshot wound to the heart.” (Tr. p. 226). Although several witnesses testified that

Mueller shot Watt in the back, the autopsy revealed that the bullet entered Watt’s chest,

went directly through his heart, and exited from his lower back. When the State rested its

case-in-chief, Mueller moved for a directed verdict on the conspiracy charge, which the

trial court denied. At the close of the evidence on March 14, 2013, the jury found Mueller

guilty as charged.1 On April 16, 2013, the trial court held a sentencing hearing and entered

a judgment of conviction for both Counts, but it reduced the conspiracy charge to a Class

C felony on double jeopardy grounds. Thereafter, the trial court sentenced Mueller to serve

sixty years for murder and five years for conspiracy to commit robbery in the Indiana

Department of Correction.          The trial court ordered that Mueller’s sentences run

consecutively for an aggregate term of sixty-five years.

       Mueller now appeals. Additional facts will be provided as necessary.

                               DISCUSSION AND DECISION

                                     I. Evidentiary Rulings

       Mueller first claims that the trial court abused its discretion by admitting three

“highly prejudicial” photographs into evidence and by excluding evidence of his co-

conspirator’s pending criminal charges. (Appellant’s Br. p. 8). The admissibility of




1
  In August of 2013, Bell was convicted of murder and conspiracy to commit robbery and was sentenced
to ninety years and six years, respectively. Our court issued a memorandum decision upholding his
conviction. Bell v. State, No. 82A04-1309-CR-478 (Ind. Ct. App. May 23, 2014).

                                                 6
evidence is a matter within the sound discretion of the trial court. Jackson v. State, 973

N.E.2d 1123, 1127 (Ind. Ct. App. 2012), trans. denied. We review the trial court’s

evidentiary rulings for an abuse of discretion. Id. It is an abuse of discretion if “the trial

court’s decision is clearly against the logic and effects of the facts and circumstances before

it.” Id.

       In general, evidence is admissible if it is relevant—that is, if it tends to make the

existence of any consequential fact more or less probable. Ind. Evidence Rules 401-402.

The trial court may, however, exclude relevant evidence “if its probative value is

substantially outweighed by the danger of unfair prejudice.” Corbett v. State, 764 N.E.2d

622, 627 (Ind. 2002). Any “[e]rrors in the admission or exclusion of evidence are to be

disregarded as harmless error unless they affect the substantial rights of the party.”

Swingley v. State, 739 N.E.2d 132, 134 (Ind. 2000). In determining whether an error is

harmless, we “must assess the probable impact of that evidence upon the jury.” Id.

                                      A. Photographs

       Mueller challenges the admission of one photograph taken during Watt’s autopsy,

which depicts the heart torn open inside of his chest cavity (State’s Exhibit 49), and two

photographs taken during Watt’s life, one of which is a portrait of Watt from the chest up

(State’s Exhibit 56) and the other is his Kentucky identification card (State’s Exhibit 120).

As an initial matter, Mueller concedes that he did not object to the admission of any of the

three photographs during the trial. “To preserve an issue regarding the admission of

evidence for appeal, the complaining party must have made a contemporaneous objection

to the introduction of the evidence at trial.” Oldham v. State, 779 N.E.2d 1162, 1170 (Ind.

                                              7
Ct. App. 2002), trans. denied. The failure to object waives the issue for our review.

Halliburton v. State, 1 N.E.3d 670, 678 (Ind. 2013). Nevertheless, Mueller maintains that

our court may properly hear his claim because the admission of the photographs, both

individually and cumulatively, amounts to fundamental error.

       The fundamental error doctrine is an extremely narrow exception to “the general

rule that the failure to object at trial constitutes procedural default precluding consideration

of the issue on appeal.” Id. The fundamental error doctrine serves to rectify “egregious”

errors; thus, it “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.” Id. (quoting Mathews v. State, 849 N.E.2d 578, 587

(Ind. 2006)). The alleged error “must either make a fair trial impossible or constitute

clearly blatant violations of basic and elementary principles of due process.” Id. (quoting

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

       We first note that Mueller did more than merely fail to object to the admission of

the photographs during the trial. On February 26, 2013, during a pre-trial evidentiary

hearing, Mueller, via his attorney, informed the trial court and the State that he had no

objections to the photographs “based on gruesomeness or anything like that.” (Pre-Trial

Hearing Tr. p. 13). Then, during another hearing on March 8, 2013, Mueller requested that

the trial court ask questions during voir dire about the potential jurors’ “ability to handle

graphic photographs.” (Tr. p. 5). Mueller clarified that his sole concern was ensuring the

jurors were equipped to view the images because “almost every photograph . . . is relevant

and admissible and . . . I’m not even going to object to anything with regard to

                                               8
photographs.” (Tr. p. 8). Finally, when the State admitted photographs of the “property

that was located during the autopsy” into evidence, which included Watt’s identification

card, Mueller “agree[d] [that] they should be admitted.” (Tr. pp. 548-49). See Halliburton,

1 N.E.3d at 679 (“‘The appellant cannot on the one hand state at trial that he has no

objection to the admission of evidence and thereafter in this [c]ourt claim such admission

to be erroneous.’” (quoting Harrison v. State, 281 N.E.2d 98, 100 (Ind. 1972))). The

fundamental error doctrine presupposes that the trial court erred in its admissibility ruling.

Id. Here, Mueller repeatedly informed the trial court that he had no objections to the

photographs. Because the trial court was not obligated to overrule their admission sua

sponte, we find no “egregious” error to warrant invoking the fundamental error doctrine.

See id.

          Moreover, we find Mueller’s fundamental error arguments to be unpersuasive.

Mueller insists that “[t]he admission of highly prejudicial photographs implicate[s] [his]

fundamental rights.” (Appellant’s Br. p. 14). To this end, he asserts that the State’s Exhibit

49 is “gruesome and highly prejudicial[,]” and “the jury may have blamed Mueller for the

grotesque state of Watt’s body.” (Appellant’s Br. p. 16). Likewise, he contends that the

State’s Exhibits 56 and 120 are irrelevant and “highly prejudicial.” (Appellant’s Br. p. 18).

We will address each photograph in turn.

                       1. State’s Exhibit 49—The Autopsy Photograph

          An autopsy photograph that depicts “the body in an altered condition” is generally

inadmissible. Custis v. State, 793 N.E.2d 1220, 1225 (Ind. Ct. App. 2003), trans. denied.

However, there are exceptions if “some alteration of the body is necessary to demonstrate

                                              9
the testimony being given.” Id. In the case at hand, the pathologist relied on the State’s

Exhibit 49 during his testimony to explain the cause of Watt’s death. See Swingley, 739

N.E.2d at 134 (finding the probative value of an autopsy photograph in which the

pathologist “had opened the wound to show the blood vessels that had been cut (resulting

in death)” outweighed its prejudicial effect). Several witnesses testified that Watt was shot

in the back, so the pathologist used Exhibit 49 to describe the trajectory of the bullet, which

actually entered Watt’s chest. Furthermore, because the jury viewed the photographs taken

at the crime scene depicting the entrance and exit wounds on Watt’s unaltered body, and

the pathologist explained that he had opened the chest cavity, we find it unlikely that the

jury imputed the pathologist’s cuts and manipulation of Watt’s body to Mueller. See

Fentress v. State, 702 N.E.2d 721, 722 (Ind. 1998). Accordingly, we find no error, let

alone fundamental error, in the admission of the State’s Exhibit 49.

2. State’s Exhibits 56 and 120—Photographs Preceding Watt’s Death

       Mueller challenges the relevance of Watt’s identification card and his portrait

because Watt’s identity was not at issue during the trial. The State contends that the

photographs are relevant to show that Watt was alive before Mueller murdered him. We

find that the State’s Exhibit 56 is only marginally relevant because all of the witnesses

agreed that Watt was alive prior to the night in question. See Pittman v. State, 885 N.E.2d

1246, 1256 (Ind. 2008). Because this evidence is merely cumulative, however, any error

is deemed harmless. Kilpatrick v. State, 746 N.E.2d 52, 58 (Ind. 2001). We find that the

State’s Exhibit 120 is relevant. A contested issue at trial was whether Mueller had, in fact,

taken any property from Watt. The State’s Exhibit 120 evidences one of the items found

                                              10
during Watt’s autopsy and could give rise to an inference regarding the absence of other

personal property.

       Mueller also contends that the photographs are highly prejudicial because “[t]he

natural inclination when viewing such a photo is to feel deep sympathy for Watt’s father

over his pain and loss.” (Appellant’s Br. p. 18). While we recognize that the “perpetrators

of such acts are not entitled to have their deeds completely sanitized when evidence is

submitted to a jury[,]” we find that the juxtaposition of the photographs of Watt as a healthy

young adult with the pictures of his slain body could have elicited an emotional response

from the jury. Shelton v. State, 490 N.E.2d 738, 743 (Ind. 1986). Nevertheless, we find

that any resulting prejudice from the admission of the State’s Exhibits 56 and 120 did not

inhibit Mueller’s right to a fair trial or due process. See Pittman, 885 N.E.2d at 1256.

Based on the testimony from three eyewitnesses that Mueller shot Watt, along with the

evidence describing Mueller’s conduct before and after Watt’s murder, we find it

improbable that the admission of the State’s Exhibits 56 and 120 impacted the jury’s

verdict. Accordingly, any error would be harmless and not fundamental.2

                       B. Pending Charges of Witness/Co-Conspirator

       Mueller argues that the trial court violated his Sixth Amendment right to confront

the witnesses against him by excluding evidence of Bell’s pending criminal charges.

Pursuant to Indiana Evidence Rule 609, evidence of prior criminal convictions is

admissible, subject to certain limitations, to impeach a witness’ credibility. Charges that


2
  Finding no error in the admission of any single photograph, we do not address Mueller’s cumulative
error argument.

                                                  11
have not been reduced to convictions are generally not admissible to impeach a witness.

Becker v. State, 695 N.E.2d 968, 973 (Ind. Ct. App. 1998).

       In this case, the trial court permitted Mueller to introduce evidence of Bell’s pending

charges for murder and conspiracy to commit robbery, which arose from the same

underlying events as Mueller’s case. However, the trial court denied admission of Bell’s

convictions and pending charges in ten other cases. Mueller now claims that the trial court

abused its discretion by excluding the pending charges in two of those cases, which include

failure to appear, burglary, theft, and habitual offender charges. By excluding evidence of

Bell’s pending charges, Mueller maintains that the trial court precluded him from

“prob[ing] Bell’s involvement in the murder and [] expos[ing] why he would want to

implicate Mueller during his testimony.” (Appellant’s Br. p. 23).

       “[O]ne of the fundamental rights of our criminal justice system” is the right to cross-

examine witnesses pursuant to the Sixth Amendment to the United States Constitution.

Smith v. State, 721 N.E.2d 213, 218-19 (Ind. 1999). The right of cross-examination is

realized if the defendant has an opportunity to elicit matters such as a witness’ bias. Jarrell

v. State, 852 N.E.2d 1022, 1027 (Ind. Ct. App. 2006). The Sixth Amendment “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 (1985) (per curiam). A violation of this right will not warrant a new trial

where the error is harmless. Smith, 721 N.E.2d at 219. In order to ascertain whether an

error is harmless, courts consider numerous factors, “including the strength of the

prosecution’s case, and the importance of the witness’ testimony, whether the testimony

                                              12
was corroborated, the cross-examination that did occur, and whether the witness’ testimony

was repetitive.” Id.

       Evidence Rule 609 precludes impeachment of a witness with evidence of pending

charges, but “[t]he questioning of witness bias presents a different set of issues, and

pending charges that are the basis of an arrangement with the witness are a proper subject

of cross-examination.” Id. Mueller relies on Smith v. State, 721 N.E.2d at 219, where our

supreme court held it was an abuse of discretion for the trial court to prohibit the defendant

from questioning a witness “about her pending charges and any possible bias.” The Smith

court also found that it exceeded harmless error for the trial court to deny the defendant the

right to question another witness about his pending charges and his arrangement with the

prosecutor. Id. at 220. We find Smith to be sufficiently distinct from the present case.

       Here, Mueller’s examination of Bell was direct, not cross, examination. Outside of

the jury’s presence, Mueller requested permission of the trial court to question Bell about

his pending criminal charges. At that time, the State verified that “[t]here is not and there

has not been” any agreement in exchange for Bell’s testimony. (Tr. p. 780). See Smith,

721 N.E.2d at 219. The trial court ruled that Mueller was limited to asking Bell about his

charges as the co-conspirator and informed him that he could “question [Bell] as to whether

he anticipates receiving some sort of favor or preferential treatment as a result of his

testimony.” (Tr. p. 781). Thus, unlike in Smith, the trial court did not cut off “all inquiry

into the possibility” of Bell’s biases. Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

In fact, Mueller chose not to question Bell about whether he was receiving any benefit from

the State for testifying. Also, the trial court permitted evidence of Bell’s pending charges

                                             13
related to the instant case, noting that Mueller had “made [his] point that [Bell is] facing

very serious charges himself so I think that impeachment has been accomplished.” (Tr. p.

779). It is well settled that trial courts “retain wide latitude insofar as the Confrontation

Clause is concerned to impose reasonable limits on such cross-examination[,]” and we find

it was well within the discretion of the trial court to curtail admission of the pending

charges. Van Arsdall, 475 U.S. at 679.

       Moreover, even if the trial court had erred in refusing to admit Bell’s other pending

charges, we would find it to be harmless error. Bell’s testimony was inconsistent and

contradicted that of the other witnesses, and it is clear that the jury did not rely upon his

statements in reaching its verdict. Accordingly, we conclude the trial court did not abuse

its discretion by excluding evidence of Bell’s additional pending charges.

              II. Sufficiency of Evidence for Conspiracy to Commit Robbery

       Mueller claims that there is insufficient evidence to uphold his conviction for

conspiracy to commit robbery, a Class C felony. When reviewing the sufficiency of the

evidence to support a conviction, we do not reweigh evidence or assess the credibility of

witnesses. Drakulich v. State, 877 N.E.2d 525, 531 (Ind. Ct. App. 2007), trans. denied.

We will consider only the evidence most favorable to the verdict, along with any reasonable

inferences derived therefrom. Id. We will affirm a conviction where “evidence of

probative value exists from which a jury could find the defendant guilty beyond a

reasonable doubt.” Fry v. State, 748 N.E.2d 369, 373 (Ind. 2001).

       In Indiana, an individual is guilty of robbery if he “knowingly or intentionally takes

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

                                             14
threatening the use of force on any person.” I.C. § 35-42-5-1(1). To support Mueller’s

conviction on a conspiracy basis, the State had to prove that Mueller, with the intent to

commit robbery, agreed with another person to commit the robbery and that either Mueller

or Bell “performed an overt act in furtherance of the agreement.” I.C. § 35-41-5-2.

Evidence of an express agreement is not required; rather, “‘[i]t is sufficient if the minds of

the parties meet understandingly to bring about an intelligent and deliberate agreement to

commit the offense.’” Drakulich, 877 N.E.2d at 531-32 (quoting Porter v. State, 715

N.E.2d 868, 870-71 (Ind. 1999)). The agreement may be established through “either direct

or circumstantial evidence, including the acts of the parties to the agreement.” Id. at 532.

Evidence that the defendant is merely associated with the co-conspirator, without more, is

insufficient to prove conspiracy. Id.

       Mueller argues that there is insufficient evidence of an agreement with Bell to

uphold his conspiracy conviction. We disagree. The evidence most favorable to the jury’s

verdict establishes that Knott overheard Mueller and Bell make plans to rob Watt of his

marijuana.   In furtherance of this objective, Mueller and Bell called a third party,

purportedly Watt, to ask about marijuana prices and also called Mueller’s half-brother to

gather information about Watt. Kohlmeyer testified that Watt had fifteen grams—or “half

an ounce”—of marijuana, which had a street value of “[a]round $300.” (Tr. pp. 396-97).

Based on Knott’s testimony that Mueller and Bell asked about the price of “a half ounce”

of marijuana, it is apparent that they were aware of the quantity in Watt’s possession before

they left their apartment that night. (Tr. p. 154).



                                              15
       During the trial, Angie testified that Mueller and Bell obtained the gun when they

stopped at Rice’s house shortly before Watt’s murder. When Mueller parked the minivan

in front of an abandoned property on the dimly-lit Delaware Street, Watt tried to walk

away; there is no evidence that he threatened or otherwise provoked Mueller before

Mueller withdrew the gun and aimed it at Watt. Thus, considering all of the other evidence,

it was reasonable for the jury to infer that Mueller and Bell acquired the gun in order to

ensure that Watt would give them the marijuana. The fact that several witnesses testified

that Bell directed Mueller to “shoot” supports the finding that Mueller and Bell had an

agreement to rob Watt. (Tr. p. 78). See Forney v. State, 742 N.E.2d 934, 937-38 (Ind.

2001) (noting that the jury had reasonably found that a co-conspirator’s “instruction to ‘get

the money’” “was uttered in furtherance of [a robbery] agreement”). Angie’s testimony

that, following the shooting, Mueller explained that “[i]t wasn’t supposed to happen like

that” is also indicative of a pre-arranged robbery plan. (Tr. p. 84).

       While there is evidence to contradict the finding of a conspiracy, including

testimony that Knott did not actually hear Mueller and Bell devising a robbery plan and

testimony that Mueller and Bell never agreed to obtain a gun and steal Watt’s drugs, it is

not the role of this court to reweigh the evidence. See Boyce v. State, 736 N.E.2d 1206,

1208 (Ind. 2000). Witnesses presented drastically different versions of how the events

unfolded that night, and we defer to the jury’s determination of credibility. Because the

record contains sufficient evidence and reasonable resulting inferences of an agreement

between Mueller and Bell, we affirm Mueller’s conviction of conspiracy to commit

robbery, a Class C felony.

                                             16
                              III. Abuse of Sentencing Discretion

          Mueller next claims that the trial court abused its discretion in sentencing him to

serve sixty-five years. “[S]entencing decisions rest within the sound discretion of the trial

court and are reviewed on appeal only for an abuse of discretion.” Anglemyer v. State, 868

N.E.2d 482, 490 (Ind. 2007), clarified on reh’g. We will find an abuse of discretion where

“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.

The trial court may abuse its discretion by failing to enter a sentencing statement,

identifying aggravating and mitigating factors that are unsupported by the record, failing

to consider circumstances that are clearly supported by the record, or by citing reasons that

“are improper as a matter of law.” Id. at 490-91. An abuse of discretion cannot be based

upon the trial court’s determination of the weight to be accorded to the various factors. Id.

at 491.

          In Mueller’s case, the trial court imposed a sixty-year sentence for murder and a

five-year sentence for conspiracy to commit robbery.           Both of these sentences are

authorized by statute. See I.C. § 35-50-2-3(a) (requiring a fixed term of forty-five to sixty-

five years for murder, with the advisory sentence being fifty-five years); I.C. § 35-50-2-

6(a) (requiring a fixed term of two to eight years for a Class C felony, with the advisory

sentence being four years). In making its decision, the trial court stated:

          There was absolutely no reason for this to have happened. The time [Watt]
          was murdered he was not doing anything to [Mueller]. He was no threat to
          [Mueller]. He had not been any threat to [Mueller]. He had done nothing
          that evening to cause [Mueller] any problem. At the time he was murdered
          he was running from [Mueller]. [Mueller] shot him in the back. All he was

                                              17
       trying to do was get away from [Mueller’s] display of deadly force. I find
       that aggravating. There’s no explanation that makes any sense here as to
       why [Mueller] would feel it necessary to shoot this young man in the back as
       he was running away from [Mueller]. All he wanted to do was leave the
       scene. So the nature and circumstances . . . of the crime are aggravated. Also
       it was committed in the course of a deliberately planned conspiracy to rob
       [Watt] of his property. It was not something that happened on the spur of the
       moment. This is not something of a brief instant of misjudgment or youthful
       indiscretion. This was a preplanned deliberate crime that [Mueller] and
       [Bell] agreed to commit here. [Mueller’s] criminal record is an aggravating
       circumstance though not as extensive as some the [c]ourt has seen. It does
       contain a number of convictions including prior felony convictions that are
       of concern to the [c]ourt. [Mueller has] a not insignificant juvenile record
       also. On a number of occasions [he has] failed either community corrections
       program of some kind that had provided [Mueller] with an opportunity to set
       [his] life straight and [he] didn’t follow through with that. The [c]ourt feels
       that a sentence—I agree with the [State]. A sentence above the standard
       sentence is called for in this case.

(Tr. pp. 943-45). Mueller claims that the trial court abused its discretion because it should

not have considered that Mueller preplanned the robbery or his juvenile history as

aggravating factors, and it failed to take Mueller’s expression of remorse into account as a

mitigating circumstance.

                            A. Improper Aggravating Factors

       Mueller asserts that the trial court improperly considered the preplanning of his

crime as an aggravating factor because it is a material element of one of his convicted

offenses. The Indiana Supreme Court has determined that “[a] factor constituting a

material element of a crime cannot be considered an aggravating circumstance in

determining [the] sentence.” Johnson v. State, 687 N.E.2d 345 (Ind. 1997). Although we

agree with Mueller that the trial court should not have considered the agreement between

Mueller and Bell because it is an element of the conspiracy charge, it would not have been


                                             18
improper for the trial court to consider Mueller’s planning and preparation as an

aggravating factor. See Taylor v. State, 695 N.E.2d 117, 119-20 (Ind. 1998). Furthermore,

because the trial court made a separate statement when it ordered Mueller’s five-year

sentence for conspiracy, citing his criminal record and the nature and circumstances of the

crime as warranting the enhancement, it appears that the trial court’s reference to Mueller’s

agreement with Bell related solely to Mueller’s murder sentence.

        Nevertheless, only one valid aggravating circumstance is necessary to support an

enhanced sentence. Sargent v. State, 875 N.E.2d 762, 769 (Ind. Ct. App. 2009). Even if

one aggravating factor is found to be improper, the enhancement may be upheld if there is

another valid aggravating circumstance. Id. Our courts have long found the seriousness

of the offense, “which implicitly includes the nature and circumstances of the crime as well

as the manner in which the crime is committed,” to be a valid aggravating factor.

Anglemyer, 868 N.E.2d at 492. In Mueller’s case, we find that the trial court properly

identified the seriousness of his offense as an aggravating factor to justify enhancing both

sentences.3

                                   B. Omitted Mitigating Factor

        Mueller also asserts that the trial court failed to consider his expression of remorse

as a mitigating factor. The trial court is vested with the sound discretion to determine

whether a factor is mitigating, and the trial court is under no obligation to explain its

rationale for declining to find a proffered factor as mitigating. Stout v. State, 834 N.E.2d


3
 Because we find the trial court identified at least one valid aggravating factor, we need not address
Mueller’s argument that the trial court improperly considered his juvenile history.

                                                    19
707, 710 (Ind. Ct. App. 2005), trans. denied. Our supreme court has determined that a trial

court’s assessment of a defendant’s remorse is subject to the same standard as a credibility

determination. Pickens v. State, 767 N.E.2d 530, 535 (Ind. 2002). Absent evidence of the

trial court’s “impermissible consideration” of a factor, we will adopt its credibility

determinations. Id. at 534-35.

       In alleging that the trial court failed to find his expression of remorse as a mitigating

factor, Mueller must “establish that the mitigating evidence is both significant and clearly

supported by the record.” Anglemyer, 868 N.E.2d at 493. Mueller cites his declaration

immediately following the murder that it was an accident, along with his sentencing

statements, to argue that his remorse is supported by “overwhelming evidence.”

(Appellant’s Br. p. 33). Prior to his sentencing hearing, Mueller wrote a letter to the trial

court, in which he expressed, in part:

       I am trul[]y sorry for what happened to [Watt,] and I feel [] for his family’s
       loss. . . . [A] mistake was made that wasn’t suppose[d] to happen. I’m sorry
       for what happened to [Watt] and I know that don’t bring him back but it’s
       true.

(Appellant’s App. pp. 66-67). In addition, Mueller stated at the hearing, “I just want to say

that I’m sorry for what happened. I’m not a bad person. Mistakes were made. I wish

everything was different but it happened. I’m sorry and that’s it.” (Tr. p. 931). Even

though the trial court did not identify any mitigating factors, it twice stated during the

sentencing hearing that it had reviewed Mueller’s letter. Thus, the trial court clearly

considered Mueller’s expression of remorse and acted within its discretion to reject it as a




                                              20
significant mitigating factor. See Amalfitano v. State, 956 N.E.2d 208, 212 (Ind. Ct. App.

2011), trans. denied.

                             IV. Appropriateness of Sentence

       Finally, Mueller claims that his sixty-five year sentence is inappropriate in light of

his character and the nature of the offense. Pursuant to Appellate Rule 7(B), our court

“may revise a sentence authorized by statute” upon our finding “that the sentence is

inappropriate in light of the nature of the offense and the character of the offender.” The

purpose of our sentence review “is not to determine ‘whether another sentence is more

appropriate’ but rather ‘whether the sentence imposed is inappropriate.’” Conley v. State,

972 N.E.2d 864, 876 (Ind. 2012). We are mindful of the deference owed to the trial court

in sentencing matters. Thus, “our principal role is to ‘leaven the outliers’ rather than

necessarily achieve what is perceived as the ‘correct’ result.” Id. (quoting Cardwell v.

State, 895 N.E.2d 1219, 1225 (Ind. 2008)). The defendant bears the burden of persuading

our court that his sentence is inappropriate. Id.

       The nature of the instant offense is that Mueller shot a man who was trying to run

away and subsequently hit him in the head with the gun. Along with his co-conspirator,

Mueller sought out information regarding Watt’s drug supply and Watt’s character. After

picking Watt up in Henderson, Mueller and Bell drove around for several hours, smoking

Watt’s marijuana and having him package it to sell to their acquaintances. Watt was

waiting in the minivan as Mueller and Bell procured a gun, and he was simply trying to

leave with Kohlmeyer when Mueller ambushed him. When Watt ran, Mueller shot him in

the back (although the bullet entered Watt’s chest based on the way he turned). After

                                             21
shooting Watt, Mueller fled. He attempted to eliminate the traces of his guilt by discarding

the gun, pouring bleach on his clothing, smashing his cell phone, and dumping the clothes

and cell phone pieces in random alleys. Without any provocation, Mueller murdered the

friend of his friend over marijuana.

       As to the character of the offender, Mueller dropped out of high school in the tenth

grade but later obtained his GED. He began consuming alcohol at age ten and was drinking

heavily in the months preceding his arrest. Mueller also began using drugs at age twelve.

In addition to smoking approximately half of an ounce of marijuana per day, Mueller also

used ecstasy and Xanax on a regular basis.

       Mueller’s substance abuse problems are reflected in his significant criminal history.

As an adult, he has been convicted of two Class D felonies, one for possession of a

controlled substance and the other for intimidation. His criminal resume also includes

misdemeanor convictions for public intoxication, possession of marijuana, illegal

consumption of an alcoholic beverage, carrying a handgun without a license, and false

informing. Mueller’s hefty juvenile history consists of two Class C felonies, one for

criminal recklessness after he shot a firearm into a gathering place, and the other for

burglary. His juvenile misdemeanor offenses include operating a vehicle while intoxicated,

public intoxication (twice), two Counts of battery resulting in bodily injury, resisting law

enforcement, and disorderly conduct. Several of Mueller’s offenses were committed while

he was on probation for another crime, and his participation in the Alcohol Abuse Probation

Services was revoked.



                                             22
       Although the instant offense is his most serious, Mueller’s propensity for violence

and his disregard for the laws relating to firearms began at an early age. Despite Mueller’s

numerous drug and alcohol-related arrests and incarcerations, it is clear that he does not

appreciate the deleterious effects of his substance abuse. He rejected several opportunities

to straighten out his life; instead, he became so consumed by his drug use that he killed

another human being in order to acquire what is, for him, only a one-day supply of

marijuana. We therefore find that Mueller’s sentence is appropriate in light of his character

and the nature of this offense.

                                      CONCLUSION

       Based on the foregoing, we conclude that the trial court did not commit fundamental

error in its evidentiary rulings; there is sufficient evidence to uphold Mueller’s conviction

for conspiracy to commit robbery; the trial court did not abuse its sentencing discretion;

and Mueller’s sentence is appropriate.

       Affirmed.

ROBB, J. and BRADFORD, J. concur




                                             23
