ATTORNEY FOR APPELLANT                                            ATTORNEYS FOR APPELLEE
Marce Gonzalez, Jr.                                               Gregory F. Zoeller
Dyer, Indiana                                                     Attorney General of Indiana

                                                                  James B. Martin
                                                                  Deputy Attorney General
                                                                  Indianapolis, Indiana
______________________________________________________________________________

                                                 In the                               FILED
                               Indiana Supreme Court                               Jul 31 2012, 1:25 pm

                               _________________________________                            CLERK
                                                                                         of the supreme court,
                                                                                         court of appeals and
                                                                                                tax court

                                       No. 45S00-1102-LW-110

        ENGELICA E. CASTILLO,                                     Appellant (Defendant below),

                                                    v.

        STATE OF INDIANA,                                Appellee (Plaintiff below).
                               _________________________________

                      Appeal from the Lake Superior Court, No. 45G04-0906-MR-5
                              The Honorable Thomas Stefaniak, Jr., Judge
                                _________________________________

                                              July 31, 2012

Dickson, Chief Justice.


        Prosecuted for the heinous death of Jada Justice, her two-year-old cousin, Engelica Cas-
    1
tillo was convicted of one count of Murder, two counts of class A felony Neglect of a Depend-
ent, one count of class A felony Battery, and one count of class A misdemeanor False Informing.
She was sentenced to life imprisonment without the possibility of parole for Murder plus a total
of five additional years for the other crimes. On direct appeal, she challenges her sentence of life
without parole for Murder, asserting two claims: (1) sentence inappropriateness and (2) prosecu-
torial misconduct during the sentencing phase of her trial. For reasons expressed below, we con-



        1
         Castillo was eighteen years old at the time of the crime and twenty years old at the time of her
sentencing.
clude that the appropriate sentence for this defendant's conviction for Murder is a term of sixty-
five (65) years.


        The dead body of two-year-old Jada Justice was recovered from a swampy body of water
near LaPorte, Indiana, on June 24, 2009. At the time of her death, Jada was staying with her
mother's first cousin, Engelica Castillo, and Castillo's then-boyfriend, Timothy J. Tkachik. Ac-
cording to the testimony of Castillo and of Tkachik, Jada died on June 13, 2009, while riding in
Tkachik's vehicle or shortly thereafter. The exact cause of death was disputed at trial. Addition-
al facts will be supplied as necessary.


        On June 26, 2009, the State charged the defendant and Tkachik each with (1) Murder, a
felony under Indiana Code Section 35-42-1-1, (2) two counts of Neglect of a Dependent as a
class A felony under Indiana Code Section 35-46-1-4, (3) Battery as a class A felony under Indi-
ana Code Section 35-42-2-1, and (4) False Informing as a class A misdemeanor under Indiana
Code Section 35-44-2-2. On September 18, 2009, the State amended the charges against the de-
fendant, reducing the Battery count to a class D felony and requesting that a sentence of life
without the possibility of parole be imposed on the defendant for the Murder charge based on the
fact that the victim was less than 12 years of age at the time of her death.2 Tkachik entered into a
plea agreement with the State on June 21, 2010, whereby he pled guilty to two counts of class A
felony Neglect of a Dependent and agreed to cooperate in the defendant's prosecution and testify
against her at trial. In exchange, the State agreed to dismiss the counts charging Tkachik with
Murder, class A felony Battery, and False Informing and agreed to request a sentence of no more
than 50 years for each count with any sentences to be served concurrently.3 The defendant, Cas-
tillo, was tried before a jury and found guilty on all counts. At the sentencing phase of her trial,
the jury recommended a sentence of life without the possibility of parole. Accordingly, the trial
court sentenced the defendant to the Indiana Department of Corrections for life without the pos-
sibility of parole for the count of Murder, for an additional two years for each count of Neglect


        2
           A sentence of life without the possibility of parole can only be sought for murder where the
State identifies the existence of at least one statutorily defined aggravating circumstance. Ind. Code § 35-
50-2-9(a). One such aggravating circumstance is that "The victim of the murder was less than twelve (12)
years of age." Id. § 35-50-2-9(b)(12).
         3
           As of the date of Castillo's sentencing, Tkachik had not yet been sentenced.


                                                     2
of a Dependent, and for an additional one year for the count of False Informing. The count of
Battery was vacated. All sentences were ordered to be served consecutively. The defendant then
filed this direct appeal on October 12, 2010.4


                  1. Appropriateness of Life without the Possibility of Parole


        The defendant first contends that her sentence for Murder—life imprisonment without the
possibility of parole—is inappropriate in light of the maximum possible sentence—fifty-years'
imprisonment—faced by her codefendant, Tkachik, as a result of his plea agreement.


        The Indiana Constitution grants this Court "in all appeals of criminal cases, the power to
review all questions of law and to review and revise the sentence imposed." Ind. Const. art. 7,
§ 4. We may exercise this power even where the trial court has acted within its lawful discre-
tion.5 Buchanan v. State, 767 N.E.2d 967, 972 (Ind. 2002). This power "reserv[es] for the appel-
late court the chance to review the matter in a climate more distant from local clamor." Serino v.

        4
          Pursuant to Indiana Appellate Rule 4(A)(1)(a), we have "mandatory and exclusive jurisdiction"
over "Criminal Appeals in which a sentence of death or life imprisonment without parole is imposed un-
der Ind.Code § 35-50-2-9. . . ."
        5
          The independent nature of the review and revise power granted by Article 7, Section 4, is appar-
ent from the legislative history of the provision:
                 The framers of the constitutional reform of which section 4 was a part provided explicitly
        for reference to certain historical materials in interpreting its meaning: "The report of the Judicial
        Study Commission and the comments to the article contained therein may be consulted by the
        Court of Justice to determine the underlying reasons, purposes, and policies of this article and
        may be used as a guide in its construction and application." Ind. Const. art. VII, Schedule (Burns
        1978 Ed.). The Commission's report describes the origin and scope of the power to review and
        revise sentences contained in section 4: "The proposal that the appellate power in criminal cases
        include the power to review sentences is based on the efficacious use to which that power has
        been put by the Court of Criminal Appeals in England." Report of the Judicial Study Commis-
        sion 140 (1967). The English statute establishing the Court of Criminal Appeals set forth that
        court's power to review and revise sentences as follows:
                 On appeal against sentence the Court of Criminal Appeal shall, if they think that a differ-
                 ent sentence should have been passed, quash the sentence passed at the trial, and pass
                 such other sentence warranted in law by the verdict (whether more or less severe) in sub-
                 stitution therefor [sic] as they think ought to have been passed, and in any other case shall
                 dismiss the appeal.
        Criminal Appeal Act, 1907, 7 Edward 7, ch. 23, § 4(3).
Cooper v. State, 540 N.E.2d 1216, 1218 (Ind. 1989). For a further explication of the history of Article 7,
Section 4, in relation to the criminal law and procedure of England, see McCullough v. State, 900 N.E.2d
745, 747–50 (Ind. 2009).


                                                      3
State, 798 N.E.2d 852, 856–57 (Ind. 2003). We have chosen to implement this constitutional
power using Indiana Appellate Rule 7(B). Childress v. State, 848 N.E.2d 1073, 1079 (Ind.
2006); Buchanan, 767 N.E.2d at 972–73. This rule provides that "[t]he Court may revise a sen-
tence 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 of-
fender." App. R. 7(B).


        It is the nature of the offense, not the character of the defendant, which provides the
strongest consideration in favor of revising the defendant's sentence in this case. At trial, the ju-
ry was only presented with two possible grounds on which it could convict the defendant of
Murder: (1) that the defendant knowingly or intentionally killed the victim or (2) that the defend-
ant aided, induced, or caused the commission of Murder by another, namely the defendant's boy-
friend.6 Of these two alternative grounds, we find that the evidence was insufficient for a rea-
sonable jury to conclude that the defendant knowingly or intentionally killed the victim but that
it was sufficient for the jury to find her guilty as an accomplice.7


        With respect to the nature of the crime, the evidence most favorable to the defendant's
sentence reveals the following: At the time of the events leading to this case, the victim was stay-
ing with the defendant and the defendant's boyfriend at their home. The victim was scheduled to
stay there from June 8 through June 21 of 2009. The first few days of the victim's visit were rel-

        6
           Another basis for liability was potentially implicated by the fact that the defendant and her boy-
friend failed to seek professional medical assistance for the victim when they realized she had stopped
breathing. Under Indiana Code Section 35-41-2-1(a), a person can commit an offense by failing to act
"only if [s]he has a statutory, common law, or contractual duty to perform the act." In this case, no evi-
dence of any such affirmative duty was offered, nor was such a duty alleged in the charging information,
nor was any such duty included in the jury instructions. Therefore, the defendant's failure to act could not
have been the basis of the jury's verdict. Even if this basis for liability had been properly before the jury,
we would still conclude that the defendant's Murder conviction should be reduced from life without the
possibility of parole to a term of years in light of the undisputed evidence that the defendant attempted to
administer CPR to the victim. While these attempts to help are not heroic, they weigh heavily against a
conclusion that the defendant's actions exhibited a degree of depravity sufficient to warrant a sentence of
life without parole.
         7
           Where the sufficiency of the evidence is at issue, the question is whether "there is substantial ev-
idence of probative value such that a reasonable trier of fact could have concluded the defendant was
guilty beyond a reasonable doubt." Bailey v. State, 907 N.E.2d 1003, 1005 (Ind. 2009). We consider on-
ly the evidence favorable to the conviction and any reasonable inferences that can be drawn therefrom.
Id. We do not reweigh the evidence nor judge the credibility of witnesses. Id.


                                                      4
atively unremarkable. On the morning of June 12, the defendant and her boyfriend discovered
that the victim had taken a packet of powdered Hawaiian Punch mix and strawberries out of their
refrigerator without asking their permission. The defendant responded by yelling at and spank-
ing the victim and then wrapping twine around the refrigerator later in the day. The defendant's
boyfriend, who was present during nearly all of the events in question, testified that the rest of
that day was uneventful. The next morning, on June 13, the defendant discovered that the victim
had locked herself in her bedroom. After unlocking the door, the defendant found that the victim
had made a mess on the bedroom floor with syrup and powdered Hawaiian Punch packets that
the victim had found in the kitchen. Again, the defendant yelled at and spanked the victim and
then cleaned up the mess, pushing the victim aside roughly as she cleaned.


       Later in the day, around lunchtime, the defendant gave the victim a pre-packaged lunch to
eat. The victim did not eat much of it, mostly playing with the food and throwing pieces of it to
the dog. This made the defendant angry. As punishment, the defendant put the victim in a cor-
ner in the victim's bedroom and then, after cleaning the mess in the kitchen, sat on the couch
with her boyfriend in the living room. The defendant could see the victim in her bedroom from
the couch and, soon after sitting, noticed that the victim was no longer standing but instead sit-
ting down in the corner and playing with toys. The defendant then returned to the bedroom,
spanked the victim, and attempted to force her to stand upright by yanking her and holding her
upright by her arms. The defendant then went back to the living room and again sat on the
couch. Approximately five minutes later, the defendant again became irritated with the victim
and returned to the bedroom. The facts are not clear as to what exactly occurred during this con-
frontation, but the defendant's boyfriend testified that he could hear the defendant speaking in an
irritated tone to the victim when the door was closed and that, at one point when the door was
open, he saw the defendant holding the victim by the hair, poking her in the body, and slapping
her. At one point during this confrontation, the defendant brought the victim into the living room
and, with her boyfriend's help, spanked the victim several times on her bare bottom using a belt.
Approximately one and one-half hours after this confrontation began, the defendant came out of
the victim's bedroom and told her boyfriend that the victim had hit her head on a table in the bed-
room when the defendant had slapped her. The boyfriend testified that the victim sustained a
small cut above her right eye that bled only a small amount and that the defendant put a small



                                                  5
bandage over it. He also testified that he noticed red marks on the victim's face and bruises on
her buttocks around that same time.


       Shortly after the victim hit her head, the defendant's boyfriend became frustrated by the
ongoing confrontation between the victim and the defendant. He ran into the victim's bedroom
and "knuckled" the victim in the head "pretty hard" four to six times "hoping that everything
would stop after that." Tr. at 334–35. Afterward, the defendant continued to hold the victim by
the hair, yanking and pushing her, and eventually tied the victim to a chair with her boyfriend's
belts. She initially placed one belt around the victim's waist and another around her neck but
removed the belt from around the victim's neck after her boyfriend told her to do so. Still frus-
trated with the situation, the defendant's boyfriend then went to the gas station. When he arrived
home, he heard "boom, boom, boom, boom" coming from the victim's bedroom, but he couldn't
see what was causing the noise because the bedroom door was shut. Tr. at 341. He then made
plans to go to Chicago that evening to purchase heroin.


       Approximately thirty minutes later, the defendant and her boyfriend left for Chicago to
retrieve the heroin. The boyfriend testified that, while they were getting the victim ready to
leave, he noticed that the victim had a bruise on her face, that she seemed "out of it," and that she
was unable to hold her bottle while sitting in her carseat. Tr. at 344. The defendant wrapped the
victim in a blanket to hide the marks on her body because they were going to take a friend with
them to Chicago. Shortly after leaving the house, while driving on Interstate 94, the boyfriend
noticed that the victim's head was leaning down towards her chest with her eyes closed. He then
jumped in the back seat, found that she was not breathing, and attempted to administer CPR as
the defendant pulled off the road. At that point, the defendant and her boyfriend switched places,
and the defendant continued CPR while her boyfriend drove the truck back to their house. Once
they arrived home, they stopped administering CPR and left the victim in the backseat of the
truck covered with a tarp. Sometime later, they set off for Chicago again, without the victim.
The precise timing of the victim's death is unclear, but both the defendant and her boyfriend tes-
tified that she was dead when they returned from Chicago later that night.




                                                  6
       To be convicted of Murder as the principal, the defendant must knowingly or intentional-
ly kill another person. Ind. Code § 35-42-1-1. There must be evidence either that it was the de-
fendant's "conscious objective" to kill the victim, Burkhalter v. State, 272 Ind. 282, 285, 397
N.E.2d 596, 598 (1979); see also Ind. Code § 35-41-2-2(a) ("A person engages in conduct
'intentionally' if, when he engages in the conduct, it is his conscious objective to do so."), or that
the defendant was aware of a high probability that his or her actions would result in the death of
the victim, Young v. State, 761 N.E.2d 387, 389 (Ind. 2002); Burkhalter, 272 Ind. at 285, 397
N.E.2d at 598; see also Ind. Code § 35-41-2-2(b) ("A person engages in conduct 'knowingly' if,
when he engages in the conduct, he is aware of a high probability that he is doing so.").


       As noted above, these facts do not support a conviction of the defendant for Murder as a
principal but only as an accomplice. Notwithstanding the defendant's terrible treatment of the
child, none of her actions were causally linked to either cause of death offered to explain the vic-
tim's death at trial. Here, the evidence shows only that the defendant (1) yelled at the victim re-
peatedly, (2) spanked the victim with and without a belt several different times, (3) slapped the
victim, (4) poked the victim, (5) shoved and pushed the victim, and (6) yanked the victim by the
hair and arms. As an initial matter, we note that none of these actions, on their face, evince a
conscious objective to kill the victim nor are any of these actions in isolation associated with a
high probability of death. It is presumably possible that in the aggregate a physical battering of a
child similar to that which occurred in this case could cause the death of a small child. However,
there was no evidence to support such an inference in this case. Neither of the medical experts
who testified to the cause of death contended that the victim's death was caused by or could have
been caused by the yelling, spanking, slapping, poking, shoving, pushing, or yanking of the body
and hair inflicted by the defendant. The doctor who performed the autopsy testified that the sole
cause of death was blunt force injuries of the head with the depressed skull fracture being the
primary injury. The defendant's medical expert testified that the cause of death was asphyxiation
caused by unconsciousness leading to an obstructed airway or some other interference with the
child's breathing. Yet, we cannot conclude that any of the defendant's actions—yelling, spank-
ing, slapping, poking, shoving, pushing, and yanking—would make a person aware, either in iso-
lation or in the aggregate, of a high probability of death from blunt force injury of the head or
asphyxiation.



                                                  7
       The only injury to the victim caused by the defendant's actions that was identified as a
potential cause of the victim's death was the fact that the victim hit her head on a table after be-
ing slapped by the defendant. The autopsy doctor testified that falling on the distinct edge of an
object could cause a blunt force head injury sufficient to have killed the victim in this case.
There was no evidence, however, that the defendant intentionally or knowingly caused the victim
to hit her head on the table. The evidence only suggested that the injury was an accident. The
speculative connection between the slap and the victim striking her head on the table is not sub-
stantial evidence of probative value proving that, in administering such slap, the defendant
should have been aware of a high probability of resulting death.


       To be convicted of Murder as an accomplice, the defendant must knowingly or intention-
ally aid, induce, or cause the commission of a murder by another. Ind. Code § 35-41-2-4. A de-
fendant may be charged as the principal but convicted as an accomplice. Jester v. State, 724
N.E.2d 235, 241 (Ind. 2000); Wise v. State, 719 N.E.2d 1192, 1198 (Ind. 1999). Generally there
is no distinction between the criminal liability of an accomplice and a principal, Wise, 719
N.E.2d at 1198, although evidence that the defendant participated in every element of the under-
lying offense is not necessary to convict a defendant as an accomplice. Vitek v. State, 750
N.E.2d 346, 352 (Ind. 2001). "There is no bright line rule in determining accomplice liability;
the particular facts and circumstances of each case determine whether a person was an accom-
plice." Id. at 353. We consider four factors to determine whether a defendant acted as an ac-
complice: (1) presence at the scene of the crime; (2) companionship with another at scene of
crime; (3) failure to oppose commission of crime; and (4) course of conduct before, during, and
after occurrence of crime. Id. at 352. That a defendant was present during the commission of a
crime and failed to oppose the crime is not sufficient to convict her. Id. But, "presence at and
acquiescence to a crime, along with other facts and circumstances" may be considered. Id. at
352–53.


       In this case, there was sufficient evidence presented at trial from which the jury could
have concluded beyond a reasonable doubt that the defendant's boyfriend murdered the victim.
The defendant's boyfriend, Tkachik, admitted to abusing the victim on the day of her death, say-



                                                  8
ing that he "knuckled" the victim in the head "pretty hard" four to seven times. Tr. at 334–35.
From this, the jury could reasonably have concluded that the defendant's boyfriend was aware of
a high probability that punching a child in the head could kill the child. The evidence most fa-
vorable to a conviction based on accomplice liability demonstrates that the defendant was pre-
sent when her boyfriend punched the victim in the head, that she did not object to his actions,
and that she continued to associate with him in an amicable manner after the incident. More im-
portantly, the defendant attempted to conceal the victim's injuries in preparation for the trip to
Chicago and failed to insist on or seek professional medical treatment for the victim at any time.
Additionally, after the victim's death, the defendant assisted her boyfriend in disposing of the
child's body and staged a fake abduction at a nearby gas station in an attempt to provide a cover
story to explain the victim's disappearance. In light of this evidence, we have little trouble con-
cluding that there was sufficient evidence for a jury to conclude that the defendant aided another
in the commission of a murder.


       Nevertheless, as we have acknowledged, "[w]hile an accomplice may be found guilty of
the crime largely executed by his principal, it does not follow that the same penalty is appropri-
ate." Martinez Chavez v. State, 534 N.E.2d 731, 735 (Ind. 1989). We believe this sentence of
life without the possibility of parole is inappropriate under the circumstances of this case, partic-
ularly given that the defendant was merely complicit in her boyfriend's conduct but did not ac-
tively participate in or plan the killing. We have accorded a similar degree of leniency to de-
fendants whose role in a murder was substantially less blameworthy than the principal's, reduc-
ing the length of the defendant's sentence. See, e.g., Baxter v. State, 727 N.E.2d 429, 436–37
(Ind. 2000) (revising 65-year sentence of defendant convicted of Murder as accomplice to 55
years because of defendant's good character and because defendant did not expect "at the outset
of the evening that his association with [the principals] would result in any crime"); Edgecomb v.
State, 673 N.E.2d 1185, 1199–1200 (Ind. 1996) (revising defendant's 60-year sentence to 40
years in part because defendant did not encourage the murder, was not present during the mur-
der, and did not actually kill the victim).


       In this case, the evidence most favorable to conviction makes clear that the defendant's
role in causing the fatal injuries was indirect. Without a doubt, the physical battering inflicted by



                                                  9
the defendant was excessive and unacceptable, yet, as discussed above, none the acts of physical
abuse inflicted by the defendant are associated with a high probability of death. These circum-
stances lead us to conclude that for this defendant a sentence to a term of years is more appropri-
ate than a sentence of life imprisonment without the possibility of parole.8 That the defendant
continued to physically discipline the victim after she was punched in the head by Tkachik, that
the defendant seemingly showed no concern for the victim's well-being prior to the time when
she stopped breathing, and that the defendant attempted to conceal the victim's death and did not
assist law enforcement with the investigation reflect negatively on the defendant's character and
militate in favor of a sentence above the advisory sentence for Murder.9 Weighing all of these
circumstances together, we conclude that the appropriate sentence for this defendant is the max-
imum term of years for Murder—sixty-five (65) years.


                                    2. Prosecutorial Misconduct


        The defendant also challenges her sentence of life without parole on the ground that the
trial prosecutor engaged in prosecutorial misconduct at the penalty phase of her trial and that the-
se actions constituted fundamental error. She focuses upon the following statements made by the
prosecutor during closing arguments at the penalty phase of the trial:
        We are here because of that little girl and do not compare what you're evaluating, the ag-
        gravating factor and these mitigating factors that the defense has brought. Do not com-
        pare Engelica Castillo's pathetic miserable childhood to the life of that two-year old. Her
        own family didn't want her. The Courts couldn't deal with her. Everything that they
        said—I mean, she's a problem. She is a problem. She is uncontrollable . . . . She never
        deserves to be out . . . . As sad an tragic as it may be, it has turned her into a violent, vi-
        cious, manipulative—you saw her behavior, she is not mild and meek. She is defiant.
        She runs away, she stands up for herself. She's a fighter. . . . Suspensions for fighting,
        for pushing. For pushing a student into a table. 2002, its in here, punching a student. . . .
        That is who she is, what you saw is who she is.
               She pleads for your mercy to give her some sort of life should she get out. I ask
        you to give her and show her that same mercy that she showed that two year old. She
        beat her with a belt because that's how she grew up, because that's what she knows, you
        8
          Our conclusion here should not be construed as a general prohibition on the imposition of a sen-
tence of life without parole where the defendant is only convicted as an accomplice to murder. Each case
must be reviewed in light of the unique set of circumstances underlying conviction.
        9
          Indiana Code Section 35-50-2-3 establishes the sentencing range for Murder as a term between
forty-five (45) and sixty-five (65) years with an advisory sentence of 55 years. Ind. Code § 35-50-2-3(a).


                                                    10
          are a product of your environment. She's not this little innocent shrinking violet, "Woe is
          me, everybody's against me." She is an abuser, she is violent. She is vicious. . . .
          . . . Because of her, Jada Justice will never go to school, ride a bike, get a driver's license,
          have a first kiss, go to the prom, graduate, put on a wedding dress—never. Because of
          her actions and her behavior and the way she is. All that is gone. She is broken. She has
          been broken since she was a kid and there is no fixing her.
Tr. at 1856–59. The defendant contends that these statements urged the jury not to compare the
aggravating and mitigating circumstances in deciding whether to impose a sentence of life with-
out parole contrary to Indiana law and encouraged the jury to impose such sentence based upon
the defendant's alleged unsavory character. The defendant did not object to these statements at
trial and thus challenges them in this appeal as fundamental error.


          We evaluate a properly preserved claim of prosecutorial misconduct using a two-step
analysis. We first determine whether misconduct occurred, then, if there was misconduct, we
assess "whether the misconduct, under all of the circumstances, placed the defendant in a posi-
tion of grave peril to which he or she would not have been subjected" otherwise. Cooper v.
State, 854 N.E.2d 831, 835 (Ind. 2006). To preserve a claim of prosecutorial misconduct, the
defendant must ask the trial court, at the time the misconduct occurs, to admonish the jury or
move for a mistrial if admonishment is inadequate. Id. Failure to request an admonishment or a
mistrial waives the claim, unless the defendant can demonstrate that the misconduct rises to the
level of fundamental error. Id. Fundamental error is a narrow exception intended to place a
heavy burden on the defendant. It requires the defendant to establish that the misconduct
"[made] a fair trial impossible or constitute[ed] clearly blatant violations of basic and elementary
principles of due process" or that the misconduct "present[ed] an undeniable and substantial po-
tential for harm." Benson v. State, 762 N.E.2d 748, 756 (Ind. 2002); accord Cooper, 854 N.E.2d
at 835.


          The prosecutor, during closing arguments at the sentencing phase of trial, actually told
the jury not to compare the mitigating and aggravating factors. Tr. at 1856–57 ("[D]o not com-
pare what you're evaluating, the aggravating factor and these mitigating factors that the defense
has brought. Do not compare Engelica Castillo's pathetic miserable childhood to the life of that
two-year old.") Yet, Indiana law expressly requires the jury to make such a comparison before
imposing a sentence of life without parole. Ind. Code § 35-50-2-9(l) ("Before a sentence may be


                                                    11
imposed under this section, the jury . . . must find that: . . . any mitigating circumstances that ex-
ist are outweighed by the aggravating circumstance or circumstances."). Under the Rules of Pro-
fessional Conduct, which are one means by which we assess the appropriateness of a prosecutor's
conduct, see Swope v. State, 263 Ind. 148, 155, 325 N.E.2d 193, 196 (1975) (evaluating prosecu-
tor's alleged misconduct with reference to the then-in-force Code of Professional Responsibility
and finding no misconduct); see also Cooper, 854 N.E.2d at 835 ("Whether a prosecutor's argu-
ment constitutes misconduct is measured by reference to case law and the Rules of Professional
Conduct."), a prosecutor has a duty to truthfully represent the law and facts of a case to the jury.
Ind. Professional Conduct Rule 3.3(a)(1) ("A lawyer shall not knowingly: (1) make a false
statement of fact or law to a tribunal . . . .").10 We believe that the prosecutor's misstatement
constituted misconduct because the prosecutor urged the jury to act contrary to law.


        In addition to misstating the law on sentencing, the prosecutor repeatedly implored the ju-
ry to consider the defendant's unsavory character, specifically:
        The Courts couldn't deal with her. . . . I mean, she's a problem. She is a problem. She is
        uncontrollable . . . she never should be out. She never deserves to be out in public. . . .
        As sad and tragic as it may be, it has turned her into a violent, vicious, manipulative—
        you saw her behavior, she is not mild and meek. She is defiant. . . . She's a fighter. . . .
        That is who she is, what you saw is who she is. What those papers tell you is who she is.
                . . . She's not this little innocent shrinking violet, "Woe is me, everybody's against
        me". She is an abuser, she is violent. She is vicious. . . .
                Do not give her the mercy she asks for now. She doesn't deserve it, and frankly,
        she doesn't deserve to be walking around in public at all. . . . She is broken. She has
        been broken since she was a kid and there is no fixing her.
                How many chances do you have to give someone? How many? Everyone has
        tried and it has failed. She is out of chances. . . .
Tr. at 1857–58. In its entirety, this colloquy on the defendant's character comprised nearly one-
third of the prosecutor's closing statements to the jury. We have made clear in other cases that it
is "misconduct for a prosecutor to request a jury to return a death penalty or life without parole
recommendation for anything other than that the mitigating factors are outweighed by the aggra-
vating factor or factors." Cooper, 854 N.E.2d at 841. And, under the statute, the only aggravat-
ing factor that the jury could consider in this case was that the victim was less than twelve years


        10
           A tribunal is "a court, an arbitrator, or any other neutral body or neutral individual making a
decision, based on evidence presented and the law applicable to that evidence, which decision is binding
on the parties involved." Prof. Cond. R. 1.0(m).


                                                    12
of age at the time she was murdered. See Ind. Code § 35-50-2-9(b). None of the statutory fac-
tors include the character of the defendant. See generally Ind. Code § 35-50-2-3(b).


        It could be contended that, standing alone, the prosecutor's erroneous statement of law
would present little threat of prejudice because it was only a small part of a much longer exposi-
tion by the prosecutor in closing argument, was not repeatedly reiterated, and was countered by a
correct statement of the law in the final instructions.11 But, when it is juxtaposed with the prose-
cutor's thinly-veiled call for the jury to sentence the defendant to life without parole because of
her unsavory character, we cannot ignore the substantial potential for harm to the defendant's
right to be sentenced fairly in accordance with the law. Telling the jury not to balance the aggra-
vators and the mitigators touched on the central task of the jury in deciding whether to impose
life without parole. The prosecutor not only urged the jury not to so weigh the factors but also
asked the jury to consider additional allegedly aggravating circumstances not permitted by the
statute. Although the defendant's trial counsel did not contemporaneously object, the magnitude
of this prosecutorial overreaching not only placed the defendant in a position of grave peril to
which she should not have been subjected but also presented an undeniable and substantial po-
tential for an erroneous jury sentencing recommendation. For her claim of prosecutorial miscon-
duct in the penalty phase, the defendant asks that we vacate her life sentence and either "remand
to impose a sentence of years, or imposition of a sentence of years by this Court." Appellant's
Br. at 17. Because we have in Part 1 of this opinion concluded that the defendant's sentence for
the crime of murder should be revised from life without parole to a term of sixty-five years, no
further relief is warranted for the defendant's prosecutorial misconduct claim.


                                                Conclusion




        11
           As we explained recently, closing arguments are rightly received by the jury as partisan advo-
cacy, not impartial statements of the law, and thus are likely to have little effect on the jury's understand-
ing of the law. See LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 526 (Ind. 2012) ("Thus,
whether the closing argument of one of the lawyers may have been an attempt to clarify an instruction
ambiguity, the jury would properly have received such statements as advocacy on behalf of the lawyer's
client. Such closing arguments of counsel cannot provide us with any assurance that the jury understood
the lawyer's statements to clarify, supersede, or countermand the instructions given by the trial judge.").


                                                      13
       We conclude that the appropriate sentence for the defendant's murder conviction is im-
prisonment for a term of sixty-five (65) years rather than life imprisonment without the possibil-
ity of parole. This cause is remanded for entry of the revised sentence on the conviction for
Murder.


Sullivan, J., concurs.
Rucker, J., concurs in result.
David, J., concurs in result with separate opinion.
Massa, J., dissents with separate opinion.




                                                14
David, J., concurring in result.

          The majority concludes that the “facts do not support a conviction of the defendant for
Murder as a principal but only as an accomplice.” Slip op. at 7. In essence, the majority
believes that Castillo did not knowingly or intentionally kill her two-year-old cousin. Although I
agree that the evidence does not support a finding that Castillo intentionally killed the victim, I
believe that there was sufficient evidence for a jury to find that Castillo knowingly killed the
victim.


          The evidence showed that over the course of at least five hours, Castillo repeatedly beat
the two-year-old victim in some way, shape, or form. The evidence further showed that Castillo
told her boyfriend that the victim hit her head on a table after Castillo slapped the victim. The
likely cause of death to the victim was blunt force trauma to the head. It was reasonable for the
jury to infer that Castillo either (1) was aware that her slapping the victim in close proximity to
the table could easily result in the victim hitting her head on the table or (2) was lying when she
stated it was an accident that the victim hit her head on the table.


          Furthermore, Castillo’s boyfriend testified that after the table incident there was another
incident that involved Castillo and the victim in the victim’s bedroom. He testified that there
were “boom, boom, boom, boom” noises coming from the bedroom, where Castillo had tied the
victim to a chair. Slip op. at 6. Although he could not see what was causing the noises, he
testified that thirty minutes later, he “noticed that the victim had a bruise on her face, that she
seemed ‘out of it,’ and that she was unable to hold her bottle while sitting in her carseat.” Slip
op. at 6. It was reasonable for the jury to infer that (1) the noises were the result of Castillo
beating the victim behind closed doors, given the victim’s state shortly afterward and that (2)
given everything that had already happened that day, Castillo was aware that additional beating
would likely cause the death of a two-year-old.


          Ultimately, I believe a jury could have properly found that Castillo, especially when her
actions are viewed in the aggregate, was aware that her conduct would result in the death of her
two-year-old cousin. A sentence revision should not be based on the nature of the offense, which
was clearly heinous.
        However, I do not object to revising the sentence to a term of sixty-five years for a host
of other reasons: Castillo’s difficult upbringing, her boyfriend’s participation in the murder, the
terms    of   the   boyfriend’s    plea   agreement,     and   the    prosecutorial   misconduct.




                                                2
Massa, J., dissenting.


       I agree with the majority’s conclusion that the evidence supported Castillo’s conviction
for murder as an accomplice, but dissent because I believe there was also substantial evidence for
the jury to conclude Castillo was the principal actor.


       As the majority correctly states, a person may be convicted of murder where the evidence
shows he or she “was aware of a high probability that his or her actions would result in the death
of the victim.” Slip op. at 7; accord Williams v. State, 749 N.E.2d 1139, 1141 (Ind. 2001). But I
part ways where it “cannot conclude that any of the defendant’s actions—yelling, spanking,
slapping, poking, shoving, pushing, and yanking—would make a person aware, either in
isolation or in the aggregate, of a high probability of death from blunt force injury of the head or
asphyxiation.” Slip op. at 7–8.


       First, I do not think such a level of precision in formulating a defendant’s intent to kill—
that the defendant be aware of the particular manner and means of the fatal blow—is required by
our case law. The evidence just had to show that Castillo was aware of a high probability that
her actions would result in Jada’s death—not death by hitting her head on a table. And in
making this determination, “the jury may consider the duration and brutality of a defendant’s
actions, and the relative strengths and sizes of a defendant and victim.” Williams, 749 N.E.2d at
1141. Intent to kill may also be inferred “where blows of magnitude are repeated,” and “from
the nature of the attack and the circumstances surrounding the crime.” Nunn v. State, 601
N.E.2d 334, 339 (Ind. 1992).


       Here, the evidence introduced at trial showed that Castillo brutally abused Jada over the
course of a day, including numerous strikes to the face, pushing, and yanking on her hair, some
of which occurred while Jada was restrained. The evidence also showed that Castillo sent
Tkachik to the gas station to get duct tape and, upon his return, took that duct tape into the
bedroom with Jada. Tkachik then testified to hearing several “boom” sounds coming from the
room. It was after this ominous incident—at the end of a day of physical abuse—that Castillo
and Tkachik put Jada in the car and noticed she was not breathing.


        Were Jada an adult, perhaps this level of assault—while still heinous—might not raise an
awareness of a high probability of death. But Jada was two years old, and I struggle to believe
that even an eighteen-year-old carrying out an attack of this scope was not aware that there was a
high probability that it could end in death. There was an enormous disparity in size and strength
between Jada and Castillo, and this was a protracted and brutal assault with repeated blows of
magnitude characterized by escalating viciousness toward a helpless two-year old child—and
because of it, Jada died. I believe this was sufficient to sustain Castillo’s conviction for murder,
regardless of Tkachik’s conduct.1


        As a result, I also disagree with the majority’s decision to revise Castillo’s sentence
because it rests upon the conclusion that Castillo “was merely complicit in her boyfriend’s
conduct but did not actively participate in or plan the killing.” Slip op. at 9. Even absent the
evidence discussed above, Castillo herself says otherwise through her appeal. 2 In fact, this
concession is the very basis for her appeal of her sentence: she received a sentence of life
without the possibility of parole whereas Tkachik faced a sentencing range between twenty and
fifty years. Appellant’s Br. at 11 (“This recognition reveals why the disproportionate sentences
renders [sic] Castillo’s life sentence inappropriate.”).



1
  Accord Childers v. State, 719 N.E.2d 1227, 1230 (Ind. 1999) (finding evidence sufficient to sustain a
murder conviction where the three-year-old victim was in the adult defendant’s care, a witness heard the
defendant spanking the victim and yelling, the defendant admitted putting the victim across his lap and
whipping him, and the victim later died of a hematoma: “Given the disparity in size and strength between
the defendant and Wesley, and the number and severity of the wounds indicating the considerable force
used in striking Wesley, a reasonable jury could have found, beyond a reasonable doubt, that the defend-
ant was aware of a high probability that the blows he struck would result in Wesley’s death.”).
2
  “Castillo respectfully urges that her role in the death of the child is equal to or lesser than that of
Tkachik.” Appellant’s Br. at 10 (emphasis added). “Hence, both Castillo and Tkachik participated in the
events leading to the death of J.J. and it is very plausible that a detached, neutral appellate tribunal could
reasonably conclude that they were equally responsible for the death of J.J.” Appellant’s Br. at 11 (em-
phasis added). “This rare case features two defendants who are as equally culpable as one could imag-
ine . . . . Both defendants participated in the same series of acts resulting the death of J.J.” Appellant’s
Br. at 13 (emphasis added).



                                                      2
           In my view, however, while we may consider the difference between Castillo’s sentence
and Tkachik’s sentence, we are under no obligation to do so. Appellate Rule 7(B) requires
consideration only of the sentence, the nature of the offense, and the character of the offender. I
do not believe this is a case for comparison between co-defendants’ sentences because Tkachik’s
reduced sentencing range came only as a result of his agreement to plead guilty to lesser charges.
In exchange for this, the State secured Tkachik’s cooperation and testimony—both of which
appear to have been necessary for Castillo’s conviction.


           This prosecutorial approach is not surprising, given that the only remaining, living
witnesses to the entire course of conduct were Tkachik and Castillo. Thus, the only way for the
State to prove who did what was to secure one defendant’s testimony against the other, in
exchange for a lighter sentence. This Court has just recently noted this technique is sometimes
necessary to present “a relatively clear picture of an otherwise-muddy situation.” Cain v. State,
955 N.E.2d 714, 719 (Ind. 2011) (affirming a sentence of life without the possibility of parole for
one of four defendants tried separately for one murder when the case required the prosecutor to
“seek plea agreements in which she sought lesser charges in exchange for the defendant’s
testimony.”). Divide and conquer is a fundamental crime-solving strategy when more than one
suspect is involved. When one blinks first and gets the benefit of his bargain, it does not render
his co-defendant’s fuller punishment disproportionate and should not serve as the basis for
appellate revision. Our jurisprudence should not undermine acceptable stationhouse bargaining
tactics.


           Even taking the majority’s view of culpability, I still believe a sentence of life without
parole is not inappropriate on these facts. The jury found the sole charged aggravator—that the
victim was under the age of twelve—beyond a reasonable doubt.3 The jury also found that
Castillo proved a number of mitigating factors—including her childhood experience, family
situation, and drug use—but still believed the aggravator outweighed the mitigators. I see no


3
  It seems as though the defendant requested that the trial court judge make independent findings with
respect to the aggravating and mitigating circumstances, as well as the sentence. I express no view as to
the propriety or necessity of this added step, but point out only that the judge independently reached the
same conclusion as the jury with respect to Castillo’s sentence.



                                                    3
reason to disturb this decision under our Rule 7(B) analysis when considering the nature of the
offense (a vicious litany of abuse on a defenseless and utterly innocent victim followed by a
deliberate, planned attempt to conceal the crime, deny involvement, and deceive law
enforcement) and the character of the offender (a drug-abusing teenager with a troubled
childhood who exhibited hostility to authority and callous disregard for her victim and was
hardly the manipulated accomplice she now claims to be).


       Finally, with respect to Castillo’s claim that the State’s commentary during its closing
arguments at her sentencing was improper, I concur with the majority’s determination that there
was misconduct. It was inappropriate for the prosecutor to imply that the jurors should not
compare the aggravating and mitigating factors, or that they should impose a sentence based on
anything other than those aggravating and mitigating factors.


       That said, I do not believe this misconduct rises to the level of fundamental error. Much
of Castillo’s strategy at sentencing appears to have been aimed at creating an impression in the
minds of the jurors that she was a product of her broken childhood and the manipulative mind of
Tkachik. The State’s response would necessarily have been to try to decrease the weight the jury
afforded this impression, and that is how I interpret most of the commentary cited by the
majority.   While some of it is inappropriate, in my view much of it is directly aimed at
diminishing the credibility of Castillo’s mitigating factors.   This was not an inappropriate
stratagem for the State to employ. Moreover, as the majority says, the correct law was provided
in the final instructions, and in the absence of contrary evidence we presume the jury follows
those instructions. Duncanson v. State, 509 N.E.2d 182, 186 (Ind. 1987).


       Had Castillo objected and requested an admonishment, this might be a different question.
But the fundamental error exception is not a safe harbor for defendants who violate the
contemporaneous objection rule and is therefore deliberately kept very narrow. Cooper v. State,
854 N.E.2d 831, 835 (Ind. 2006). Because I think only a small amount of the prosecutor’s
closing argument was inappropriate, I believe that narrow exception is not met here.


       Accordingly, I respectfully dissent.



                                                4
