MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before any                                 FILED
court except for the purpose of establishing                          Nov 19 2019, 6:21 am

the defense of res judicata, collateral                                   CLERK
                                                                      Indiana Supreme Court
estoppel, or the law of the case.                                        Court of Appeals
                                                                           and Tax Court




ATTORNEY FOR APPELLANT                                  ATTORNEYS FOR APPELLEE
Matthew J. McGovern                                     Curtis T. Hill, Jr.
Anderson, Indiana                                       Attorney General
                                                        Caryn N. Szyper
                                                        Deputy Attorney General
                                                        Indianapolis, Indiana



                                          IN THE
    COURT OF APPEALS OF INDIANA

Caleb Kirk Singer,                                      November 19, 2019
Appellant-Defendant,                                    Court of Appeals Case No.
                                                        19A-CR-788
        v.                                              Appeal from the
                                                        Vanderburgh Circuit Court
State of Indiana,                                       The Honorable
Appellee-Plaintiff                                      David D. Kiely, Judge
                                                        Trial Court Cause No.
                                                        82C01-1803-MR-1704



Vaidik, Chief Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019              Page 1 of 12
                                          Case Summary
[1]   Caleb Kirk Singer appeals his conviction for murder, arguing that the evidence

      is insufficient to support it. He also appeals his fifty-five-year sentence,

      asserting that the trial court relied on improper aggravators and that his

      sentence is inappropriate in light of the nature of the offense and his character.

      We affirm.



                            Facts and Procedural History
[2]   In 2015, Singer met Summer Smith when they worked together at Wendy’s,

      after graduating from high school in Evansville. A few months later, they

      started dating, and Singer moved in with Summer and her parents. In January

      2017, Summer became pregnant with Singer’s child. Around July 2017, Singer

      moved into his own apartment, which was paid for by the Department of

      Family Services. He was not allowed to have anyone else live in the apartment

      with him, so although Summer technically lived at her sister’s apartment she

      often stayed at Singer’s apartment with their son.


[3]   In February 2018, Summer ended her relationship with Singer and began living

      fulltime at her sister’s apartment with their four-month-old son. Although

      Singer and Summer had broken up before, this time was different as Summer

      had told Singer that “[she] was done,” they were “never getting back together,”

      and she would not let Singer see their son. Tr. Vol. III pp. 137, 187. About a

      week after the break up, Singer sent Summer several text messages, saying


      Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 2 of 12
      “who are you with”; “who are you at Walmart with”; and “hello.” Id. at 196-

      97. At first Summer did not respond, but after Singer sent her more messages

      asking who she was with and where she was, she responded “leave me alone

      please.” Id. at 197.


[4]   The morning of March 6, Singer texted Summer that “if I find out you’re

      talking to other people, I’m going to kill you and your whole family, and I’m

      destroying everything you have, so hope you’re happy right now, ignoring me

      and treating me like shit.” Id. at 195. Throughout the remainder of the day,

      Singer sent Summer numerous text messages asking her to come to his

      apartment and to stay the night with him. Summer told Singer that she was not

      feeling well but that “he could come get his son if he wanted to spend time with

      him.” Id. at 139. Singer continued asking Summer to stay the night with him.

      She eventually responded “we’ll see” and told him that she would let him know

      her decision around 10:00 p.m. Id. At 8:00 p.m., Singer got off work. He

      called and texted Summer, but she did not respond. He then went to Summer’s

      apartment and texted her sister to see if he could come inside to see his son.

      Summer’s sister did not respond.


[5]   While Singer was waiting outside Summer’s apartment, he had a phone

      conversation with his best friend, Uriel Williams. During their conversation,

      Singer was agitated and angry and told Uriel that he believed Summer was

      cheating on him. After the call, Uriel met Singer at the apartment, and Singer

      borrowed his phone and used it to try to contact Summer. Once again, she did

      not respond. Singer and Uriel then drove a few blocks away, and Singer tried

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 3 of 12
      to find Summer’s location on his phone—they had previously shared their

      phone’s locations with each other. Singer became increasingly frustrated and

      angry and told Uriel, “[I]f [Summer’s] with another guy I [am] going to kill

      him.” Id. at 160. After about ten minutes of searching, Singer saw that

      Summer was at her apartment, so he drove to her apartment to find her.


[6]   Meanwhile, that same evening, Summer’s friend, Nicholas Belcher, picked her

      up from her apartment, and they spent time together driving around town.

      Summer and Nicholas were friends in high school but had lost touch after

      graduation. Recently, they rekindled their friendship when Summer’s son

      started going to Nicholas’s mother’s in-home daycare. Around 10:00 p.m.,

      Nicholas drove Summer back to her apartment. When they got close to the

      apartment, Summer saw Singer’s car in the driveway, so she told Nicholas to

      drive around the block. After about ten minutes, they drove back to the

      apartment, and Summer saw that Singer’s car was gone. Nicholas parked his

      car in the apartment’s driveway, walked Summer to the door, gave her a hug,

      and said goodbye. Summer walked inside the building and upstairs into her

      apartment.


[7]   Nicholas went back to his car and started to back out of the driveway when

      Singer arrived and used his car to block Nicholas’s car from getting out of the

      driveway. Singer was driving, and Uriel was in the passenger seat. Singer

      grabbed his handgun, got out of his car, and walked to the driver’s side window

      of Nicholas’s car. Uriel saw Singer use his gun to motion for Nicholas to roll

      down his window. When Nicholas rolled the window down about six inches,

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 4 of 12
      Singer asked, “[W]ho are you, are you Nathan or Nick, what’s your name?” Id.

      at 121. Nicholas said his name was Jim. Singer also asked if he had just

      dropped off Summer, and Nicholas said, “No.” Then, Singer reached inside

      the car window and shot Nicholas in the face, killing him. Uriel saw Singer

      walk toward Summer’s apartment before he returned to the car. Uriel asked,

      “[I]s he dead?,” and Singer responded, “Yeah.” Id. at 164. Singer also said

      that “[h]e was going to kill Summer too, but he didn’t know which apartment

      she was in.” Id.


[8]   Singer drove a few blocks away, and Uriel got out of the car. Once Singer left,

      Uriel called the police. When officers arrived at the scene, they found Nicholas

      slumped over, dead in his car. Later that night, Singer called Summer and told

      her that he loved her and their son and that he was sorry, but he had to leave.

      At that point, Summer did not know that Singer had shot Nicholas. Singer

      then left town and threw his gun off a bridge into the Ohio River. The next

      morning, Singer was apprehended in Kentucky. During his interview with

      police, Singer admitted that he shot Nicholas. Singer was then charged with

      murder.


[9]   In February 2019, a two-day jury trial was held. The jury was instructed on

      murder and voluntary manslaughter, including the requirement for sudden

      heat. Ultimately, the jury found Singer guilty of murder. At the time of the

      sentencing hearing in March 2019, Singer was twenty years old and had no

      prior criminal history. Singer’s aunt testified that he had a difficult childhood

      and that when he was nine, he found his mother dead from an overdose. See

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 5 of 12
       Tr. Vol. II p. 38. Singer’s aunt said that after Singer’s mother died, he was

       placed with his father, who also struggled with addiction, and eventually, he

       ended up in foster care. See id. After Singer’s aunt testified, the trial court

       noted that it had received about twenty letters from Nicholas’s family and

       friends describing their loss. The trial court also heard testimony from

       Nicholas’s mother, father, cousin, fifteen-year-old brother, and others. During

       some witnesses’ testimony, Singer smirked. Nicholas’s father pointed this out,

       telling Singer that after the jury’s verdict:


               [Y]ou sat there and smirked in front of my entire family with a
               smile on your face. I’ve watched other testimonies up here
               already today, and people when they mention you should get the
               max sentence, what’s your reaction, you smile, just like you’re
               doing now. . . .


       Id. at 48. The trial court then identified mitigating and aggravating

       circumstances. As for mitigators, the court found that Singer was twenty years

       old, had no prior criminal history, and experienced childhood trauma. The

       court then noted that “[Singer] had an opportunity to apologize to the family,

       and [he] elected not to do that.” Id. at 53. The court found that Singer’s lack of

       remorse and the nature of the offense were aggravating circumstances. The trial

       court sentenced Singer to fifty-five years in the Department of Correction, the

       advisory sentence. See Ind. Code § 35-50-2-3(a).


[10]   Singer now appeals.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 6 of 12
                                 Discussion and Decision
                               I. Sufficiency of the Evidence
[11]   Singer contends that the evidence is insufficient to convict him of murder.

       Specifically, he argues that he acted under sudden heat and therefore he should

       have been found guilty of voluntary manslaughter instead.


[12]   When reviewing the sufficiency of the evidence to support a conviction,

       appellate courts must consider only the probative evidence and reasonable

       inferences supporting the verdict. Sallee v. State, 51 N.E.3d 130, 133 (Ind.

       2016). It is the fact-finder’s role, not that of appellate courts, to assess witness

       credibility and weigh the evidence to determine whether it is sufficient to

       support a conviction. Id. It is not necessary that the evidence “overcome every

       reasonable hypothesis of innocence.” Id. (quotation omitted). The evidence is

       sufficient if an inference may reasonably be drawn from it to support the

       verdict. Drane v. State, 867 N.E.2d 144, 147 (Ind. 2007).


[13]   To determine whether the evidence is sufficient, we must consider the elements

       of murder and voluntary manslaughter. A person commits murder when they

       knowingly or intentionally kill another human being. Ind. Code § 35-42-1-1. A

       person commits voluntary manslaughter when they knowingly or intentionally

       kill another human being while acting under sudden heat. Ind. Code § 35-42-1-

       3(a). The existence of sudden heat is a mitigating factor that reduces what

       otherwise would be murder to voluntary manslaughter. Id. at (b). “Sudden

       heat exists when a defendant is ‘provoked by anger, rage, resentment, or terror,

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 7 of 12
       to a degree sufficient to obscure the reason of an ordinary person, prevent

       deliberation and premeditation, and render the defendant incapable of cool

       reflection.’” Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018) (quoting Isom v.

       State, 31 N.E.3d 469, 486 (Ind. 2015)). It involves an “impetus to kill” that

       arises “suddenly.” Suprenant v. State, 925 N.E.2d 1280, 1283 (Ind. Ct. App.

       2010), trans. denied. Words alone, however, are not sufficient provocation to

       reduce murder to manslaughter. Id. Once a defendant presents evidence of

       sudden heat, the State bears the burden of disproving its existence beyond a

       reasonable doubt. Whitt v. State, 91 N.E.3d 1082, 1093 (Ind. Ct. App. 2018),

       trans. denied. The existence of sudden heat is a classic question of fact to be

       determined by the jury. Id.


[14]   Singer’s sudden-heat theory is based on the premise that “he blacked out and

       could not control his actions” after Nicholas “lied” to him because he thought

       that Nicholas “was the reason he would no longer be able to see his son.”

       Appellant’s Br. pp. 15-16. Here, the trial court instructed the jury on voluntary

       manslaughter, including the requirement for sudden heat. The fact that the jury

       convicted Singer of murder was a rejection of his sudden-heat contention, and

       there is ample evidence to support the jury’s verdict. First, Summer told Singer

       that she was done and that he would no longer be able to see their son. See

       Massey v. State, 955 N.E.2d 247, 257 (Ind. Ct. App. 2011) (an expression of

       one’s desire to end a relationship cannot, as a matter of law, constitute

       sufficient provocation to induce passion that renders a reasonable person

       incapable of cool reflection). Then, Singer sent Summer text messages

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 8 of 12
       threatening to kill her and her whole family. When Summer did not respond to

       Singer’s text messages, he told Uriel that if he found out that Summer was with

       another man, he would kill them. And when Singer saw Nicholas in Summer’s

       driveway, he approached Nicholas’s car and asked him two questions, and

       when Nicholas answered with lies, Singer shot him. Again, words alone, even

       if they are lies, are not enough to provoke sudden heat. This evidence was

       sufficient for the jury to conclude that there was a lack of sudden heat beyond a

       reasonable doubt. Accordingly, we affirm Singer’s murder conviction.


                                             II. Sentencing
                                             a. Aggravators
[15]   Singer next contends that the trial court considered improper aggravating

       factors when sentencing him. Sentencing decisions rest within the sound

       discretion of the trial court and are reviewed only for an abuse of discretion.

       Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875 N.E.2d

       218 (Ind. 2007).


[16]   First, Singer asserts that there is no evidence to support the trial court’s finding

       that he showed a lack of remorse. A trial court may consider a defendant’s lack

       of remorse as an aggravator. Sloan v. State, 16 N.E.3d 1018, 1027 (Ind. Ct. App.

       2014). A lack of remorse is displayed when a defendant shows disdain or

       recalcitrance, the equivalent of “I don’t care.” Id. Singer claims that he did not

       “show recalcitrance or disdain” but instead was “maintain[ing] his innocence.”

       Appellant’s Br. p. 19. However, the evidence shows that during the sentencing


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 9 of 12
       hearing, Singer was smiling and smirking as the victim’s family and friends

       testified. Nicholas’s father pointed this out, saying, “I’ve watched other

       testimonies up here already today, and people when they mention you should

       get the max sentence, what’s your reaction, you smile, just like you’re doing

       now.” Tr. Vol. II p. 48. As such, the trial court did not abuse its discretion in

       finding Singer’s lack of remorse to be an aggravating factor.


[17]   Next, Singer argues that the trial court erred by identifying the nature of the

       offense as an aggravator. Singer alleges that he “did not commit the offense

       with any brutality than is [sic] already inherent in any murder offense.”

       Appellant’s Br. p. 19. Singer’s interpretation of the nature of his offense is

       inaccurate. That is, the evidence shows that Singer shot Nicholas, whom he

       did not even know, in the face at point-blank range. Killing someone execution

       style is a brutal way of committing the offense of murder. See McCallister v.

       State, 91 N.E.3d 554, 566 (Ind. 2018) (condemning execution-style murder); see

       also Krempetz v. State, 872 N.E.2d 605, 616 (Ind. 2007) (expressing outrage over

       execution-style killing committed against a defenseless victim). As such, we

       find that the trial court did not abuse its discretion.


                                         b. Inappropriateness
[18]   Singer also argues that his sentence is inappropriate and asks us to revise it to

       the minimum of forty-five years pursuant to Indiana Appellate Rule 7(B),

       which provides that an appellate court “may revise a sentence authorized by

       statute, if after due consideration of the trial court’s decision, the Court finds

       that the sentence is inappropriate in light of the nature of the offense and the
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 10 of 12
       character of the offender.” “Whether a sentence is inappropriate ultimately

       turns on the culpability of the defendant, the severity of the crime, the damage

       done to others, and a myriad of other factors that come to light in a given case.”

       Thompson v. State, 5 N.E.3d 383, 391 (Ind. Ct. App. 2014) (citing Cardwell v.

       State, 895 N.E.2d 1219, 1224 (Ind. 2008)). Because we generally defer to the

       judgment of trial courts in sentencing matters, defendants have the burden of

       persuading us that their sentences are inappropriate. Schaaf v. State, 54 N.E.3d

       1041, 1044-45 (Ind. Ct. App. 2016).


[19]   The sentencing range for the crime of murder is forty-five to sixty-five years,

       with an advisory sentence of fifty-five years. Singer received the advisory

       sentence.


[20]   With regard to the nature of the offense, as discussed above, Singer shot

       Nicholas, a man he did not know, at point-blank range because he suspected his

       ex-girlfriend was cheating on him. Furthermore, after he shot Nicholas, Singer

       told Uriel that he was going to kill Summer too, but he didn’t know which

       apartment was hers. Finally, Singer shot Nicholas after spending two days

       texting and threatening Summer because she decided to end their relationship.


[21]   As for Singer’s character, it is true that he had no criminal history and a difficult

       childhood. However, at the sentencing hearing, he did not present any

       evidence of his “virtuous traits” or provide any “examples of good character.”

       See Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015). Furthermore, when




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 11 of 12
       given the opportunity to express remorse for what happened, he chose to smile

       and smirk as Nicholas’s family and friends testified about their loss.


[22]   Singer has not convinced us that his sentence is inappropriate.


[23]   Affirmed.


       Riley, J., and Bradford, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-788 | November 19, 2019   Page 12 of 12
