Pursuant to Ind. Appellate Rule 65(D), this
Memorandum Decision shall not be
regarded as precedent or cited before any               Dec 17 2014, 9:15 am

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


ATTORNEYS FOR APPELLANT:                           ATTORNEYS FOR APPELLEE:

MICHAEL J. SPENCER                                 GREGORY F. ZOELLER
AMY P. PAYNE                                       Attorney General of Indiana
Monroe County Public Defenders
Bloomington, Indiana                               ERIC P. BABBS
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                                IN THE
                     COURT OF APPEALS OF INDIANA

JAMES DAVID FINNEY,                                )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )       No. 53A01-1311-CR-495
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                      APPEAL FROM THE MONROE CIRCUIT COURT
                          The Honorable Marc R. Kellams, Judge
                             Cause No. 53C02-1111-MR-1081


                                       December 17, 2014

                MEMORANDUM DECISION - NOT FOR PUBLICATION

SHARPNACK, Senior Judge
                             STATEMENT OF THE CASE

      James David Finney appeals his convictions of Murder, a felony, Ind. Code § 35-

42-1-1 (2007), and two counts of Class C felony Carrying a Handgun without a License,

Ind. Code § 35-47-2-1 (2011), as well as the seventy-three-year sentence imposed thereon.

       We affirm.

                                         ISSUES

      Finney raises seven issues for our review, which we consolidate and restate as:

      I.     Whether the trial court abused its discretion in denying Finney’s
             motion to sever;

      II.    Whether the trial court abused its discretion in admitting evidence;

      III.   Whether the trial court abused its discretion in denying Finney’s
             motion for a mistrial;

      IV.    Whether the trial court abused its discretion in instructing the jury;

      V.     Whether there is sufficient evidence to support Finney’s murder
             conviction; and

      VI.    Whether Finney’s sentence is inappropriate.

                       FACTS AND PROCEDURAL HISTORY

      At approximately midnight on November 3, 2011, as pizza delivery driver Adam

Sarnecki returned to the Pizza X employee parking lot behind the store after his last

delivery, he noticed David Finney attempting to break into a car. Finney fled to a nearby

wooded area, and Sarnecki followed him. While the two men were briefly in the woods,

Finney shot Sarnecki in the back. Sarnecki made his way back to Pizza X and collapsed.

Sarnecki’s co-worker called 911, and Bloomington Police Officer Jeff Rees responded to



                                             2
the scene. Sarnecki was transported to the hospital, where he subsequently died from the

gunshot wound.

       Because there were few leads in the case, Bloomington Police Department Detective

Joseph Henry “reached out” to his confidential informants the day after the shooting. Tr.

p. 139. Confidential informant Crissinda Brault responded that Finney texted her at 2:00

that morning and told her that he had a gun that he needed to sell quickly. After meeting

with Detective Henry, Brault asked Finney if he still had the gun. Finney responded that

he did not. After Brault told Finney that she needed a gun to commit a crime, Finney took

Brault with him to buy back the gun. However, after Finney paid for the gun with police

funds provided by Brault, Finney refused to give the gun to Brault. Finney explained that

he “[couldn’t] let [her] walk with this gun cause there’s a body on it . . . .” Tr. p. 196.

When Brault dropped Finney off at a nearby mobile home, he still had possession of the

gun.

       Police officers obtained a search warrant for the mobile home. During the execution

of the warrant, Finney was transported to the police station for a recorded interrogation.

Bloomington Police Department Detective Robert Shrake advised Finney that he was in

custody and read him his Miranda rights. Finney stated that he understood his rights and

denied any involvement in the shooting at Pizza X.            While Detective Shrake was

questioning Finney, police officers searching the mobile home found the gun that killed

Sarnecki behind a dryer vent and under a pipe at the bottom of a wall. Thereafter, Detective

Chris Scott joined the interview at the police station and told Finney that officers had found

the gun in the trailer. Detective Scott explained that he knew everything but did not know


                                              3
why. Specifically, Detective Scott told Finney that if “[Sarnecki] rushed up on you or you

[were] scared, that is different than you just coming and executing somebody.” Appellant’s

App. p. 49. Finney asked the detective if “that [made] it murder 1, manslaughter or what?”

Id. Finney further offered to “give the prosecutor a deal or something . . . .” Id. at 50.

       Detective Scott responded, “I’ll give you the prosecutor. . . . But I don’t know what

the hell you got to say. . . . [M]urder is if that kid got out of his car and you came up from

behind and shot him for no reason, instead of you got spooked because you were breaking

into cars . . . . [m]urder is the rest of your life . . . . So with me giving all this stuff to the

prosecutor, he’s going to have no choice but to hit you with murder, unless we find out

what happened behind that building.” Id. at 51, 52, 53. Finney subsequently admitted that

he was trying to steal money from a parked car when Sarnecki ran up to him and followed

him into the words. According to Finney, Sarnecki scared him, so he shot Sarnecki and

ran from the scene.

       The police charged Finney with murder and two counts of carrying a handgun

without a license, one count for the day of the murder and a second count for the day Finney

bought the gun back for Brault and took it to the trailer. Finney filed a motion to sever the

second count of carrying a handgun without a license from the other charges, which the

trial court denied. Finney also filed a motion to suppress the statements he made during

the recorded interrogation, which the trial court denied.

       At trial, defense counsel conceded in his opening statement that Finney had

committed a crime against Sarnecki. However, he argued “that crime was not murder.”

Tr. p. 18. During trial, over Finney’s hearsay objection, the trial court allowed Detective


                                                4
Henry to testify about his discussions with Brault regarding Finney and the gun. The trial

court admonished the jury that Detective Henry’s testimony “only explained what he did

next. It isn’t something you can count on as a fact.” Tr. p. 153. The trial court further

explained that it was Brault’s testimony that was being offered to show the facts.

          Finney moved for a mistrial when Detective Henry testified that Brault told him

Finney did not want her to have the gun because it had bodies on it. The trial court denied

the motion. Brault subsequently testified that Finney told her he could not “let [her] walk

with this gun cause there’s a body on it . . . .” Tr. p. 196. Also during trial, the trial court

admitted into evidence a redacted videotape and transcript of Finney’s police

interrogation.1 Finney tendered a self-defense instruction, which the trial court refused to

give. The trial court, however, granted Finney’s request for instructions on the lesser

included offenses of voluntary manslaughter, reckless homicide, and criminal recklessness.

The jury convicted Finney of murder and two counts of carrying a handgun without a

license.

          Evidence presented at the sentencing hearing revealed that Finney has a criminal

history that includes prior convictions for Class D felony intimidation, Class A

misdemeanor Battery, and Class A misdemeanor Theft. At the time of the hearing, he also

had pending charges for Battery, Criminal Recklessness, Carrying a Handgun without a

License, and Dealing in Marijuana, all Class C felonies. In addition, during his pre-trial

incarceration, Finney was disciplined for five separate incidents of jail misconduct and was

the subject of at least two other misconduct reports. Prior to his incarceration, Finney



1
    All references to unrelated crimes were redacted from the videotape and transcript.
                                                       5
supported himself by selling marijuana. The trial court observed that Finney exhibited an

escalating pattern of criminal behavior revealing his disdain for authority and propensity

for violence. The trial court also noted a probation violation demonstrating Finney’s

inability to follow the trial court’s rules and concluded that Finney was “dangerous” and if

released, m[ight] well prey upon innocent citizens . . . .” Tr. p. 581. The trial court

sentenced Finney to sixty-five years for murder and eight years for each count of Carrying

a Handgun without a License. The trial court ordered the two eight-year sentences to run

concurrently to each other and consecutive to the sixty-five-year sentence, for a total

executed sentence of seventy-three years. Finney appeals his convictions and sentence.

                             DISCUSSION AND DECISION

                              I.      Denial of Motion to Sever

       Finney first argues that the trial court erred in denying his Motion to Sever the

second count of carrying a handgun without a license from the other charges. He

specifically contends that he was entitled to severance of the charges as a matter of right,

and in the alternative, that even if no right to sever existed, the trial court abused its

discretion in denying his Motion to Sever.

       Indiana Code section 35-34-1-11(a) provides defendants with the right to severance

where “two (2) or more offenses have been joined for trial in the same indictment or

information solely on the ground that they are of the same or similar character.” However,

defendants have no such right to severance when the offenses are “based on the same

conduct or on a series of acts connected together or constituting parts of a single scheme

or plan.” Ind. Code § 35-34-1-9(a).


                                             6
       Here, it is evident that the two counts of Carrying a Handgun without a License were

joined for trial for reasons other than their similarity. Specifically, we agree with the State

that the “facts supporting Count III were integral to the narrative that supported the Murder

charge,” and show a series of acts connected together. Appellee’s Br. p. 22. Because the

offenses were not joined based solely on their similarity, Finney was not entitled to

severance of the charges as a matter of right.

       We must therefore determine whether the trial court abused its discretion in denying

his motion to sever. When determining whether to grant severance in a case where there

is no automatic right, a trial court considers the number of offenses charged, the complexity

of the evidence to be offered, and whether the trier of fact will be able to distinguish the

evidence and apply the law intelligently to each offense. Ind. Code § 35-34-1-11(a).

Whether charges are severed is within the sound discretion of the trial court and will be

upheld absent an abuse of that discretion. Harvey v. State, 719 N.E.2d 406, 409 (Ind. Ct.

App. 1999). Finney must also show that in light of what actually occurred at trial, the

denial of separate trials subjected him to prejudice. Id.

       Our review of the evidence reveals there were only three offenses charged, the

evidence offered was not complex, and the trier of fact would have been able to apply the

law intelligently as to each offense. We find no evidence, nor does Finney point us to any,

that the jury had difficulty distinguishing evidence as it related to each count or that the

jury had difficulty applying the law to each offense. Finney has also failed to show that he

was prejudiced by the denial of separate trials. The trial court did not abuse its discretion

in denying Finney’s motion to sever.


                                              7
                                     II.     Admission of Evidence

        Finney next argues that the trial court erred in admitting evidence. Specifically, he

contends the trial court improperly admitted Detective Henry’s testimony about his

discussions with Brault regarding Finney and the gun. Finney also contends that the trial

court erred in admitting his recorded interrogation into evidence because he did not

voluntarily and intelligently waive his Miranda rights and his confession was not

voluntary.2

        We review court rulings on the admission of evidence for an abuse of discretion.

Corbally v. State, 5 N.E.3d 463, 468 (Ind. Ct. App. 2014). A trial court abuses its discretion

only if its decision is against the logic and effect of the facts and circumstances before it,

or if the court has misinterpreted the law. Id.

                                           A. Hearsay Testimony

        Finney first argues that the trial court erred in admitting Detective Henry’s

testimony about his discussions with Brault regarding Finney and the gun.                         Finney

specifically contends this was inadmissible hearsay evidence. The State responds that the

detective’s testimony was admissible as nonhearsay “course of investigation” evidence,

and that even if the trial court erred in admitting it, the error was harmless.

        We need not determine whether the trial court erred in admitting this evidence

because the State is correct that any error was harmless. When reviewing whether the

erroneous admission of evidence was harmless, we must consider whether the evidence


2
 Although Finney originally challenged the admission of evidence through a motion to suppress, he now
appeals following a completed trial. The issue is therefore appropriately framed as whether the trial court
abused its discretion by admitting the evidence at trial. Widduck v. State, 861 N.E.2d 1267, 1269 (Ind. Ct.
App. 2007).
                                                    8
was likely to have substantially swayed the jury’s verdict. Id. at 470. The improper

admission of evidence is harmless error if we are satisfied that the conviction is supported

by such substantial independent evidence of guilt that there is little likelihood the

challenged evidence contributed to the conviction. Id. In deciding whether an error

contributed to the verdict, we must determine whether the erroneously admitted evidence

was unimportant in relation to everything else the jury considered on the issue in question.

Id.

       Here, Finney admitted that he shot Sarnecki in the back. The only disputed issue

was whether Finney’s crime was murder or a lesser offense. Detective Henry’s testimony

about his discussions with Brault regarding Finney and the gun was unimportant in relation

to other evidence the jury considered on this issue.         There is such overwhelming

independent evidence of Finney’s guilt that we can safely conclude that any error in the

introduction of Detective Henry’s testimony about his discussions with Gault was

harmless. See id. at 471.

                                    B. Recorded Statement

       Finney also argues that the trial court erred in admitting his recorded statement into

evidence because he did not voluntarily and intelligently waive his Miranda rights and his

confession was not voluntarily given. The State bears the burden of proving beyond a

reasonable doubt that the defendant voluntarily and intelligently waived his rights and that

his confession was voluntarily given. Ringo v. State, 736 N.E.2d 1209, 1211 (Ind. 2000).

Where that standard has been met, the decision whether to admit a confession is within the

trial court’s discretion and will not be reversed absent an abuse of that discretion. Id. When


                                              9
reviewing a challenge to the trial court’s decision to admit a confession, we do not reweigh

the evidence but instead examine the record for substantial probative value of

voluntariness. Id.

       A waiver of one’s Miranda rights occurs when the defendant, after being advised of

those rights and acknowledging that he understands them, proceeds to make a statement

without taking advantage of those rights. Id. at 1211-12. Whether Miranda rights were

knowingly and intelligently waived is determined by examining the totality of the

circumstances. Id. at 1212. Relevant factors include the length, location, and continuity

of the interrogation, and the maturity, education, physical condition, and mental health of

the defendant. Clark v. State, 808 N.E.2d 1183, 1191 (Ind. 2004).

       Here, Finney’s sole argument is that the trial court failed to consider his intoxication

and mental health. Specifically, he points to an unredacted transcript of his police

interrogation where he told Detective Henry that he had been “strung out” on Klonopin for

the previous three days and that his memory was “shot in a lot of places.” Appellant’s

App. p. 70. He also points to his statements that he might have “snapped” and that he has

been paranoid. Id. at 56.

       A defendant’s statement will be deemed incompetent only when he is so intoxicated

that it renders him not conscious of what he is doing or produces a state of mania. Brooks

v. State, 683 N.E.2d 574, 575 (Ind. 1997). Here, the State is correct that there is no evidence

that Finney was intoxicated at the time of the interview. Further, Finney only mentioned

the drug use and memory loss in relation to another offense that was redacted from his

interrogation. In addition, his comments about snapping and being paranoid did not relate


                                              10
to the time of the interrogation. Under the totality of the circumstances, Finney knowingly

and voluntarily waived his Miranda rights, and the trial court did not err in admitting his

police interrogation into evidence.

       Finney also argues that the trial court erred in admitting his statement into evidence

because his confession was involuntary. Specifically, he contends that the police coerced

him into confessing with promises of leniency.

        Voluntariness, like the validity of a waiver of rights, is determined in light of the

totality of the circumstances surrounding the interrogation. Clark, 808 N.E.2d at 1191. A

confession is inadmissible if obtained by promises of mitigation or immunity.             Id.

However, vague and indefinite statements by police that it would be in a defendant’s best

interest if he cooperated do not render a subsequent confession inadmissible. Id. In

addition, statements by police expressing a desire that a suspect cooperate and explaining

the possible crimes and penalties are not specific enough to constitute either promises or

threats. Id.

       Here, Finney cites no specific promises of mitigation or immunity, and we find

none. Rather, our review of the recorded interrogation reveals that Detective Scott

explained the various homicide offenses to Finney and suggested Finney would be better

served by telling the truth. Although these statements were an attempt to induce Finney to

comply with Detective Scott’s requests, they did not constitute promises of benefits,

threats, or inducements that rendered Clark’s confession involuntary. See id. The trial

court did not err in admitting Finney’s recorded interrogation into evidence.

                            III.      Denial of Motion for a Mistrial


                                               11
       Finney next argues that the trial court erred in denying his motion for a mistrial. A

mistrial is an extreme remedy that is warranted only when less severe remedies will not

satisfactorily correct the error. Randolph v. State, 755 N.E.2d 572, 575 (Ind. 2001). The

decision to grant or deny a motion for mistrial lies within the discretion of the trial court.

Id. The trial court’s determination will be reversed only where an abuse of discretion can

be established. Id. To prevail, the appellant must establish that he was placed in a position

of grave peril to which he should not have been subjected. Id. The gravity of the peril is

determined by the probable persuasive effect on the jury’s decision. Leach v. State, 699

N.E.2d 641, 644 (Ind. 1998).

       Finney’s sole argument is that the “trial court erred in denying [his] motion for

mistrial based on the improper testimony regarding Finney’s prior bad acts because it

violated both Indiana Rule of Evidence 404(b) and a previously granted motion in limine.”

Appellant’s Br. p. 14. The testimony about which Finney complains is Detective Henry’s

testimony that the gun used to kill Sarnecki had “bodies” on it. Tr. p. 152. According to

Finney, “[r]eference to the weapon involved in this case having ‘bodies’ on it clearly

implies that Finney has committed other crimes and potentially other murders with this

gun.” Id. at 16.

       First, as the State points out, when the trial court denied Finney’s motion, the State

said it would instruct Brault to “make it singular” and refer to one body. Tr. p. 174. In

addition, the trial court admonished the jury that it was Brault’s testimony that was being

offered to show the facts. We presume that this admonishment was sufficient to avoid a

mistrial. See Kent v. State, 675 N.E.2d 332, 335 (Ind. 1996) (explaining that a prompt


                                             12
admonishment to the jury to disregard improper testimony is usually enough to avoid a

mistrial).

       Further, to the extent Detective Henry’s use of the word “bodies” referred to

Finney’s statement to Brault and not to any specific prior acts, Evidence Rule 404(b)’s

limitation on evidence of uncharged misconduct simply does not apply. See Clark v. State,

915 N.E.2d 126, 130 (Ind. 2009) (explaining that where the defendant’s words and not his

deeds are at issue, Rule 404(b) does not apply). Because Rule 404(b) does not apply,

Detective Henry’s testimony could not have violated it. The trial court did not err in

denying Finney’s motion for a mistrial.

                                     IV.     Jury Instruction

       Finney also argues that the trial court erred in refusing to read to the jury his tendered

self-defense instruction, which provides as follows:

       It is an issue whether James D. Finney acted in self-defense.

       A person may use reasonable force against another person to protect himself
       from what the defendant reasonably believes to be the imminent use of
       unlawful force.

       A person is justified in using deadly force, and does not have a duty to retreat,
       only if he reasonably believes that deadly force is necessary to prevent
       serious bodily injury to himself.

Appellant’s App. p. 118.

       The manner of instructing the jury lies largely within the discretion of the trial court,

and we will reverse only for an abuse of that discretion. Henson v. State, 786 N.E.2d 274,

277 (Ind. 2003). In determining whether the trial court abused its discretion by declining

to give a tendered instruction, we consider the following: 1) whether the tendered


                                              13
instruction correctly states the law; 2) whether there was evidence presented at trial to

support giving the instruction; and 3) whether the substance of the instruction was covered

by other instructions that were given. Id. Here, the State claims that the instruction is an

incorrect statement of the law and that the evidence does not support giving it. The State

is correct on both counts.

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

Id. A person is justified in using reasonable force against another person to protect himself

or a third person from what he reasonably believes to be the imminent use of unlawful

force. Id. (citing Indiana Code § 35-41-3-2). The phrase “reasonably believes” as used in

the self-defense statute comprises both subjective and objective components. Washington

v. State, 997 N.E.2d 342, 349 (Ind. 2013). Specifically, the defendant must have a

subjective belief that force was necessary to protect himself, and this belief must be one

that a reasonable person would have held under the circumstances. Id. A claim of self-

defense also requires a defendant to have acted without fault, to have been in a place where

he or she had a right to be, and to have been in reasonable fear or apprehension of bodily

harm. White v. State, 699 N.E.2d 630, 635 (Ind. 1998).

       Here, Finney’s tendered instruction failed to instruct the jury that he was required

to have acted without fault, to have been in a place where he had a right to be, and to have

been in reasonable fear or apprehension of bodily harm. Finney’s instruction was an

incomplete and incorrect statement of the law, and the trial court did not err in failing to

give it.




                                             14
       In addition, the State is correct that there is no evidence to support giving this

instruction. Although Finney stated in his police interview that he shot Sarnecki because

Sarnecki scared him, Finney has never alleged that Sarnecki was armed or threatened him

with the unlawful use of deadly force. We agree with the State that “Finney’s subjective

fear as alleged in his interview is not coupled with any objective facts that would prompt a

reasonable person to fear death or great bodily harm.” Appellee’s Br. p. 20. We further

note that Finney shot Sarnecki in the back, which suggests that Sarnecki was either

retreating or about to retreat. In Howard v. State, 755 N.E.2d 242, 248 (Ind. Ct. App.

2001), this Court explained that a self-defense instruction was properly refused where the

defendant grabbed the victim after the victim had started to turn and walk away. Because

there is no evidence to support giving the instruction, the trial court did not err in failing to

give it.

                               V.      Sufficiency of the Evidence

       Finney next argues that there is insufficient evidence to support his murder

conviction. Specifically, his sole contention is that the State failed to establish that he did

not act in sudden heat, a factor that mitigates murder to voluntary manslaughter. Voluntary

manslaughter is a lesser included offense of murder, distinguishable by the factor of the

defendant having killed while acting under sudden heat. See Ind. Code § 35-42-1-3. To

establish sudden heat, the defendant must show sufficient provocation to engender passion.

Earl v. State, 715 N.E.2d 1265, 1267 (Ind. 1999). Sufficient provocation is demonstrated

by such emotions as anger, rage, sudden resentment, or terror sufficient to obscure the




                                               15
reason of an ordinary person, prevent deliberation and premeditation, and render the

defendant incapable of cool reflection. Id.

       Because there is no implied element of the absence of sudden heat in the crime of

murder, the State is under no obligation to negate the presence of sudden heat to obtain a

conviction. Id. However, once a defendant places sudden heat into issue, the State bears

the burden of negating the presence of sudden heat beyond a reasonable doubt. Id. The

State may meet this burden by rebutting the defendant’s evidence or affirmatively showing

in its case-in-chief that the defendant was not acting in sudden heat when the killing

occurred. Id.

       Here, Finney argues that his “fear of being caught trying to open car doors was

sufficient to provoke emotions that obscured Finney’s ability to reason, prevented

deliberation and premeditation, and rendered him incapable of cool reflection.”

Appellant’s Br. pp. 27-28. However, even assuming that Finney’s fear of being caught

trying to open car doors could establish the presence of sudden heat, the jury was under no

obligation to credit it. The existence of sudden heat is a classic question of fact to be

determined by the jury. Jackson v. State, 709 N.E.2d 326, 329 (Ind. 1999). Here, the jury

determined sudden heat did not exist. Finney’s argument is essentially an invitation to

reweigh the evidence, which we will not do. The State produced sufficient evidence to

establish that Finney was not acting in sudden heat when he killed Sarnecki.

                                       VI.     Sentence

       Lastly, Finney argues that his seventy-three-year sentence is inappropriate. Article

VII, section 4 of the Indiana Constitution authorizes independent appellate review of


                                              16
sentences. Rice v. State, 6 N.E.3d 940, 946 (Ind. 2014). This review is implemented

through Indiana Appellate Rule 7(B), which states that we may revise a sentence, even if

authorized by statute, if after due consideration of the trial court’s decision, the sentence is

inappropriate in light of the nature of the offense and the character of the offender. In

determining whether a sentence is inappropriate, this Court looks at the culpability of the

defendant, the severity of the crime, the damage done to others, and myriad other factors

that come to light in a given case. Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind. 2008).

Finney bears the burden on appeal of persuading us that his sentence is inappropriate. See

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

       As to the nature of the offense, Sarnecki followed Finney into a wooded area to

confront him after seeing him attempt to commit a crime. While the two men were briefly

in the woods, Finney shot an unarmed Sarnecki in the back and killed him.

       As to the character of the offender, we note that the significance of a criminal history

in assessing a defendant’s character is based on the gravity, nature and number of prior

offenses in relation to the current offense. Moss v. State, 13 N.E.3d 440, 447 (Ind. Ct. App.

2014), trans. denied. Even a minor criminal history is a poor reflection of a defendant’s

character. Id. at 448. Here, Finney has much more than a minor criminal history. He has

prior convictions for Class D felony intimidation, Class A misdemeanor Battery, and Class

A misdemeanor Theft. At the time of the sentencing hearing, he also had pending charges

for Battery, Criminal Recklessness, Carrying a Handgun without a License, and Dealing in

Marijuana, all Class C felonies. In addition, during his pre-trial incarceration, Finney was

disciplined for five separate instances of jail misconduct and was the subject of at least two


                                              17
other misconduct reports. Prior to his incarceration, Finney supported himself by selling

marijuana. The trial court correctly pointed out that Finney demonstrated an escalating

pattern of criminal behavior that revealed his disdain for authority and propensity for

violence. The trial court also correctly noted a probation violation demonstrating Finney’s

inability to follow the trial court’s rules and concluded that Finney might well prey upon

innocent citizens if released. Clearly, Finney has not reformed his criminal behavior

despite his numerous contacts with the criminal justice system. Considering the nature of

the offense and Finney’s character, Finney has not met his burden of proving that his

sentence is inappropriate. See Prowell v. State, 787 N.E.2d 997, 1004 (Ind. Ct. App. 2003),

trans. denied, (sentence for murder determined not to be inappropriate).

       Affirmed.

       BAKER, J., and BRADFORD, J., concur.




                                            18
