Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be
regarded as precedent or cited before                                     Mar 26 2014, 9:11 am
any court except for the purpose of
establishing the defense of res judicata,
collateral estoppel, or the law of the case.


ATTORNEY FOR APPELLANT:                            ATTORNEYS FOR APPELLEE:

PAUL J. PODLEJSKI                                  GREGORY F. ZOELLER
Anderson, Indiana                                  Attorney General of Indiana

                                                   CHANDRA K. HEIN
                                                   Deputy Attorney General
                                                   Indianapolis, Indiana


                               IN THE
                     COURT OF APPEALS OF INDIANA

DONOVAN BALL,                                      )
                                                   )
       Appellant-Defendant,                        )
                                                   )
               vs.                                 )      No. 48A02-1308-CR-714
                                                   )
STATE OF INDIANA,                                  )
                                                   )
       Appellee-Plaintiff.                         )


                     APPEAL FROM THE MADISON CIRCUIT COURT
                        The Honorable Thomas Newman, Jr., Judge
                            Cause No. 48C03-1207-FA-1241



                                         March 26, 2014


                MEMORANDUM DECISION - NOT FOR PUBLICATION


BRADFORD, Judge
                                    CASE SUMMARY

       At all times relevant to the instant appeal, Appellant-Defendant Donovan Ball was

closely associated with members of the Latin Kings gang. During the afternoon hours of

June 27, 2012, Ball was with two members of the Latin Kings gang, David Riverez and

Ruben Rosales. The three men were driving in a borrowed van when they saw Sergio Torres

walking down the street. Torres was a member of a rival gang, the Sorrento 13. Ball,

Riverez, and Rosales briefly returned to the residence at which Ball was staying so that Ball

could retrieve a baseball bat. The three men then went to find Torres. At that point, an eye

witnesses saw Ball get out of the van, approach Torres, and strike Torres multiple times in

the head with the baseball bat. Torres was severely injured as a result of the attack. Some of

his injuries are permanent.

       On July 5, 2012, Appellee-Plaintiff the State of Indiana charged Ball with one count

of Class D felony criminal gang activity and one Count of Class A felony attempted murder.

The trial court conducted a two-day jury trial on June 25, 2013 through June 26, 2013.

Following trial, the jury found Ball guilty as charged. On appeal, Ball contends that the trial

court abused its discretion in instructing the jury and in admitting certain evidence during

trial. Ball also contends that the evidence is insufficient to sustain his conviction for

attempted murder and that the trial court erred in sentencing him to an aggregate executed

term of fifty years in the Department of Correction (“DOC”). We affirm.

                       FACTS AND PROCEDURAL HISTORY

       At all times relevant to the instant appeal, Ball was closely associated with Rosales

                                              2
and Riverez, both of whom were in leadership positions of the Latin Kings gang. The Latin

Kings gang had an ongoing rivalry with another area gang, Sorrento 13. Torres was a

member of Sorrento 13.

       During the afternoon hours of June 27, 2012, Ball was with Rosales and Riverez. At

approximately 3:50 p.m., the three men were driving in a borrowed brown van when they

saw Torres walking down the street. When Ball saw Torres, he stated, “there’s one (1) of

those Sorrento 13 mother f[*]cker’s. [sic]” Tr. p. 250. Ball, Riverez, and Rosales then

returned to the residence where Ball was staying so that Ball could retrieve an aluminum

baseball bat. Soon thereafter, the three men left the residence.

       At approximately 4:00 p.m., Lilliana Cobos-Dominguez observed a brown van driving

down her street. From her kitchen window, she observed a man, later identified as Ball, exit

the van with an aluminum baseball bat at his side. Another man, later identified as Rosales,

also exited the van. Cobos-Dominguez watched as Ball approached a boy, later identified as

Torres, who was walking at the end of an alley. Cobos-Dominguez saw Ball strike Torres in

the head multiple times with the baseball bat. Ball and Rosales then fled the scene in the van,

which was being driven by Riverez.

       Cobos-Dominguez called 9-1-1 before helping Torres walk back to her residence to

wait for the police to arrive. Anderson Police Sergeant Amber Miller was dispatched to

Cobos-Dominguez’s residence. Upon arriving, Cobos-Dominguez took Sergeant Miller to

Torres. Sergeant Miller observed that Torres had “several lacerations to his head and his

right elbow was two (2) to three (3) [times] the size of what it should have been and he had

                                              3
blood all over him.” Tr. p. 179. Sergeant Miller requested medical assistance. While

waiting for the requested medical assistance to arrive, Torres “started drifting in and out of

conscientious [sic].” Tr. p. 180. Sergeant Miller told Torres “to keep his eyes open and [to]

keep talking to [her]. Tell [her] who he is, where he lived, what happened.” Tr. p. 180.

Torres told Sergeant Miller that Ball had battered him.

        Torres was subsequently transported to Saint John’s Hospital. Sergeant Miller was

met at the hospital by Anderson Police Officer Deena Dunn, who observed that Torres “was

injured and ill. He spoke very broken and kind of soft. He was coherent but you could tell

he was kind of struggling to speak and communicate clearly with us.” Tr. p. 198.

        Dr. Leonard Bielski, the emergency room physician who treated Torres at Saint John’s

Hospital, observed that on the Glasgow Coma Scale,1 Torres’s injuries ranked thirteen out of

fifteen in terms of severity. Dr. Bielski further observed that Torres “had multiple fractures,

in fact the whole right side of his skull was cracked up, essential [sic] like an egg from the

trauma … all the bones on the right side of his skull had been cracked.” Tr. p. 392. Dr.

Bielski noted that it takes “a fair amount of force to fracture the skull. It’s pretty well built.”

Tr. p. 392. Torres also suffered a subdural hemotoma and swelling and inflammation in his

skull. Dr. Bielski opined that if untreated, these injuries would have put Torres “at a clear

risk for dying.” Tr. p. 395. Dr. Bielski further opined that Torres will likely suffer chronic,

long-lasting, and even permanent injury.


        1
          The “Glasgow Coma Scale” is a tool used by the doctors at Saint John’s Hospital “to determine how
severely a head injury patient has been hurt.” Tr. p. 390.

                                                    4
       Due to the extent of his injures, Torres was transported by helicopter to Saint

Vincent’s Hospital in Indianapolis. Torres remained hospitalized at Saint Vincent Hospital

for seven days following the incident. He also underwent surgery to insert plates into his

head, which required an additional two-week hospital stay and two months of post-surgery

medical care. Torres still needs an additional surgery on his arm. Further, as a result of his

injuries, Torres has a difficult time concentrating and was required to repeat the tenth grade.

       Sergeant Miller subsequently went back to Cobos-Dominguez’s residence and showed

Cobos-Dominguez an array of photographs, including a photograph of Ball. Cobos-

Dominguez identified Ball as the perpetrator. Based upon information known to police

relating to where Ball resided, officers went to the residence to attempt to apprehend Ball,

Rosales, and Riverez. As police approached the residence, Ball fled through a window. Ball

was eventually apprehended near Shadyside Park.

       On July 5, 2012, the State charged Ball with one count of Class D felony criminal

gang activity and one count of Class A felony attempted murder. At trial, the State provided

eyewitness testimony that Ball struck Torres multiple times in the head with a baseball bat.

Other evidence further demonstrated that Ball retrieved the bat from his bedroom at the

residence at which he was staying just prior to the attack on Torres; that Ball was closely

associated with Rosales and Riverez, who were in leadership positions of the Latin Kings

gang; that Ball wished to be in a leadership position of the gang himself; and that Torres was

a member of a rival gang. At the conclusion of trial, the jury found Ball guilty as charged.

On July 22, 2013, the trial court sentenced Ball to an aggregate fifty-year executed term of

                                              5
incarceration. This appeal follows.

                               DISCUSSION AND DECISION

       On appeal, Ball contends (1) that the trial court abused its discretion in instructing the

jury, (2) that the trial court abused its discretion in admitting certain evidence at trial, (3) that

the evidence is insufficient to sustain his conviction for Class A felony attempted murder,

and (4) that the trial court erred in sentencing him. We will address each contention in turn.

                                      I. Jury Instructions

       Ball contends that the trial court abused its discretion in instructing the jury.

       “The purpose of a jury instruction ‘is to inform the jury of the law applicable
       to the facts without misleading the jury and to enable it to comprehend the case
       clearly and arrive at a just, fair, and correct verdict.’” Dill v. State, 741 N.E.2d
       1230, 1232 (Ind. 2001) (quoting Chandler v. State, 581 N.E.2d 1233, 1236
       (Ind. 1991)). Instruction of the jury is left to the sound judgment of the trial
       court and will not be disturbed absent an abuse of discretion. Schmidt v. State,
       816 N.E.2d 925, 930 (Ind. Ct. App. 2004), trans. denied. Jury instructions are
       not to be considered in isolation, but as a whole and in reference to each other.
        Id. The instructions must be a complete, accurate statement of the law which
       will not confuse or mislead the jury. Id. at 930-31. Still, errors in the giving or
       refusing of instructions are harmless where a conviction is clearly sustained by
       the evidence and the jury could not properly have found otherwise. Id. at 933
       (citing Dill, 741 N.E.2d at 1233).

Williams v. State, 891 N.E.2d 621, 630 (Ind. Ct. App. 2008).

       Ball claims that the trial court abused its discretion in instructing the jury because the

trial court failed to inform the jury that it must find that he acted with the specific intent to

kill Torres in order to find him guilty of attempted murder. Ball, however, concedes that he

did not object to the attempted murder instruction given at trial or tender a proper instruction.

As a result, Ball has waived this issue on appeal. See Boesch v. State, 778 N.E.2d 1276,

                                                 6
1279 (Ind. 2002); Clay v. State, 766 N.E.2d 33, 36 (Ind. Ct. App. 2002); Sanders v. State,

764 N.E.2d 705, 710 (Ind. Ct. App. 2002). On appeal, Ball attempts to avoid waiver of this

issue by claiming that the attempted murder jury instruction constituted fundamental error.

“The doctrine of fundamental error applies in an extremely narrow set of circumstances.”

Sanders, 764 N.E.2d at 710. “The fundamental error doctrine permits a reviewing court to

consider the merits of an improperly raised error if the reviewing court finds that the error

was so prejudicial to the rights of the appellant that he could not have had a fair trial.” Id. at

710-11.

       In Spradlin v. State, the Indiana Supreme Court adopted a rule of law which requires a

jury instruction to state that in order to convict a defendant of attempted murder, the jury

must find that the defendant intended to kill the victim while taking a substantial step toward

such a killing. 569 N.E.2d 948, 950 (Ind. 1991). “Therefore, an instruction that purports to

set forth the elements required for the jury to convict a defendant of attempted murder must

include an explanation that the act must have been done with the specific intent to kill.”

Sanders, 764 N.E.2d at 710 (citing Spradlin, 569 N.E.2d at 950). However, “[a] reversal of

an attempted murder conviction, despite a Spradlin error, is not required if either the intent of

the perpetrator is not a central issue at trial or the instructions as a whole sufficiently

suggested the requirement of the intent to kill.” Id. at 711 (citing Ramsey v. State, 723

N.E.2d 869, 872 (Ind. 2000); Swallows v. State, 674 N.E.2d 1317, 1318 (Ind. 1996)). In

addition, the Indiana Supreme Court has further held that when determining whether a

defendant suffered a due process violation based on an incorrect jury instruction, we look not

                                                7
to the erroneous instruction in isolation but in the context of all relevant information given to

the jury, including closing argument and other instructions. Boesch, 778 N.E.2d at 1279.

“There is no resulting due process violation where all such information, considered as a

whole, does not mislead the jury as to a correct understanding of the law.” Id.

       Turning to the instant matter, we note that with respect to the attempted murder

charge, the trial court instructed the jury as follows:

       These are your final instructions.… This is a criminal case brought by the
       State of Indiana. The case was commenced when the State of Indiana filed the
       following instruction: Information for … Count II, Attempted Murder, a Class
       A felony. On or about June 27, 2012 in Madison County, State of Indiana,
       Donovan Warren Ball did intentionally attempt to kill another human being, to
       wit: Sergio Torres.… The statutes in force at the time the defendant is alleged
       to have committed the charges [sic] offenses are as follows: … Indiana Code
       35-41-5-1, Attempt, reads as follows: a person attempts to commit a crime
       when, acting with the culpability required for commission of the crime, the
       person engages in conduct that constitutes a substantial step toward
       commission of the crime. An Attempt to commit a crime is a felony or
       misdemeanor of the same class as the crime attempted. It is no defense that,
       because of a misapprehension of the circumstances, it would have been
       impossible for the accused person to commit the crime attempted. Indiana
       Code 35-42-1-1, Murder, a person who knowingly or intentionally kills
       another human commits murder a felony.… Intentionally is describe [sic] as: a
       person engages in conduct “intentionally” if, when the person engages in the
       conduct, it is the person’s conscious objective to so engage in such conduct.

Tr. pp. 477-78, 484.

       Initially, we note that Ball correctly asserts that the trial court’s instructions to the jury

regarding attempt and murder do not specifically state that Ball could only be found guilty of

the charge of attempted murder if the State proved that he acted with the specific intent to kill

Torres. However, as is stated above, on appeal, we do not look to the allegedly erroneous


                                                 8
instruction in isolation but in the context of all relevant information given to the jury,

including closing argument and the other instructions. See Boesch, 778 N.E.2d at 1279. The

State, for its part, argues on appeal that, when read together as a whole, its closing argument

coupled with the other instructions given by the trial court make it clear that the jury could

only find Ball guilty of attempted murder if it determined that Ball acted with the specific

intent to kill Torres. We agree.

       Upon review, the record demonstrates that the charging information, which the trial

court read to the jury as part of its final instructions to the jury, included that statement that

Ball “did intentionally attempt to kill another human being, to wit: Sergio Torres.” Tr. p.

477. Further, during closing argument, the prosecuting attorney clearly indicated that in

order to find Ball guilty of attempted murder, the jury must find that he acted with the

specific intent to kill Torres, stating the following:

       I’m going to move to attempted murder. Now in this the State must prove that
       the defendant, specifically intended to kill Sergio Torres.… In fact the
       defendant’s own words, you heard the tapes. I don’t need to stand up her and
       try to prove to you that he had intended to kill Sergio Torres. If there had been
       my pistol, if I had my pistol there wouldn’t be no body living. There wouldn’t
       be no living if I had pistol. I’d got the job done. Is there any doubt in your
       mind? Is there any doubt in your mind? How can there be? … [Torres’s]
       injuries were that severe that he needed to be life lined and that’s because this
       defendant left him in the alley to die.… But anytime you take [a bat] and
       smash someone’s brain in like an egg shell … six (6) or seven (7) times. You
       intend but nothing to occur other than death. That’s your intent. That’s your
       clear intent. You didn’t just bash him one (1) time. You intended to get the
       job done and as a result of that ladies and gentleman this is what we have.

Tr. pp. 446-50. During rebuttal closing argument, the prosecuting attorney again referenced

the specific intent to kill, stating the following:

                                                9
        The intent to kill, once again straight from his mouth, you heard it on the tape,
        straight from his mouth. If I had my pistol he’d be dead.… And don’t forget
        really, that is what it comes down to. The only issue in this case is was there
        an intent to kill. The evidence is overwhelming, just the act alone, the beating
        of this kid, the severity of the beating is enough alone to show the intent to kill.
        What else do you have to show the intent to kill? If I had my pistol, I would
        have shot him. That’s specific intent to kill. Remember we talked about how
        do you find out what intent is? You have to look at the surrounding
        circumstances, well in this case its even better because he tells you. He told
        you in the phone conversation, if I would have had my pistol, no one would be
        alive. That shows that they intended to kill him when they beat him with a
        baseball bat.… [T]hat is just further intent on top of the already overwhelming
        evidence of intent to kill in this case.

Tr. pp. 473, 475-76.

        The State’s closing argument, rebuttal closing argument, and the text of the charging

information which was incorporated into the final jury instructions, when considered together

as a whole, make it very clear that Ball could only be convicted of attempted murder if the

jury found that he acted with the specific intent to kill Torres. Accordingly, we conclude that

these arguments and instructions, again when considered together as a whole, do not mislead

the jury as to a correct understanding of the law. As such, we further conclude that Ball did

not suffer a violation of due process such to warrant a finding of fundamental error.2 See

Boesch, 778 N.E.2d at 1279 (providing that there is no resulting due process violation where

all such information, considered as a whole, does not mislead the jury as to a correct

understanding of the law).



        2
            Even though we conclude that, in the instant matter, the failure to instruct the jury regarding specific
intent did not amount to fundamental error, we note that the better practice in future cases involving a charge of
attempted murder would be to include the requirement that the defendant act with the specific intent to kill in
the trial court’s instructions to the jury, and to delete the word knowingly from the definition of murder from
the trial court’s instructions to the jury.
                                                        10
                                 II. Admission of Evidence

       Ball also contends that the trial court abused its discretion in admitting certain

evidence at trial in violation of Indiana Evidence Rule 404(b).

       Our standard of review for rulings on the admissibility of evidence is
       essentially the same whether the challenge is made by a pre-trial motion to
       suppress or by an objection at trial. Ackerman v. State, 774 N.E.2d 970, 974-
       75 (Ind. Ct. App. 2002), reh’g denied, trans. denied. We do not reweigh the
       evidence, and we consider conflicting evidence most favorable to the trial
       court’s ruling. Collins v. State, 822 N.E.2d 214, 218 (Ind. Ct. App. 2005),
       trans. denied. We also consider uncontroverted evidence in the defendant’s
       favor. Id.

Cole v. State, 878 N.E.2d 882, 885 (Ind. Ct. App. 2007).

       A trial court has broad discretion in ruling on the admissibility of evidence.

Washington v. State, 784 N.E.2d 584, 587 (Ind. Ct. App. 2003) (citing Bradshaw v. State,

759 N.E.2d 271, 273 (Ind. Ct. App. 2001)). Accordingly, we will reverse a trial court’s

ruling on the admissibility of evidence only when the trial court abused its discretion. Id.

(citing Bradshaw, 759 N.E.2d at 273). An abuse of discretion involves a decision that is

clearly against the logic and effect of the facts and circumstances before the court. Id. (citing

Huffines v. State, 739 N.E.2d 1093, 1095 (Ind. Ct. App. 2000)).

       Ball claims that the trial court abused its discretion in admitting evidence relating to

certain telephone calls that he made from the jail telephones while being held in the Madison

County Jail prior to trial. Specifically, Ball argues that the challenged evidence was evidence

of other crimes, wrongs, or acts alleged to have been committed by Ball, and, as a result, was

admitted in violation of Evidence Rule 404(b).

       When addressing the admissibility of evidence under [Evidence] Rule 404(b),
                                            11
       courts must utilize a two-prong analysis. Scalissi v. State, 759 N.E.2d 618,
       623 (Ind. 2001). First, the court must assess whether the evidence has some
       relevancy to a matter at issue other than the defendant’s propensity to commit
       the charged act. Id. Second, the court must weigh the probative value of the
       evidence against its prejudicial effect, pursuant to Evidence Rule 403. Id. We
       will reverse a trial court’s determination of admissibility only for an abuse of
       discretion. Id.

Wages v. State, 863 N.E.2d 408, 410 (Ind. Ct. App. 2007).

       “Evidence Rule 404(b) was designed to assure that ‘the State, relying upon evidence

of uncharged misconduct, may not punish a person for his character.’” Lee v. State, 689

N.E.2d 435, 439 (Ind. 1997) (quoting Wickizer v. State, 626 N.E.2d 795, 797 (Ind. 1993)).

Evidence Rule 404(b)(1) provides that “[e]vidence of a crime, wrong, or other act is not

admissible to prove a person’s character in order to show that on a particular occasion the

person acted in accordance with the character.”        However, “[t]his evidence may be

admissible for another purpose, such as proving motive, opportunity, intent, preparation,

plan, knowledge, identity, absence of mistake, or lack of accident.” Ind. Evid. R. 404(b)(2).

In addition, “‘[e]vidence of happenings near in time and place that complete the story of the

crime is admissible even if it tends to establish the commission of other crimes not included

among those being prosecuted.’” Wages, 863 N.E.2d at 411 (quoting Bocko v. State, 769

N.E.2d 658, 664-65 (Ind. Ct. App. 2002), trans. denied). Moreover, Evidence Rule 404(b)

does not bar evidence of uncharged criminal acts that are “intrinsic” to the charged offense.

Lee, 689 N.E.2d at 439. “‘Other acts are ‘intrinsic’ if they occur at the same time and under

the same circumstances as the crimes charged.’” Wages, 863 N.E.2d at 411 (quoting Holden

v. State, 815 N.E.2d 1049, 1054 (Ind. Ct. App. 2004), trans. denied).

                                             12
               A. Statements Made During Jailhouse Telephone Calls on
                      November 10, 2012 and December 15, 2012

       On November 10, 2012, while incarcerated, Ball engaged in a conversation over the

jailhouse telephones with Shaylee Murdock regarding Ball’s relationship with Rosales.

During this conversation, Ball stated the following:

       I don’t think you really know what’s up man.… I don’t think you know what
       I’m about for real. I’m on a whole another level, you don’t even know. You
       wasn’t around the last six (6) months out of that man you weren’t even around
       so you don’t know. No body knows. I with [sic] through some whole other
       shit. I’ve done changed up for real. I did some stupid shit. [Rosales] and
       them had me on dumb ass shit. Going to Chicago once every two (2) weeks,
       went and getting it in. They had me down there on some dumb shit.… Hell
       man we was winning but I don’t know, [f*ck] it. I don’t know what’s going to
       happen when I get out of here.

Tr. p. 427. On December 15, 2012, again while incarcerated, Ball engaged in a conversation

over the jailhouse telephones with Dustin Rhoades regarding Ball’s prior interaction with

Sorrento 13. During this conversation, Ball stated the following:

       Man they ain’t talking about shit, you don’t know what was going on when
       you got looked up when we was on some dumb ass shit. We’d run around put
       pistol, put pistols in their mouth all kinds of shit.… Man they put us up with
       the police one (1) time and talking shit about whip you all so we don’t and then
       they come to the front so we didn’t know that there was cops, like (6) cop cars
       so we came to the back yard and we was walking from like Samantha’s house
       and those [n*gg*r’s] the same where we parked, we parked Edgar’s truck over
       there and we walked through the yard and shit. We came through back and
       they was all in the back we put our pistol on the shit but me and [Rosales] went
       up in yard and we got pistols to the head and shit and then Smokey said hey
       police, police, we barely got out. There was like twenty cops coming. We was
       like damn so we took off running the cops were on me like, I grabbed my arm
       and I swung, . . . (indiscernible) . . . stop stop so I hit . . . (indiscernible) . . .
       jumped in the truck and little Jacob that lives over next to my cousin and
       [Rosales] jumped in the back of the truck I was like no, no, . . . (indiscernible)
       . . . Movie shit, we was doing some dumb shit though but we were doing all
       kinds of shit. And then we were driving by down, drive by on Central and we
                                                13
         fell real back and [Rosales’s] girl in sisters car, so they went running down on
         Central and they don’t do nothing. We hit the breaks and was what’s up bitch,
         they all took off running.

Tr. pp. 433-34.

         Ball claims that the above-stated telephone conversations were inadmissible under

Evidence Rule 404(b) because they were entered merely to show Ball’s character in order to

show that on a particular occasion Ball acted in accordance with his character. The State, for

its part, argues that the above-stated telephone conversations were intrinsic to the charged

offense of felony gang activity and not offered as character evidence. We agree with the

State.

         Ball’s statements in both the November 10, 2012 and December 15, 2012

conversations indicate that Ball was engaged in criminal gang activity during the relevant

time period. These conversations depict acts that allegedly occurred near in time to the June

27, 2012 attack on Torres and help to complete the story regarding Ball’s involvement with

the Latin Kings gang. Upon review, we find that Ball’s statements during both of the above-

stated telephone conversations are intrinsic to the charged offense of felony gang activity.

Furthermore, Ball has failed to demonstrate that the alleged prejudicial effect of the above-

stated conversations outweighed their probative value. As such, we conclude that the trial

court did not abuse its discretion in admitting Ball’s statements during these conversations

into evidence.

         B. Statements Made During Jailhouse Telephone Call on April 22, 2013

         On April 22, 2013, again while incarcerated, Ball engaged in a conversation over the

                                               14
jailhouse telephones with Dustin Rhoades regarding whether Rhoades’s sister, who happened

to be Ball’s ex-girlfriend, would testify against Ball at his upcoming trial. During this

conversation, Ball stated the following:

       Well I don’t know if your sister is going to tell me or not.… Well I go to trial
       in a month man, They’re going to pull her in.… I need to know man.… You
       don’t think she will but maybe man, I need to know what the fuck is up. I ain’t
       talk to her in two (2) and half months though. You need to make sure that she
       don’t say shit.… Tell her I love her. Don’t get me locked up for nothing but
       tell her I love and I need to be out man. What do you mean you don’t know if
       she’ll let you. I count on you man, I need, she knows a lot though. . . .
       (indiscernible) . . . You don’t think she know where to get them. She knows
       everybody.… Yeah she is the key to everything.

Tr. pp. 434-36.

       Ball claims that his statements to Rhodes during the April 22, 2013 conversation are

irrelevant because they in no way related to any of the charged conduct. The State, for its

part, argues that Ball’s statements are relevant to demonstrate Ball’s guilty knowledge as they

effectively amount to threatening and intimidating comments regarding a potential State

witness. Again, we agree with the State.

       We have previously held that “threats by the accused against prosecution witnesses are

considered attempts to conceal or suppress implicating evidence and are ‘relevant and

admissible into evidence.’” Matthews v. State, 866 N.E.2d 821, 825 (Ind. Ct. App. 2007)

(quoting Johnson v. State, 472 N.E.2d 892, 910 (Ind.1985)). “Such threats are viewed as

admissions of guilt and therefore are relevant to demonstrate an accused’s guilty knowledge.”

Id. Accordingly, evidence of Ball’s seemingly threatening and intimidating statements to

Rhoades requesting that Rhoades convince his sister not to testify against Ball were

                                              15
admissible for a purpose other than to merely show his propensity to engage in wrongful acts.

Ball has failed to demonstrate an abuse of discretion by the trial court that would support

reversal on Evidence Rule 404(b) grounds.

                               III. Sufficiency of Evidence

       Ball also contends that the evidence is insufficient to sustain his conviction for Class

A felony attempted murder.

       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. 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. To preserve this
       structure, when appellate courts are confronted with conflicting evidence, they
       must consider it most favorably to the trial court’s ruling. Appellate courts
       affirm the conviction unless no reasonable fact-finder could find the elements
       of the crime proven beyond a reasonable doubt. It is therefore not necessary
       that the evidence overcome every reasonable hypothesis of innocence. 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, 146-47 (Ind. 2007) (citations, emphasis, and quotations

omitted). “In essence, we assess only whether the verdict could be reached based on

reasonable inferences that may be drawn from the evidence presented.” Baker v. State, 968

N.E.2d 227, 229 (Ind. 2012) (emphasis in original). Upon review, appellate courts do not

reweigh the evidence or assess the credibility of the witnesses. Stewart v. State, 768 N.E.2d

433, 435 (Ind. 2002).

       In order to convict Ball of Class A felony attempted murder, the State was required to

prove that on or about June 27, 2012, Ball did intentionally attempt to kill another human


                                              16
being, to wit: Torres. Ind. Code §§ 35-42-1-1, 35-41-5-1. “A conviction for attempted

murder requires proof of a specific intent to kill.” Mendenhall v. State, 963 N.E.2d 553, 568

(Ind. Ct. App. 2012) (citing Henley v. State, 881 N.E.2d 639, 652 (Ind. 2008)), trans. denied.

“Intent to kill may be inferred from the deliberate use of a deadly weapon in a manner likely

to cause death or serious injury.” Id.

       In the instant matter, the evidence most favorable for the verdict demonstrates that

Ball struck Torres in the head multiple times with an aluminum baseball bat. Ball struck

Torres with enough force to crack Torres’s skull. Ball’s actions also caused Torres to suffer

a subdural hemotoma and swelling and inflammation in his skull. Dr. Bielski opined that if

untreated, these injuries would have put Torres “at a clear risk for dying.” Tr. p. 395. Dr.

Bielski further opined that Torres will likely suffer chronic, long-lasting, and even permanent

injury. Moreover, Ball subsequently made a statement indicating that he wanted to kill

Torres, suggesting that Torres was lucky that Ball did not have his pistol on him at the time

of the attack “or there would have been a whole different shit and there wouldn’t be no liven

and shit.” Tr. p. 425. We conclude that intent to kill can be inferred from these facts as they

demonstrate that Ball deliberately used a deadly weapon in a manner that was likely to cause

death or serious injury. See Osborne v. State, 754 N.E.2d 916, 925 (Ind. 2001) (upholding

defendant’s conviction for attempted murder where the defendant struck the victim

approximately seven times in the head and face with an iron bar and hammer); McGee v.

State, 699 N.E.2d 264, 266 (Ind. 1998) (upholding defendant’s conviction for attempted

murder where the defendant stated that he was going to kill the victim, beat the defendant

                                              17
with a baseball bat, and held the defendant down so that his co-defendant could attack the

victim). Ball’s claim to the contrary effectively amounts to a request to reweigh the

evidence, which we will not do. See Stewart, 768 N.E.2d at 435.

                                    IV. Sentencing Issues

       Ball also contends that the trial court erred in sentencing him. In raising this

contention, Ball claims that the trial court failed to consider and properly weigh certain

mitigating factors. Ball also claims that his fifty-year executed sentence is inappropriate. We

will consider each claim in turn.

                                    A. Abuse of Discretion

       Ball claims that the trial court failed to find and accord proper weight to certain

mitigating circumstances.

       The finding of mitigating factors is not mandatory and rests within the
       discretion of the trial court. The trial court is not obligated to accept the
       defendant’s arguments as to what constitutes a mitigating factor. Nor is the
       court required to give the same weight to proffered mitigating factors as the
       defendant does. Further, the trial court is not obligated to explain why it did
       not find a factor to be significantly mitigating. However the trial court may
       not ignore facts in the record that would mitigate an offense, and a failure to
       find mitigating circumstances that are clearly supported by the record may
       imply that the trial court failed to properly consider them.

Espinoza v. State, 859 N.E.2d 375, 387 (Ind. Ct. App. 2006) (citations and quotation marks

omitted).

       Here, Ball argued four mitigating circumstances at sentencing: (1) his young age, (2)

his lack of a substantial criminal history, (3) he exhibited remorse, and (4) he played a limited

role in the attack on Torres. On appeal, Ball claims that the trial court failed to give proper

                                               18
mitigating weight to his age and lack of a substantial criminal history. Ball also claims that

the trial court failed to find his alleged remorse, alleged limited role in the attack on Torres

and the fact that he was raised in a broken home to be mitigating.

                1. Young Age & Lack of a Substantial Criminal History

       Ball claims that the trial court abused its discretion in failing to apply appropriate

mitigating weight to his young age and his lack of a substantial criminal history. Ball’s claim

in this regard, however, in unavailable for appellate review. See Anglemyer v. State, 868

N.E.2d 482, 491 (Ind. 2007), modified on other grounds on reh’g, 875 N.E.2d 218 (Ind.

2007) (providing that “[b]ecause the trial court no longer has any obligation to ‘weigh’

aggravating and mitigating factors against each other when imposing a sentence, unlike the

pre-Blakely statutory regime, a trial court can not now be said to have abused its discretion in

failing to ‘properly weigh’ such factors”).

                                          2. Remorse

       Ball also claims that the trial court abused its discretion in finding that his alleged

remorse was not sincere. With respect to Ball’s alleged remorse, the trial court, which has

the ability to directly observe the defendant and listen to the tenor of his voice, is in the best

position to determine whether the remorse is genuine. Corralez v. State, 815 N.E.2d 1023,

1025 (Ind. Ct. App. 2004). At the sentencing hearing, the trial court noted Ball’s alleged

remorse. However, the trial court also alluded to the fact that Ball demonstrated remorse

only after his mother advised him to show remorse. Because the trial court was in the best

position to directly observe Ball to determine whether his alleged remorse was genuine, we

                                               19
will not disturb the trial court’s determination that this was not a significant mitigating factor.

See id.

                       3. Alleged Limited Role in Attack on Torres

       Ball next claims that the trial court should have considered his alleged limited role in

the attack on Torres to be a mitigating factor. The record, however, does not support the

claim that Ball played a limited role in the attack on Torres. Rather, the record demonstrates

that Ball retrieved the aluminum baseball bat from his bedroom, sought out Torres, and beat

him in the head multiple times with the baseball bat.

       Again, the finding of mitigating factors is within the discretion of the trial court, and

the trial court is not obligated to accept the defendant’s contentions as to what constitutes a

significant mitigating factor. McCann v. State, 749 N.E.2d 1116, 1121 (Ind. 2001) (citing

Legue v. State, 688 N.E.2d 408, 411 (Ind. 1997)). “‘An allegation that the trial court failed

to identify or find a mitigating [factor] requires the defendant to establish that the mitigating

evidence is both significant and clearly supported by the record.’” Id. (quoting Carter, 711

N.E.2d at 838). Ball has failed to do so. As such, the trial court did not abuse its discretion

in failing to find Ball’s alleged limited role in the attack on Torres to be a mitigating factor.

                                 4. Raised in Broken Home

       Ball also claims that the trial court should have considered the fact that he was raised

in a broken home to be a mitigating factor. Ball, however, did not raise this claim before the

trial court. “‘A defendant who fails to raise proposed mitigators at the trial court level is

precluded from advancing them for the first time on appeal.’” Johnson v. State, 837 N.E.2d

                                                20
209, 215 (Ind. Ct. App. 2005) (quoting Pennington v. State, 821 N.E.2d 899, 905 (Ind. Ct.

App. 2005)). Therefore, Ball has waived this claim on appeal.

       In sum, from our review of the record, we are convinced that the trial court considered

all evidence of the alleged mitigating factors presented during the sentencing hearing by

Ball. The trial court made a clear sentencing statement recognizing all mitigating factors

argued by the parties. Again, a trial court has discretion to find mitigating circumstances

and, absent an abuse of discretion, this court will not remand for resentencing. See

Hardebeck v. State, 656 N.E.2d 486, 493 (Ind. Ct. App. 1995), trans. denied. Ball has not

shown an abuse of discretion in this regard.

                              B. Appropriateness of Sentence

       Ball also challenges his sentence by claiming that it is inappropriate in light of the

nature of his offense and his character. Indiana Appellate Rule 7(B) provides that “The

Court may revise a sentence authorized by statute if, after due consideration of the trial

court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the

offense and the character of the offender.” In analyzing such claims, we “‘concentrate less

on comparing the facts of [the case at issue] to others, whether real or hypothetical, and more

on focusing on the nature, extent, and depravity of the offense for which the defendant is

being sentenced, and what it reveals about the defendant’s character.’” Paul v. State, 888

N.E.2d 818, 825 (Ind. Ct. App. 2008) (quoting Brown v. State, 760 N.E.2d 243, 247 (Ind. Ct.

App. 2002), trans. denied). The defendant bears the burden of persuading us that his

sentence is inappropriate. Sanchez v. State, 891 N.E.2d 174, 176 (Ind. Ct. App. 2008).

                                               21
       In claiming that his sentence is inappropriate, Ball argues that the trial court’s order

that his entire fifty-year sentence be executed in the DOC renders his sentence inappropriate.

We note that we have previously determined that it will be quite difficult for a defendant to

prevail on a claim that the placement of his sentence is inappropriate. King v. State, 894

N.E.2d 265, 267 (Ind. Ct. App. 2008) (citing Fonner v. State, 876 N.E.2d 340, 343 (Ind. Ct.

App. 2007)).

       This is because the question under Appellate Rule 7(B) is not whether another
       sentence is more appropriate; rather, the question is whether the sentence
       imposed is inappropriate. [Fonner, 876 N.E.2d at 344]. A defendant
       challenging the placement of a sentence must convince us that the given
       placement is itself inappropriate. Id. As a practical matter, trial courts know
       the feasibility of alternative placements in particular counties or communities.
       Id. at 343. For example, a court is aware of the availability, costs, and entrance
       requirements of community corrections placements in a specific locale. Id. at
       343-44.

Id. at 268 (emphasis in original).

       Ball does not provide any argument regarding what he believes would be a more

appropriate placement on appeal. Instead, he argues that the length of his executed sentence

is inappropriate. We cannot agree.

       With respect to the nature of Ball’s offense, the record demonstrates that Ball engaged

in criminal gang activity. The record further demonstrates that Ball retrieved the aluminum

baseball bat from his bedroom, sought out Torres, and beat him in the head multiple times

with the baseball bat. Ball then fled the scene, leaving Torres injured in an alley. Torres

suffered serious injuries as a result of the attack which could likely have resulted in his death

without timely medical attention. In addition, Torres will likely suffer chronic long-term, if

                                               22
not permanent, injury as a result of the attack.

       With respect to Ball’s character, the record demonstrates that Ball did not appear to be

genuinely remorseful for his actions and indicated that he had no desire to alter his lifestyle if

released from prison. Ball also indicated that he planned to flee to Mexico if he could

convince anyone to pay his bail. In addition, while Ball did not have a substantial criminal

history, he was on juvenile probation at the time he committed the instant offense. Upon

review, we conclude that Ball has failed to meet his burden of proving that his fifty-year

executed sentence is inappropriate.

                                       CONCLUSION

       In sum, we conclude that (1) the trial court did not abuse its discretion in instructing

the jury, (2) the trial court did not abuse its discretion in admitting the challenged evidence at

trial, (3) the evidence is sufficient to sustain Ball’s conviction for Class A felony attempted

murder, and (4) the trial court did not err in sentencing Ball. Accordingly, we affirm the

judgment of the trial court.

       The judgment of the trial court is affirmed.

RILEY, J., and ROBB, J., concur.




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