MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
                                                                            FILED
this Memorandum Decision shall not be
regarded as precedent or cited before any                              Sep 30 2019, 10:31 am

court except for the purpose of establishing                                CLERK
                                                                        Indiana Supreme Court
the defense of res judicata, collateral                                    Court of Appeals
                                                                             and Tax Court
estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Bruce W. Graham                                          Curtis T. Hill, Jr.
Graham Law Firm P.C.                                     Attorney General of Indiana
Lafayette, Indiana
                                                         Angela N. Sanchez
                                                         Assistant Section Chief, Criminal
                                                         Appeals
                                                         Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Gabriel E. Hallman,                                      September 30, 2019
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         19A-CR-426
        v.                                               Appeal from the Tippecanoe
                                                         Superior Court
State of Indiana,                                        The Honorable Randy J. Williams,
Appellee-Plaintiff.                                      Judge
                                                         Trial Court Cause No.
                                                         79D01-1702-F1-2



Najam, Judge.




Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019               Page 1 of 19
                                       Statement of the Case
[1]   Gabriel Hallman appeals his conviction and sentence for neglect of a

      dependent, as a Level 1 felony, following a jury trial. Hallman presents the

      following issues for our review:


              1.       Whether the trial court abused its discretion when it
                       admitted into evidence testimony that Hallman had
                       previously threatened to kill his stepson Z.H.

              2.       Whether the trial court committed fundamental error
                       during the State’s closing argument.

              3.       Whether the State presented sufficient evidence to support
                       his conviction.

              4.       Whether the trial court abused its discretion when it
                       sentenced him.

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


[2]   We affirm.


                                 Facts and Procedural History
[3]   In 2012, Hallman married Tiphani Jennings. In April 2015, Jennings gave birth

      to a son, Z.H., but Hallman was not Z.H.’s biological father. In October 2015,

      Hallman, Jennings, and Z.H. moved into an apartment with Dominic Fultz

      and Krystin Johnson in Lafayette. At some point, Hallman became

      unemployed, so he took care of Z.H. when Jennings was at work. On one

      occasion in late Summer or early Fall of 2015, Hallman called Jennings’ mother

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 2 of 19
      and asked her to watch Z.H. She refused, but Hallman brought Z.H. to her

      house and told her, “if you don’t watch him, fine, I’ll fucking kill him.” Tr.

      Vol. 2 at 91.


[4]   On October 21, Jennings went to work and left Z.H. in Hallman’s care. At

      around 3:00 a.m. the next morning, Hallman left Z.H. in his crib and went to

      pick up Jennings from work. When Hallman left, Johnson was asleep in a

      room across the hall from Z.H. When Jennings got home, she checked on Z.H.

      and observed that he had a “dead stare,” and Z.H. had defecated “three times

      everywhere all over” their bed. Id. at 65. Against Hallman’s wishes, Jennings

      insisted that they take Z.H. to a local emergency room. There, Z.H. was

      diagnosed as being constipated and dehydrated and as having a possible

      respiratory infection. Upon his discharge from the emergency room at

      approximately 8:00 a.m., Z.H. was not having difficulty breathing.


[5]   Later that morning, at approximately 10:15 a.m., Jennings left the apartment,

      and she left Z.H. with Hallman in the living room. Fultz was asleep upstairs.

      Only a few minutes after Jennings left, Z.H. “went limp,” and Hallman called

      9-1-1. Id. at 122. Hallman performed C.P.R. on Z.H., and when emergency

      medical personnel arrived, Z.H. was not breathing and had no pulse. En route

      to a local hospital, Z.H. regained a pulse, but he still had no heartbeat and was

      not breathing. Z.H. was transported by helicopter to Peyton Manning

      Children’s Hospital in Indianapolis. Once there, Z.H.’s pupils were fixed and

      dilated, which was indicative of trauma to his head. Z.H. was removed from

      life support two days later and died. A forensic pathologist subsequently

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 3 of 19
      determined that Z.H. died as a result of blunt force trauma to the head caused

      by a “direct blow injury.” Id. at 244. And the pathologist concluded that

      Z.H.’s death was a homicide.


[6]   The State charged Hallman with two counts of neglect of a dependent, one as a

      Level 1 felony and one as a Level 3 felony; and three counts of battery, one as a

      Level 2 felony, one as a Level 3 felony, and one as a Level 5 felony. A jury

      found Hallman guilty as charged, but the trial court entered judgment of

      conviction only on one count of neglect of a dependent, as a Level 1 felony.

      The court sentenced Hallman to thirty-nine years executed. This appeal

      ensued.


                                     Discussion and Decision
                                 Issue One: Prior Threat to Kill Z.H.

[7]   Hallman first contends that the trial court abused its discretion when it admitted

      Jennings’ mother’s testimony that Hallman had threatened to kill Z.H.

      approximately four or five weeks before Z.H.’s death. Hallman concedes that

      that testimony “might have [had] some minimal evidentiary value to

      demonstrate motive or relationship of the parties,” but he insists that “its

      prejudicial effect greatly outweighs any evidentiary value.” Appellant’s Br. at

      21. We cannot agree.


[8]   As our Supreme Court has explained:


              Generally, a trial court’s ruling on the admission of evidence is
              accorded a great deal of deference on appeal. Because the trial

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 4 of 19
              court is best able to weigh the evidence and assess witness
              credibility, we review its rulings on admissibility for abuse of
              discretion and only reverse if a ruling is clearly against the logic
              and effect of the facts and circumstances and the error affects a
              party’s substantial rights.


      Hall v. State, 36 N.E.3d 459, 466 (Ind. 2015) (citations and quotation marks

      omitted).


[9]   Indiana Evidence Rule 404(b) generally prohibits “[e]vidence of a crime,

      wrong, or other act . . . to prove a person’s character in order to show that on a

      particular occasion the person acted in accordance with the character.” But

      such evidence “may be admissible for another purpose, such as proving motive,

      opportunity, intent, preparation, plan, knowledge, identity, absence of mistake,

      or lack of accident.” Id.


              Evidence Rule 404(b) is designed to prevent the jury from
              making the “forbidden inference” that prior wrongful conduct
              suggests present guilt. Halliburton v. State, 1 N.E.3d 670, 681
              (Ind. 2013) (citing Byers v. State, 709 N.E.2d 1024, 1026-27 (Ind.
              1999)). Or, as stated in Bassett v. State, 795 N.E.2d 1050, 1053
              (Ind. 2003), the purpose behind Evidence Rule 404(b) is to
              “prevent[ ] the State from punishing people for their character,
              and evidence of extrinsic offenses poses the danger that the jury
              will convict the defendant because . . . he has a tendency to
              commit other crimes.” (Internal quotation omitted). In assessing
              the admissibility of evidence under Evidence Rule 404(b), the
              trial court must first determine that the evidence of other crimes,
              wrongs, or acts is relevant to a matter at issue other than the
              defendant’s propensity to commit the charged act, and then
              balance the probative value of the evidence against its prejudicial
              effect pursuant to Evidence Rule 403. Halliburton, 1 N.E.3d at

      Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 5 of 19
               681-82 (citing Wilson v. State, 765 N.E.2d 1265, 1270 (Ind. 2002)).
               The effect of Rule 404(b) is that evidence is excluded only when
               it is introduced to prove the forbidden inference of demonstrating
               the defendant’s propensity to commit the charged crime. Rogers
               v. State, 897 N.E.2d 955, 960 (Ind. Ct. App. 2008), trans. denied.


       Laird v. State, 103 N.E.3d 1171, 1177 (Ind. Ct. App. 2018), trans. denied.


[10]   Here, the State contends that the challenged evidence was not admitted to show

       Hallman’s propensity to commit attempted murder; rather, it was admitted to

       show Hallman’s motive, his state of mind, and his relationship with Z.H. See

       id.; Evid. R. 404(b). Evidence of motive is always relevant in the proof of a

       crime. Ross v. State, 676 N.E.2d 339, 346 (Ind. 1996). A defendant’s prior bad

       acts are also usually admissible to show the relationship between the defendant

       and the victim. Id.


[11]   As the State correctly points out, our Supreme Court has twice held that a

       defendant’s threat to kill his victim months before a murder was admissible

       under Trial Rules 403 and 404(b). In Ross, the defendant had threatened to kill

       his ex-wife two months before he murdered her. The trial court permitted that

       evidence at Ross’ trial, and, on appeal, the Court held that “[t]he trial court

       clearly acted within the bounds of its discretion in admitting th[at] evidence.”

       676 N.E.2d at 346. And in Berry v. State, the trial court admitted into evidence

       testimony that the defendant had threatened to kill his parents six months

       before he murdered them. 704 N.E.2d 462, 464 (Ind. 1998). On appeal, the

       Court observed that the defendant’s prior threat “was presented as part of more

       general testimony about the relationship between the defendant and the rest of
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 6 of 19
       his family,” and the Court held that the trial court did not abuse its discretion

       when it admitted the evidence. Id.


[12]   Here, the State presented testimony that Hallman frequently complained about

       having to care for Z.H. Hallman also complained to Jennings that Z.H. cried

       too much. On one occasion, Hallman “didn’t want to watch” Z.H. and

       dropped him off with Jennings at her place of employment. Tr. Vol. 2 at 62. In

       addition, Jennings testified that she and Hallman sometimes argued about the

       fact that Hallman was not Z.H.’s biological father. In the context of this

       general testimony, Jennings’ mother’s testimony that Hallman had threatened

       to kill Z.H. when she refused to take over the care of Z.H. for Hallman

       approximately four to five weeks before Z.H.’s death was relevant to show

       Hallman’s relationship with Z.H. and his motive in committing neglect of a

       dependent. And we hold that the probative value of that evidence outweighed

       any prejudice to Hallman. See Laird, 103 N.E.3d at 1177; see also Snow v. State,

       77 N.E.3d 173, 177 (Ind. 2017) (stating trial court has “wide discretion” in

       making Rule 403 determination). Thus, the trial court did not abuse its

       discretion when it admitted the challenged evidence.


                                      Issue Two: Fundamental Error

[13]   Hallman next contends that the trial court committed fundamental error during

       the State’s closing argument at trial. The prosecutor stated in relevant part as

       follows:


               That’s why Dr. Cavanaugh’s manner of death conclusion was
               homicide. Not undetermined, not accident, it was homicide
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 7 of 19
               because something had to have been done to him in order to
               inflict such an injury. We also know this because if it was an
               accident that happened while the baby was in the defendant’s
               care, the defendant never provided a reasonable explanation for what did
               happen. He . . . had an opportunity, he talked to Detective
               Pinkard, Detective Pinkard even asked him after he came up
               with the examples of the softball three or four weeks prior which
               we know unequivocally could not have caused the injury.
               Detective Pinkard asked, asked him, was there anything, any
               accident that happened after the girls left that morning that could
               have caused this? No.


       Tr. Vol. 3 at 23-24 (emphasis added). Hallman maintains that the prosecutor’s

       reference to Hallman’s failure to provide a reasonable explanation for what

       happened to Z.H. was an improper reference to Hallman’s failure to testify,

       which constituted prosecutorial misconduct. Because Hallman did not object to

       the remark, he alleges fundamental error on appeal.


[14]   As our Supreme Court has explained,


               [i]n reviewing a claim of prosecutorial misconduct properly
               raised in the trial court, we determine (1) whether misconduct
               occurred, and if so, (2) “whether the misconduct, under all of the
               circumstances, placed the defendant in a position of grave peril to
               which he or she would not have been subjected” otherwise. A
               prosecutor has the duty to present a persuasive final argument
               and thus placing a defendant in grave peril, by itself, is not
               misconduct. “Whether a prosecutor’s argument constitutes
               misconduct is measured by reference to case law and the Rules of
               Professional Conduct. The gravity of peril is measured by the
               probable persuasive effect of the misconduct on the jury’s
               decision rather than the degree of impropriety of the conduct.”
               To preserve a claim of prosecutorial misconduct, the defendant
               must—at the time the alleged misconduct occurs—request an
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 8 of 19
        admonishment to the jury, and if further relief is desired, move
        for a mistrial.

        Our standard of review is different where a claim of prosecutorial
        misconduct has been procedurally defaulted for failure to properly raise
        the claim in the trial court, that is, waived for failure to preserve the claim
        of error. The defendant must establish not only the grounds for
        prosecutorial misconduct but must also establish that the
        prosecutorial misconduct constituted fundamental error.
        Fundamental error is an extremely narrow exception to the
        waiver rule where the defendant faces the heavy burden of
        showing that the alleged errors are so prejudicial to the
        defendant’s rights as to “make a fair trial impossible.” In other
        words, to establish fundamental error, the defendant must show
        that, under the circumstances, the trial judge erred in not sua
        sponte raising the issue because alleged errors (a) “constitute
        clearly blatant violations of basic and elementary principles of
        due process” and (b) “present an undeniable and substantial
        potential for harm.” The element of such harm is not established
        by the fact of ultimate conviction but rather “depends upon
        whether [the defendant’s] right to a fair trial was detrimentally
        affected by the denial of procedural opportunities for the
        ascertainment of truth to which he otherwise would have been
        entitled.” In evaluating the issue of fundamental error, our task
        in this case is to look at the alleged misconduct in the context of
        all that happened and all relevant information given to the jury—
        including evidence admitted at trial, closing argument, and jury
        instructions—to determine whether the misconduct had such an
        undeniable and substantial effect on the jury’s decision that a fair
        trial was impossible.

        We stress that “[a] finding of fundamental error essentially
        means that the trial judge erred . . . by not acting when he or she
        should have. . . .” Fundamental error is meant to permit
        appellate courts a means to correct the most egregious and
        blatant trial errors that otherwise would have been procedurally
        barred, not to provide a second bite at the apple for defense
Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019    Page 9 of 19
               counsel who ignorantly, carelessly, or strategically fail to preserve
               an error.


       Ryan v. State, 9 N.E.3d 663, 667-68 (Ind. 2014) (emphasis added, citations and

       footnotes omitted).


[15]   Here, Hallman makes thorough and cogent argument on the question of

       prosecutorial misconduct, but his argument on the question of fundamental

       error is woefully inadequate, and he has waived this issue for our review. After

       citing Ryan for the principle that fundamental error is a “narrow exception to

       the waiver rule” and requires him to show that “the error is so prejudicial to the

       defendant’s rights as to make a fair trial impossible,” Hallman’s entire argument

       consists of the following: “It seems to this author that requiring Hallman to

       prove that he was not guilty by providing evidence that the incident was an

       accident—constitutes prejudicial error. Hallman was not entitled to a perfect

       trial, but he was entitled to a fair one.” Appellant’s Br. at 19. Because Hallman

       has not made cogent argument in support of his fundamental error claim, it is

       waived.


[16]   Waiver notwithstanding, taken in context, the prosecutor’s reference to

       Hallman’s failure to provide a reasonable explanation for Z.H.’s injuries to law

       enforcement and others during the investigation was not an improper reference

       to Hallman’s failure to testify at trial. And, even if it were, the remark could

       not be characterized as so blatantly improper as to “present an undeniable and

       substantial potential for harm” to Hallman such that the trial court should have


       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 10 of 19
       sua sponte ruled that the prosecutor had committed misconduct. Ryan, 9 N.E.3d

       at 668.


                                Issue Three: Sufficiency of the Evidence

[17]   Hallman next contends that the State presented insufficient evidence to support

       his conviction. When reviewing a claim of insufficient evidence to sustain a

       conviction, we consider only the probative evidence and reasonable inferences

       supporting the verdict. Meehan v. State, 7 N.E.3d 255, 257 (Ind. 2014).


               “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. 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. [T]he evidence is sufficient
               if an inference may reasonably be drawn from it to support the
               verdict.”


       Id. (quoting Drane v. State, 867 N.E.2d 144, 146-47 (Ind. 2007)).


[18]   To prove neglect of a dependent, as a Level 1 felony, the State was required to

       show that Hallman had the care of Z.H., who was a dependent under the age of

       fourteen, and he knowingly or intentionally placed Z.H. in a position that

       endangered Z.H.’s life or health and which resulted in Z.H.’s death. Ind. Code

       § 35-46-1-4 (2015). On appeal, Hallman challenges the sufficiency of the

       evidence to prove either that he placed Z.H. in a situation that endangered his

       life or health or that he was the person who neglected Z.H. We address each

       contention in turn.
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 11 of 19
                                                 Endangerment

[19]   Hallman asserts that “the Neglect of a Dependent statute does not apply to this

       instant fact situation as there is simply no evidence to demonstrate that

       Hallman placed [Z.H.] in a situation that endangered [Z.H.’s] life or health.”

       Appellant’s Br. at 23. He maintains that the statute “does not envision

       intentional acts including battery.” Id. at 24. In essence, Hallman contends

       that, while the evidence might support his commission of a battery against

       Z.H., it does not support his placement of Z.H. in a situation that endangered

       him. We cannot agree.


[20]   This court rejected the same argument made by the appellant in Eastman v.

       State, 611 N.E.2d 139, 140 (Ind. Ct. App. 1993). In Eastman, as here, the

       defendant was caring for her infant when he was found to be “limp, gray,

       having difficulty breathing and his eyes were fixed.” Id. When Eastman

       appealed her conviction for neglect of a dependent, she argued that, “while she

       might have been charged with battery concerning [the infant], neglect was an

       inappropriate charge and one not sustained by the evidence.” Id. We rejected

       that claim and held as follows:


               Clearly, Eastman had the care of her dependent, Dennis, and the
               boy suffered serious bodily injury. There is a reasonable
               inference from the evidence that Eastman knowingly or
               intentionally inflicted the injury to the boy’s skull. In doing so
               she placed him in a situation that endangered his life or health.
               That is what the statute proscribes.


       Id. at 141.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 12 of 19
[21]   Likewise, here, Hallman had the care of his dependent, Z.H., and Z.H. suffered

       serious bodily injury that led to his death. There is a reasonable inference from

       the evidence that Hallman knowingly or intentionally inflicted the injury to the

       boy’s skull. In so doing, he placed him in a situation that endangered his life or

       health, and the evidence is sufficient to prove that element of the offense. See id.


                                                      Identity

[22]   Hallman asserts that, while the evidence “may have demonstrated the

       opportunity for Hallman to commit the act—and while the circumstances under

       which it occurred may have been suspicious[,]” the State presented insufficient

       evidence to prove that he was the person who injured Z.H. and caused his

       death. Appellant’s Br. at 26 (emphases original). But Hallman merely asks that

       we reweigh the evidence, which we will not do.


[23]   The State presented evidence that someone inflicted a blow to Z.H.’s head that

       caused him to stop breathing, and the State presented expert testimony that the

       onset of Z.H.’s symptoms after the blow would have been “very quick.” Tr.

       Vol. 2 at 53. Jennings testified that, at approximately 10:15 a.m. on October

       22, 2015, she left Z.H. in Hallman’s care in their living room while Foltz was

       sleeping upstairs. Only seven minutes later, Hallman called 9-1-1 to report that

       Z.H. had stopped breathing. We hold that the State presented sufficient

       evidence to prove that Hallman was the person who inflicted the fatal blow to

       Z.H.’s head.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 13 of 19
                            Issue Four: Abuse of Discretion in Sentencing

[24]   Hallman contends that the trial court abused its discretion when it sentenced

       him. Sentencing decisions lie within the sound discretion of the trial court.

       Cardwell v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). An abuse of discretion

       occurs if the decision is “clearly against the logic and effect of the facts and

       circumstances before the court, or the reasonable, probable, and actual

       deductions to be drawn therefrom.” Gross v. State, 22 N.E.3d 863, 869 (Ind. Ct.

       App. 2014) (citation omitted), trans. denied.


[25]   A trial court abuses its discretion in sentencing if it does any of the following:


               (1) fails “to enter a sentencing statement at all;” (2) enters “a
               sentencing statement that explains reasons for imposing a
               sentence—including a finding of aggravating and mitigating
               factors if any—but the record does not support the reasons;” (3)
               enters a sentencing statement that “omits reasons that are clearly
               supported by the record and advanced for consideration;” or (4)
               considers reasons that “are improper as a matter of law.”


       Id. (quoting Anglemyer v. State, 868 N.E.2d 482, 490-491 (Ind.), clarified on reh’g

       other grounds, 875 N.E.2d 218 (Ind. 2007)).


[26]   The sentencing range for a Level 1 felony is twenty years to forty years, with an

       advisory sentence of thirty years. I.C. § 35-50-2-4. Here, at sentencing, the trial

       court identified the following aggravating factors: Hallman’s criminal history;

       his history of substance abuse; the “tender age of the victim”; the likelihood that

       he would reoffend; and previous attempts at rehabilitation have failed. Tr. Vol.

       3 at 92. And the trial court identified two mitigating factors: Hallman’s

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 14 of 19
       employment history and family support. The trial court sentenced Hallman to

       thirty-nine years executed.


[27]   Hallman asserts that the trial court abused its discretion when it considered

       “hearsay evidence of prior acts of violence” Hallman had allegedly committed

       against children. Appellant’s Br. at 29. First, as the State points out, Hallman

       did not object to the alleged hearsay at sentencing, and he has waived the issue

       for our review. Second, while the trial court addressed certain exhibits

       submitted by the State regarding such evidence during the sentencing hearing,

       the court did not rely on any of that proffered evidence in either its oral or

       written sentencing order. Accordingly, “we conclude that any alleged error in

       admitting such evidence did not affect the sentence imposed.” Prowell v. State,

       687 N.E.2d 563, 565 (Ind. 1997) (citing Indiana Trial Rule 61: “We ‘must

       disregard any error or defect in the proceeding which does not affect the

       substantial rights of the parties.’”).


[28]   Hallman also asserts that the trial court abused its discretion when it identified

       as aggravating Z.H.’s “tender age” because Z.H.’s age was an element of the

       offense. Appellant’s Br. at 31. However, as the State points out, the trial court

       was entitled to consider Z.H.’s “tender age” of six months given that the age

       element of the offense requires only that the victim be younger than fourteen

       years old. As our Supreme Court has observed, “[t]he younger the victim, the

       more culpable the defendant’s conduct.” Hamilton v. State, 955 N.E.2d 723,

       727 (Ind. 2011). We hold that the trial court did not abuse its discretion when it

       sentenced Hallman.

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 15 of 19
                               Issue Five: Inappropriateness of Sentence

[29]   Finally, Hallman asserts that his thirty-nine-year executed sentence is

       inappropriate in light of the nature of the offense and his character. Indiana

       Appellate Rule 7(B) provides that “[t]he 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.” This Court has held that “[t]he advisory

       sentence is the starting point the legislature has selected as an appropriate

       sentence for the crime committed.” Sanders v. State, 71 N.E.3d 839, 844 (Ind.

       Ct. App. 2017). And the Indiana Supreme Court has explained that:


               The principal role of appellate review should be to attempt to
               leaven the outliers . . . but not achieve a perceived “correct”
               result in each case. Cardwell v. State, 895 N.E.2d 1219, 1225 (Ind.
               2008). Defendant has the burden to persuade us that the
               sentence imposed by the trial court is inappropriate. [Anglemyer,
               868 N.E.2d at 494].


       Shoun v. State, 67 N.E.3d 635, 642 (Ind. 2017) (omission in original).


[30]   Indiana’s flexible sentencing scheme allows trial courts to tailor an appropriate

       sentence to the circumstances presented, and the trial court’s judgment “should

       receive considerable deference.” Cardwell, 895 N.E.2d at 1222. Whether we

       regard a sentence as inappropriate at the end of the day turns on “our sense of

       the culpability of the defendant, the severity of the crime, the damage done to

       others, and myriad other facts that come to light in a given case.” Id. at 1224.

       The question is not whether another sentence is more appropriate, but rather

       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 16 of 19
       whether the sentence imposed is inappropriate. King v. State, 894 N.E.2d 265,

       268 (Ind. Ct. App. 2008). Deference to the trial court “prevail[s] unless

       overcome by compelling evidence portraying in a positive light the nature of the

       offense (such as accompanied by restraint, regard, and lack of brutality) and the

       defendant’s character (such as substantial virtuous traits or persistent examples

       of good character).” Stephenson v. State, 29 N.E.3d 111, 122 (Ind. 2015).


[31]   Hallman contends that “there is nothing aggravating about the [nature of] the

       offense. The severity of the crime is built into the sentencing structure.”

       Appellant’s Br. at 32. We cannot agree. Hallman inflicted a blow to the head

       of his six-month-old stepson causing his death, which is particularly heinous

       given the vulnerability of the infant and the fact that Z.H. depended on

       Hallman to care for him. We cannot say that Hallman’s sentence is

       inappropriate in light of the nature of the offense.


[32]   Hallman contends that his sentence is inappropriate in light of his character

       because, while he has a criminal history, “he does not fall into the worst class of

       offenses or offenders.” Id. at 33. As we have observed,


               [a]lthough the maximum possible sentences are generally most
               appropriate for the worst offenders, this rule is not an invitation
               to determine whether a worse offender could be imagined, as it is
               always possible to identify or hypothesize a significantly more
               despicable scenario, regardless of the nature of any particular
               offense and offender.


       Kovats v. State, 982 N.E.2d 409, 416 (Ind. Ct. App. 2013). By stating that

       maximum sentences are ordinarily appropriate for the “worst offenders,” we
       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 17 of 19
       refer generally to the class of offenses and offenders that warrant the maximum

       punishment, which encompasses a considerable variety of offenses and

       offenders. Id. Accordingly, “[w]e concentrate less on comparing the facts of

       this case 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.” Wells v. State,

       904 N.E.2d 265, 274 (Ind. Ct. App. 2009), trans. denied.


[33]   We reject Hallman’s suggestion that his sentence, which is one year less than

       the maximum sentence, is inappropriate because his character compares

       favorably to other, worse offenders. Hallman’s criminal history includes one

       felony conviction for theft and three misdemeanor convictions, including

       battery against Jennings in 2013. Further, while incarcerated awaiting trial in

       this case, Hallman fought with a fellow inmate; he clogged a toilet and flooded

       the jail by placing his jumpsuit and a sheet down the toilet; and he exposed his

       penis to an officer. Hallman has not presented compelling evidence of

       “substantial virtuous traits or persistent examples of good character,” and we

       cannot say that his sentence is inappropriate in light of his character. See

       Stephenson, 29 N.E.3d at 122.


[34]   Hallman also asserts that his sentence is inappropriate in light of his character

       because “the court relied heavily on inadmissible double and triple hearsay”

       evidence regarding “prior crimes which were never charged.” However, again,

       the trial court did not rely on hearsay evidence in imposing sentence. We



       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 18 of 19
       cannot say that Hallman’s sentence is inappropriate in light of the nature of the

       offense and his character.


[35]   Affirmed.


       Bailey, J., and May, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 19A-CR-426 | September 30, 2019   Page 19 of 19
