MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),                                              FILED
this Memorandum Decision shall not be                                           Apr 04 2019, 6:54 am
regarded as precedent or cited before any
                                                                                    CLERK
court except for the purpose of establishing                                    Indiana Supreme Court
                                                                                   Court of Appeals
the defense of res judicata, collateral                                              and Tax Court

estoppel, or the law of the case.


ATTORNEY FOR APPELLANT                                    ATTORNEYS FOR APPELLEE
Sean C. Mullins                                           Curtis T. Hill, Jr.
Appellate Public Defender                                 Attorney General of Indiana
Crown Point, Indiana
                                                          Matthew B. MacKenzie
                                                          Deputy Attorney General
                                                          Indianapolis, Indiana



                                           IN THE
    COURT OF APPEALS OF INDIANA

Eric Lee Yost,                                            April 4, 2019
Appellant-Defendant,                                      Court of Appeals Case No.
                                                          18A-CR-2151
        v.                                                Appeal from the Lake Superior
                                                          Court
State of Indiana,                                         The Honorable Diane Ross Boswell,
Appellee-Plaintiff.                                       Judge
                                                          Trial Court Cause No.
                                                          45G03-1408-FB-54



Bailey, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019                   Page 1 of 17
                                            Case Summary
[1]   Eric Raymond Yost (“Yost”) challenges his conviction of aggravated battery, a

      Class B felony,1 and his sentence.


[2]   We affirm.



                                                    Issues
[3]   Yost raises five issues which we consolidate and restate as:


                I.       Whether the State provided sufficient evidence to support
                         his conviction of aggravated battery.


                II.      Whether the trial court abused its discretion when it
                         denied Yost’s request to give a “reasonable theory of
                         innocence” jury instruction.


                III.     Whether the trial court abused its discretion in sentencing.


                IV.      Whether Yost’s sentence is inappropriate in light of the
                         nature of the offense and his character.


                               Facts and Procedural History
[4]   On the evening of December 12, 2013, Yost and Jacob Oxley (“Oxley”) both

      attended a Local 150 Union meeting at a union hall in Merrillville. During the




      1
          Ind. Code § 35-42-2-1.5 (2014).


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 2 of 17
      approximately two-hour meeting, some attendees went to the front of the

      building to socialize and drink alcohol. After the meeting, many attendees—

      including Yost and Oxley—stayed at the union hall to meet local business

      representatives, socialize, and drink beer and moonshine. Yost did not know

      Oxley but, when Yost observed Oxley drinking from a mason jar after the

      meeting, Yost asked Oxley what was in the mason jar. Oxley handed Yost the

      mason jar and, while Yost was smelling the contents of the container, Oxley

      “popped” the container “into [Yost’s] face,” causing the contents to spill

      slightly. Tr. Vol. VI at 41-42; 169-70. Oxley and Yost exchanged angry words

      and then separated.


[5]   Oxley and some of his coworkers then left the main hall of the building to meet

      with a local business representative, Michael Simms (“Simms”), in another part

      of the building. Oxley left the meeting with Simms before it was over and

      waited for his friends in the foyer of the building. While Oxley waited, Yost

      entered the foyer and began arguing with Oxley. Yost then used his right hand

      to strike Oxley in the face, and Oxley’s head went backwards toward the brick

      wall behind him. Yost punched Oxley again, this time with his left fist, and

      Oxley fell down and “out the [front] door.” Tr. Vol. 6 at 184. Yost went

      outside and kicked Oxley in the leg before retreating back inside the foyer.

      Oxley returned to the foyer and attempted to kick Yost. Oxley lunged toward

      Yost, and Yost threw Oxley to the ground and kicked him. David Naillieux

      (“Naillieux”), a friend of Yost’s who had witnessed the altercation, came into

      the foyer, got between the two men, and told Yost, “that’s enough” and “let’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 3 of 17
      leave.” Tr. Vol. 6 at 53. Yost, Naillieux, and two of Yost’s other friends then

      left the building together.


[6]   After the altercation with Yost, Oxley’s friends Jason Gumulauski

      (“Gumulauski”), Scott Tully (“Tully”), and Simms joined him in the main hall

      of the building. Gumulauski noticed a red, swollen “knot” about the “[s]ize of

      a half dollar” on Oxley’s forehead. Tr. Vol. III at 188. Simms noticed a large

      “abrasion on [Oxley’s] forehead” that looked like “a rug burn.” Id. at 235.

      Tully noticed Oxley’s “face seemed swollen” and it “seemed like [Oxley] had

      abrasions” as well. Tr. Vol. IV at 35.


[7]   Gumulauski drove Oxley back to his vehicle at a nearby restaurant. Oxley then

      drove himself home. Once home, Oxley informed his fiancé, Jessica Renfrow

      (“Renfrow”), that he had been in a fight at the union hall and had been “kicked

      in the head.” Tr. Vol. II at 133-34. Renfrow saw that Oxley had a mark on his

      cheek, a “thumb-sized” abrasion on his forehead, and a knot “not quite golf ball

      size[d],” on the bottom back of his head. Id. at 111, 138-39. Oxley made

      himself something to eat and then went to bed.


[8]   The next morning, December 13, at 4:30, Oxley awoke, took two Tylenol pills

      for a headache, and drove to the steel company where he worked. That

      morning during work two of Oxley’s co-workers attempted to call him over the

      radio several times, but Oxley did not respond. When his co-workers

      approached the loader which Oxley was supposed to be operating, they

      observed that he was slumped over in his chair and unresponsive. Oxley’s


      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 4 of 17
       coworkers called for medical assistance, and paramedics responded and

       transported Oxley to the hospital where he was pronounced dead. On the

       following day, Dr. Young M. Kim (“Dr. Kim”) performed an autopsy on Oxley

       and prepared an autopsy report.


[9]    On August 8, 2014, the State charged Yost with aggravated battery, a Class B

       felony, battery resulting in serious bodily injury, as a Class C felony,2 and

       involuntary manslaughter, as a Class C felony.3 Yost testified at his jury trial,

       which began on June 25, 2018. Yost admitted that he confronted Oxley in the

       foyer of the union building, argued with Oxley, and punched and kicked Oxley.


[10]   Surveillance footage taken at the union hall on December 12, 2013, was

       admitted into evidence as State’s Exhibits 45 and 46. The surveillance footage

       was played for the jury twice during the trial and once again during the jury’s

       deliberation. Both Yost and Naillieux testified that they had viewed the

       surveillance footage in Exhibits 45 and 46 and that the footage accurately

       reflected the altercation between Yost and Oxley.


[11]   Dr. John Feczko (“Dr. Feczko”), a forensic pathologist, testified as a medical

       expert for the State. Dr. Feczko testified that he had reviewed the autopsy

       report completed by Dr. Kim, and he had also reviewed the photographs and

       surveillance video taken at the union building on the evening of December 12,




       2
           I.C. § 35-42-2-1(a)(3) (2014).
       3
           I.C. § 35-42-1-4(c)(1) (2014).


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 5 of 17
       2013. The autopsy report noted that Oxley had a number of injuries, including

       “fresh” lacerations and abrasions on his face, right anterior shoulder, one knee,

       and one thumb; a contusion hemorrhage surrounding a kidney; a large scalp

       hemorrhage on the top part of his head; and injuries to his brain. Tr. Vol. V at

       91.


[12]   Dr. Feczko agreed with Dr. Kim’s conclusion that the cause of death was

       “blunt force trauma due to the head injury with a large scalp hemorrhage.” Id.

       at 104. Dr. Feczko would have added that the cause of death was from the

       cerebral hemorrhage and herniation that resulted from the head injury. He

       testified that the cerebral hemorrhage caused Oxley’s brain to swell, resulting in

       heart arrhythmia (abnormalities in the heartbeat) and pulmonary edema

       (swelling of the lungs), both of which resulted in the cessation of breathing and

       death. Dr. Feczko concluded that the cause of death was “one hundred percent

       blunt force trauma, cerebral swelling, [and] herniation,” and he explained that

       the slow nature of the swelling of brain cells can lead to death up to a day after

       the injury, during which time the injured party would still be able to walk and

       talk and engage in activities. Id. at 107-09. Dr. Feczko testified that the

       surveillance video supported the cause of death, but that he would have come

       to the same conclusion without the video. He stated that medical records

       concerning Oxley’s pre-existing seizure disorder “100 percent” did not change

       his opinion on the cause of death. Id. at 106-08. Dr. Feczko testified that

       Oxley did not die from Sudden Unexplained Death in Epilepsy (“SUDEP”)




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 6 of 17
       because the hemorrhaging, brain swelling, herniation, and diffuse axonal

       injuries that were present in Oxley are not seen with seizures.


[13]   Dr. Wayel Kaakaji (“Dr. Kaakaji”), a neurological surgeon, testified as a

       medical expert for Yost. Dr. Kaakaji reviewed the autopsy report and Oxley’s

       past medical records. Dr. Kaakaji testified that Oxley died from “[b]rain

       herniation, brain edema [swelling], [and] dysfunction of the lungs.” Tr. Vol. VI

       at 122. He noted that Oxley had been diagnosed with a seizure disorder and

       had been treated for seizures in 2005, 2008, 2009, and 2011. Dr. Kaakaji

       opined that the swelling in Oxley’s brain could have been caused by SUDEP,

       although he stated it was “possible” that it was caused by “blunt force trauma.”

       Id. Dr. Kaakaji also testified that it would be “very unlikely” that Oxley would

       have been able to function normally for ten hours if the hemorrhage and brain

       injury had been caused by someone hitting him in the head. Id. at 123-24.


[14]   Prior to closing argument, Yost requested a jury instruction stating: “In

       determining whether the guilt of the accused is proven beyond a reasonable

       doubt, you should require that the proof be so conclusive and sure as to exclude

       every reasonable theory of innocence.” App. Vol. II at 196. The trial court

       denied that request on the grounds that such an instruction is only required

       when the judge determines that all the evidence of the actus reus element of the

       crime is circumstantial, and that was not true in this case.


[15]   The jury found Yost guilty of aggravated battery and battery resulting in serious

       bodily injury but not guilty of involuntary manslaughter. At the August 8,


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 7 of 17
2018, sentencing hearing, the trial court vacated Count II, battery causing

serious bodily injury. In sentencing Yost on Count I, aggravated battery, the

court noted the following mitigating factors: a minimal criminal history; a

long-established work history; a stable family life; support from family and

friends; his successful raising of his children; an active religious life; no drug or

alcohol problem; the crime is unlikely to recur; Yost is likely to respond

affirmatively to probation; and Yost sincerely expressed “profound” remorse.

Tr. Vol. VIII at 93; Appealed Order at 1-2. The court also noted that Yost was

not a threat to the community; Yost was “an asset to the community and to his

family,” Tr. Vol. VIII at 94; and long-term incarceration “would not serve any

purpose,” id. The court found as an aggravator that “[t]here may be some

anger issues with [Yost].” Appealed Order at 2. The court found “that the

mitigators outweigh any aggravators” and sentenced Yost to the ten-year

advisory sentence, with six years to be served in the DOC and the other four

suspended and served in community corrections. Id.; Tr. Vol. VIII at 94-95.

The court stated that it gave the advisory4 sentence, despite the mitigating

circumstances, because the crime resulted in a death. Tr. Vol. VIII at 99. This

appeal ensued.




4
    The trial court erroneously referred to the advisory sentence as the “presumptive” sentence. Id.


Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019                          Page 8 of 17
                                  Discussion and Decision
                                  Sufficiency of the Evidence
[16]   Yost challenges the sufficiency of the evidence to support his conviction. Our

       standard of review of the sufficiency of the evidence is well-settled:


               When reviewing the sufficiency of the evidence needed to
               support a criminal conviction, we neither reweigh evidence nor
               judge witness credibility. Bailey v. State, 907 N.E.2d 1003, 1005
               (Ind. 2009). “We consider only the evidence supporting the
               judgment and any reasonable inferences that can be drawn from
               such evidence.” Id. We will affirm if there is substantial
               evidence of probative value such that a reasonable trier of fact
               could have concluded the defendant was guilty beyond a
               reasonable doubt. Id.


       Clemons v. State, 996 N.E.2d 1282, 1285 (Ind. Ct. App. 2013), trans. denied.


[17]   To support Yost’s conviction of aggravated battery, the State was required to

       prove that Yost (1) knowingly or intentionally (2) inflicted injury on Oxley (3)

       that created a substantial risk of death. I.C. § 35-42-2-1.5. Yost admits that he

       knowingly or intentionally inflicted injury on Oxley, but he maintains that he

       did not intend to inflict injury that created a substantial risk of death. However,

       “the severity of the injury is not an element of the prohibited conduct, but a

       result of it.” Lowden v. State, 51 N.E.3d 1220, 1223 (Ind. Ct. App. 2016), trans.

       denied. Therefore, the only intent the State was required to prove was that Yost

       knowingly or intentionally inflicted injury upon Oxley; it was not required to

       prove that Yost knew he would cause serious bodily injury. Id.


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 9 of 17
[18]   The only question, then, is whether there is sufficient evidence that the injury

       Yost inflicted caused serious bodily injury, i.e., “‘a protracted loss or

       impairment of the function of a bodily member or organ.’” Id. (quoting Mann v.

       State, 895 N.E.2d 119, 124 (Ind. Ct. App. 2008). The State presented sufficient

       evidence that the punches and/or kicks Yost inflicted on Oxley caused the

       cerebral hemorrhage that resulted in brain swelling and Oxley’s death. Both the

       autopsy completed by Dr. Kim and the testimony of Dr. Feczko provide

       sufficient support for that conclusion. Yost’s contentions to the contrary are

       merely requests that we reweigh the evidence and judge witness credibility,

       which we cannot do. Clemons, 996 N.E.2d at 1285.


[19]   Yost contends that, because the jury found him not guilty of involuntary

       manslaughter, that means “the jury determined that Yost’s battery did not result

       in the brain swelling that produced Oxley’s unfortunate death.” Appellant’s Br.

       at 19. Essentially, Yost argues that his battery conviction cannot stand because

       it is inconsistent with the not guilty verdict on involuntary manslaughter.

       However, as our Supreme Court has noted, when a jury returns logically

       inconsistent verdicts, it is


               likely that the jury chose to exercise lenity, refusing to find the
               defendant guilty of one or more additionally charged offenses,
               even if such charges were adequately proven by the evidence.
               Such right of a criminal jury to decline to convict is well
               recognized.


       Beattie v. State, 924 N.E.2d 643, 648 (Ind. 2010) (citations omitted). Thus,

       “[j]ury verdicts in criminal cases are not subject to appellate review on grounds
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 10 of 17
       that they are inconsistent, contradictory, or irreconcilable.” Id.; see also Baber v.

       State, 870 N.E.2d 486, 490 (Ind. Ct. App. 2007) (citation omitted) (“A jury

       verdict may be inconsistent [with other verdicts] or even illogical but

       nevertheless permissible if it is supported by sufficient evidence.”), trans. denied.


[20]   There was sufficient evidence to support Yost’s conviction.5


                                               Jury Instruction
[21]   Yost challenges the trial court’s denial of his request to include the “reasonable

       theory of innocence” language in the jury instructions.


                Because instructing the jury is a matter within the sound
                discretion of the trial court, we will reverse a trial court’s decision
                to tender or reject a jury instruction only if there is an abuse of
                that discretion. Washington v. State, 997 N.E.2d 342, 345 (Ind.
                2013). We determine whether the instruction states the law
                correctly, whether it is supported by record evidence, and
                whether its substance is covered by other instructions. Id. at 345–
                46. “Jury instructions are to be considered as a whole and in
                reference to each other; error in a particular instruction will not
                result in reversal unless the entire jury charge misleads the jury as
                to the law in the case.” Whitney v. State, 750 N.E.2d 342, 344
                (Ind. 2001) (quoting Edgecomb v. State, 673 N.E.2d 1185, 1196
                (Ind. 1996)).


       Pattison v. State, 54 N.E.3d 361, 365 (Ind. 2016).




       5
         Because the trial court vacated Yost’s Count II conviction of battery resulting in serious bodily injury and
       we find sufficient evidence of the aggravated battery conviction, we do not address the sufficiency of the
       evidence of Count II.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019                     Page 11 of 17
[22]   The “reasonable theory of innocence” instruction must be given to the jury only

       when the evidence of the actus reus is wholly circumstantial. Hawkins v. State,

       100 N.E.3d 313, 316 (Ind. Ct. App. 2018) (citing Hampton v. State, 961 N.E.2d

       480 (Ind. 2012)). The actus reus is the conduct required for the commission of

       the crime. Hampton, 961 N.E.2d at 491; see also Hawkins, 100 N.E.3d at 317 n.3

       (“Actus reus is ‘[t]he wrongful deed that comprises the physical components of a

       crime and that generally must be coupled with mens rea to establish criminal

       liability.’ Black’s Law Dictionary 44 (10th ed. 2014)”). Here, the actus reus was

       the act of Yost hitting and kicking Oxley, and there was direct evidence 6 of

       those actions in the form of Yost’s admissions, the testimony of eyewitnesses,

       and the footage from the surveillance cameras. Thus, Yost is mistaken when he

       claims the actus reus was proven solely with circumstantial evidence. The trial

       court did not abuse its discretion when it denied Yost’s request for the

       reasonable theory of innocence jury instruction.


                               Abuse of Discretion in Sentencing
[23]   Yost maintains that the trial court erred in sentencing him. Sentencing

       decisions lie within the sound discretion of the trial court. Cardwell v. State, 895




       6
           In Hawkins v. State, we explained:

                  [D]irect evidence is “[e]vidence that is based on personal knowledge or observation and that, if true,
                  proves a fact without inference or presumption.” Black’s Law Dictionary 675 (10th ed. 2014).
                  Circumstantial evidence, on the other hand, is “[e]vidence based on inference and not on personal
                  knowledge or observation.”
       100 N.E.3d at 317 (citing Hampton 961 N.E.2d at 674).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019                       Page 12 of 17
       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. 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. 2007), clarified on

       reh’g, 875 N.E.2d 218 (Ind. 2007)).


[24]   So long as a sentence is within the statutory range, the trial court may impose it

       without regard to the existence of aggravating or mitigating factors. Anglemyer,

       868 N.E.2d at 489. However, if the trial court does find the existence of

       aggravating or mitigating factors, it must give a statement of its reasons for

       selecting the sentence it imposes. Id. at 490. But the relative weight or value

       assignable to reasons properly found, or those which should have been found, is

       not subject to review for abuse of discretion. Gross, 22 N.E.3d at 869.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 13 of 17
[25]   Yost contends that the trial court abused its discretion when it imposed the

       advisory sentence7 even though it specifically found that the mitigating

       circumstances outweighed the aggravating circumstances. However, I.C. § 35-

       38-1-7.1(d) allows the imposition of any sentence that does not exceed statutory

       or constitutional limits, “regardless of the presence or absence of aggravating

       circumstances or mitigating circumstances,” and the relative weight the trial

       court gives to those circumstances is not reviewable. Gross, 22 N.E.3d at 869.

       Moreover, the trial court specifically noted that it imposed the advisory

       sentence, despite the mitigating circumstances, because the crime resulted in a

       death. Tr. Vol. VIII at 99. Death of the victim as an aggravator was a

       permissible consideration. See Paul v. State, 888 N.E.2d 818, 823 (Ind. Ct. App.

       2008) (“‘Death’ is not a necessary element of the offense of aggravated battery

       as a class B felony [and] it is a valid aggravating factor.”), trans. denied; see also

       I.C. § 35-38-1-7.1(a)(1) (providing that the fact that the “harm, injury, loss, or

       damage suffered by the victim was significant, and greater than the elements

       necessary to prove the commission of the offense” is a statutory aggravating

       factor).




       7
         We note Yost was given the advisory sentence of ten years, but four of those years were suspended to
       community corrections. Thus, Yost is serving only six years in prison, and we note that six years is the
       minimum sentence for a Class B felony. I.C. § 35-50-2-5 (2014).

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019                   Page 14 of 17
[26]   The trial court did not abuse its discretion when it imposed the advisory

       sentence for aggravated battery, with four years of the sentence suspended to

       community corrections.


                                         Appellate Rule 7(B)
[27]   Even when a trial court has not abused its discretion in sentencing, Article 7,

       Sections 4 and 6, of the Indiana Constitution authorize independent appellate

       review and revision of a trial court’s sentencing order. E.g., Livingston v. State,

       113 N.E.3d 611, 613 (Ind. 2018). This appellate authority is implemented

       through Indiana Appellate Rule 7(B). Id. Revision of a sentence under Rule

       7(B) requires the appellant to demonstrate that his sentence is inappropriate in

       light of the nature of his offenses and his character. See Ind. Appellate Rule

       7(B); Rutherford v. State, 866 N.E.2d 867, 873 (Ind. Ct. App. 2007). We assess

       the trial court’s recognition or non-recognition of aggravators and mitigators as

       an initial guide to determining whether the sentence imposed was

       inappropriate. Gibson v. State, 856 N.E.2d 142, 147 (Ind. Ct. App. 2006).

       However, “a defendant must persuade the appellate court that his or her

       sentence has met th[e] inappropriateness standard of review.” Roush, 875

       N.E.2d at 812 (alteration original). And the defendant “bears a particularly

       heavy burden in persuading us that his sentence is inappropriate when the trial

       court imposes the advisory sentence.” Fernbach v. State, 954 N.E.2d 1080, 1089

       (Ind. Ct. App. 2011), trans. denied.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 15 of 17
[28]   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 1224. The principal

       role of appellate review is to attempt to “leaven the outliers.” Id. at 1225.

       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 factors that come to light in a given

       case.” Id. at 1224. The question is not whether another sentence is more

       appropriate, but rather 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).


[29]   We agree with Yost that there is evidence that his actions in committing the

       offense were no more egregious than necessary to establish the elements of the

       offense; however, we cannot overlook the fact that the resulting harm was a

       death. Cardwell, 895 N.E.2d at 1224. We also agree that there was ample

       evidence of Yost’s good character—specifically, the mitigating circumstances

       the trial court discussed. But Yost was only given the advisory sentence for

       aggravated battery, and the advisory sentence “is the starting point the

       Legislature selected as appropriate for the crime committed.” Fuller v. State, 9


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 16 of 17
       N.E.3d 653, 657 (Ind. 2014). Moreover, “[a]side from revising the length of a

       sentence, the place where a sentence is to be served is also an appropriate focus

       for our review under 7(B).” Livingston, 113 N.E.3d at 613; see also Serban v.

       State, 959 N.E.2d 390, 393 (Ind. Ct. App. 2012) (noting that, in reviewing a

       sentence, we consider the “full sentence, taking into consideration that a

       portion of it was suspended.”). The trial court only sentenced Yost to six years

       in the Department of Correction, with the remaining four years suspended to

       community corrections. We cannot say that the advisory sentence—only a

       portion of which is to be served in prison—is inappropriate. See id.



                                               Conclusion
[30]   The State provided sufficient evidence to support Yost’s conviction of

       aggravated battery. And the trial court did not abuse its discretion when it

       denied Yost’s requested jury instruction regarding a reasonable theory of

       innocence or when it imposed the advisory sentence for aggravated battery.

       Finally, we cannot say that Yost’s sentence is inappropriate.


[31]   Affirmed.


       Riley, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2151 | April 4, 2019   Page 17 of 17
