MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be                                       FILED
regarded as precedent or cited before any                              Jan 29 2020, 8:57 am
court except for the purpose of establishing                                CLERK
the defense of res judicata, collateral                                 Indiana Supreme Court
                                                                           Court of Appeals
estoppel, or the law of the case.                                            and Tax Court




ATTORNEY FOR APPELLANT                                   ATTORNEYS FOR APPELLEE
Lisa M. Johnson                                          Curtis T. Hill, Jr.
Brownsburg, Indiana                                      Attorney General

                                                         Caroline G. Templeton
                                                         Deputy Attorney General
                                                         Indianapolis, Indiana


                                           IN THE
    COURT OF APPEALS OF INDIANA

Evan J. Schaffer,                                        January 29, 2020
Appellant-Defendant,                                     Court of Appeals Case No.
                                                         18A-CR-2960
        v.                                               Appeal from the Lawrence
                                                         Superior Court
State of Indiana,                                        The Honorable John M. Plummer,
Appellee-Plaintiff                                       III, Judge
                                                         Trial Court Cause No.
                                                         47D01-1704-MR-560



Crone, Judge.




Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020                Page 1 of 22
                                             Case Summary
[1]   Following a jury trial, Evan Schaffer was convicted of murder, level 6 felony

      pointing a firearm, class A misdemeanor carrying a handgun without a license,

      and class B misdemeanor battery. The trial court sentenced him to an aggregate

      term of sixty-three and a half years. Schaffer raises numerous issues on appeal

      including: (1) whether the trial court was required to hold a hearing on his

      amended motion for change of venue; (2) whether the trial court abused its

      discretion in denying his motion for change of venue; (3) whether the State

      presented sufficient evidence to rebut his self-defense claim; (4) whether the trial

      court abused its discretion in instructing the jury; (5) whether the trial court

      abused its discretion during sentencing; and, (6) whether his sentence is

      inappropriate in light of the nature of the offenses and his character. We affirm.


                                 Facts and Procedural History
[2]   In April 2017, Schaffer was living with his aunt and uncle, Matt and Elizabeth

      Franklin, in Orleans, Indiana. His cousin, Zachary Franklin, as well as

      Zachary’s friends, Jacey Lewis and Samuel Payton, also lived in the home. On

      April 22, Schaffer, his aunt, his cousin, and the two friends were hanging out

      drinking alcohol and eating dinner when they decided to go fishing at a quarry

      in Bedford. Schaffer was drinking both beer and whiskey. Around 10:30 p.m.,

      they got into his aunt’s black pickup truck and drove to Bedford. They fished

      for a few hours, and Schaffer continued to drink alcohol. While fishing,

      Schaffer became upset while text messaging with his girlfriend which caused

      him to throw his cell phone into the quarry.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 2 of 22
[3]   Around 1:00 a.m. on April 23, the group was done fishing, and they decided to

      go to McDonald’s in Bedford. At the same time, Justin Lampkins, his

      girlfriend, Jennifer Patterson, and his friend, Joshua Grissom, decided to stop at

      the same McDonald’s on their way back from a trip to a casino in French Lick.

      When Lampkins arrived in the drive-through line, there were two vehicles in

      front of his: a red sedan, and the black pickup truck carrying Schaffer and his

      group.


[4]   After Schaffer’s group ordered, his aunt, who was driving, pulled the truck

      forward toward the first window but not far enough so that the red sedan could

      reach the order board. At that point, somebody honked a horn. Schaffer and

      Samuel decided to exit the truck and confront the people in the red sedan. The

      people in the sedan pointed to Lampkins’s vehicle. Schaffer approached

      Lampkins’s truck and punched Lampkins through the open driver’s side

      window. Lampkins told Grissom to call 911. Two McDonald’s employees

      who happened to be outside the store tried to intervene and defuse the situation

      by directing Schaffer back to his truck. Schaffer and Lampkins were yelling at

      each other. The employees “finally got [Schaffer] back to his truck and then he

      came back again and done[sic] the same exact thing,” so the employees tried

      again. Tr. Vol. 7 at 71. One of Schaffer’s friends tried to reason with Schaffer

      and push him back, but Schaffer resisted. Even while back at his truck, Schaffer

      continued to attempt to return to Lampkins’s vehicle. Patterson saw Schaffer

      retrieve a handgun from the truck.




      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 3 of 22
[5]   While Grissom was still on the phone with 911 dispatch reporting the incident,

      Lampkins exited his vehicle, taking with him a small tire-knocker he kept by his

      seat. The tire-knocker had the appearance of a “little tiny club” that was

      approximately a foot long. Id. at 185. As Lampkins exited his vehicle and

      began walking toward Schaffer with the tire-knocker in hand, Grissom saw

      Schaffer draw his gun and point it at Lampkins’s head. Lampkins slapped the

      gun away from his face, put his hand on Schaffer’s neck, and pushed Schaffer

      backward away from the other people in the drive-through line. Although

      Lampkins had the tire-knocker in his hand, he did not swing it or hit Schaffer

      with it. As Lampkins was pushing Schaffer backward, Schaffer raised the gun

      toward Lampkins’s chest and fired. Lampkins immediately dropped to the

      ground.


[6]   After shooting Lampkins, Schaffer walked away, and the other members of his

      group picked him up in the truck and drove off. Once in the truck, Schaffer told

      one of his friends that he had just “ruined [his own] life.” Tr. Vol. 8 at 119.

      Just before the truck was stopped by police, Schaffer threw something out the

      window. Officers found a 9-millimeter Taurus handgun approximately

      eighteen feet from the truck. Forensic examination revealed one of Schaffer’s

      fingerprints on the magazine of the gun.


[7]   Lampkins was transported to the hospital and died around 2:30 a.m. on April

      23, 2017. Lampkins had suffered a gunshot wound to the left upper chest, and

      his cause of death was massive blood loss. A bullet was located in his spine,



      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 4 of 22
      just below the breastbone. Forensic examination confirmed that the bullet was

      fired by the Taurus handgun.


[8]   On April 25, 2017, the State charged Schaffer with murder, level 6 felony

      pointing a firearm, class A misdemeanor carrying a handgun without a license,

      and class A misdemeanor battery. The State subsequently amended the battery

      charge to a class B misdemeanor. On May 25, 2017, Schaffer filed a motion for

      change of venue alleging that he would be unable to receive a fair trial in

      Lawrence County. The trial court held a hearing on the motion on April 18,

      2018. On May 2, 2018, before the trial court issued a ruling on the motion,

      Schaffer moved to withdraw the motion. The trial court issued an order taking

      the motion to withdraw under advisement. Thereafter, on July 27, 2018,

      Schaffer filed an amended motion for change of venue on essentially the same

      grounds, stating that the amendment was simply intended to “supplement[] his

      original Verified Motion for Change of Venue.” Appellant’s App. Vol. 4 at 17.

      Just prior to the start of jury selection, counsel for both parties met in chambers

      with the trial court. The trial court indicated that it intended to defer ruling on

      the amended motion until after voir dire was conducted to see if an impartial

      jury could be selected.


[9]   Voir dire commenced on August 7, 2018, and concluded on August 9, 2018,

      with the selection of a full jury as well as four alternate jurors. Following a

      lengthy trial, the jury found Schaffer guilty as charged. The trial court held a

      sentencing hearing on November 20, 2018, and sentenced Schaffer to an

      aggregate executed sentence of sixty-three and a half years. This appeal ensued.

      Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 5 of 22
                                      Discussion and Decision

        Section 1 – Schaffer has waived any error in the trial court’s
       failure to hold a hearing on his amended motion for change of
                                    venue.
[10]   As noted above, approximately one month after he was charged, Schaffer filed

       a motion for change of venue asserting that he could not receive a fair trial in

       Lawrence County. The trial court held a hearing on the motion in April 2018,

       during which Schaffer presented several local radio and newspaper articles

       regarding the incident which contained, among other things, information about

       Schaffer’s criminal history and also identified Lampkins as a Marine. Schaffer

       argued that this allegedly prejudicial media coverage regarding the incident

       warranted a change of venue. However, a few weeks later, before the court had

       issued a ruling on the motion, Schaffer moved to withdraw the motion. The

       trial court took the motion to withdraw under advisement.


[11]   Approximately two weeks before the start of trial, on July 26, 2018, Schaffer

       filed an amended motion for change of venue. Schaffer stated that the amended

       motion was intended to supplement his original motion. Schaffer did not alter

       the grounds for seeking a change of venue but added a claim that in a recent

       Lawrence County case filed before Schaffer’s, the court was unable to identify

       and select an impartial jury due to pretrial publicity. Schaffer noted that some

       of the prospective jurors in that case during voir dire had referenced their

       knowledge of “the McDonalds case” and “made statements relating to Mr.

       Schaffer’s guilt or innocence.” Appellant’s App. Vol. 4 at 18.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 6 of 22
[12]   During a subsequent in-chambers meeting held one or two days before trial,

       when asked by defense counsel how it intended to rule on the amended motion

       for change of venue, the trial court indicated it would defer ruling on the

       motion until after voir dire in order to see if an impartial jury could be selected.

       Appellant’s Supp. App. Vol. 2 at 5; see Lindsey v. State, 485 N.E.2d 102, 106

       (Ind. 1985) (a trial court has discretion to postpone ruling on motion for change

       of venue pending voir dire). At the conclusion of voir dire, a jury was selected,

       and the case proceeded to trial without objection from defense counsel

       regarding the lack of a second hearing on the amended motion for change of

       venue.


[13]   Indiana Code Section 35-36-6-1(b) provides that when a motion for a change of

       venue from the county is filed alleging that bias or prejudice against the

       defendant exists in that county, the court shall hold a hearing on the motion.

       See also Ind. Criminal Rule 12(A) (providing that a motion for change of venue

       from the county shall set forth facts in support of the basis or bases for the

       change and, after a hearing on the motion, the court’s ruling is reviewed only

       for abuse of discretion). Schaffer acknowledges that the trial court held the

       required hearing on his original motion, but he contends that the trial court

       committed reversible error in failing to conduct a second hearing on his

       amended motion.


[14]   Even assuming that the trial court was required to hold a second hearing

       following Schaffer’s filing of an amended motion, our supreme court has stated

       that a defendant’s failure to object at trial to the lack of hearing on a motion for

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 7 of 22
       change of venue results in waiver of the alleged error on appeal. Davidson v.

       State, 580 N.E.2d 238, 244 (Ind. 1991). The purpose of requiring a party to

       contemporaneously object is to prevent a party from sitting idly by and

       appearing to assent to a ruling by the court only to cry foul when the outcome

       goes against him. Hale v. State, 54 N.E.3d 355, 358-59 (Ind. 2016). Schaffer did

       not object at trial to the lack of hearing on his amended motion. Consequently,

       any error is waived.


          Section 2 – Schaffer cannot demonstrate that the trial court
           abused its discretion in ultimately denying his motion for
                                change of venue.
[15]   Next, Schaffer contends that the trial court abused its discretion in denying his

       motion for change of venue. Specifically, he claims that the entire jury panel

       “was so infected with inflammatory, pre-trial publicity that the denial of his

       request for a change of venue resulted in fundamental, structural error.” Reply

       Br. at 6. “At the heart of the decision on a motion for change of venue is the

       right to an impartial jury.” Lindsey, 485 N.E.2d at 106. “A fair trial in a fair

       tribunal is a basic requirement of due process.” Ward v. State, 810 N.E.2d 1042,

       1048-49 (Ind. 2004) (quoting In re Murchison, 349 U.S. 133, 136 (1955)). A

       juror’s verdict must be impartial “regardless of the heinousness of the crime

       charged, the apparent guilt of the offender or the station in life which he

       occupies.” Id. (quoting Morgan v. Illinois, 504 U.S. 719, 727 (1992)). The trial

       court’s decision on a motion for change of venue is reviewable only for an

       abuse of discretion. Davidson, 580 N.E.2d at 244. “The mere possibility of


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 8 of 22
       prejudice is not enough to gain a change of venue; the defendant must show

       that jurors were unable to set aside preconceived notions of guilt and render a

       verdict based on the evidence.” Id.


[16]   Our supreme court has repeatedly held that to prove that an error occurred in

       the denial of a motion for change of venue from the county, the defendant must

       show that he exhausted his peremptory challenges in an effort to secure juror

       impartiality and also that the jury was so prejudiced against him that it was

       unable to render a verdict in accordance with the evidence. Bixler v. State, 471

       N.E.2d 1093, 1100 (Ind. 1984), cert. denied (1985). As noted by the State, a total

       of seventeen peremptory strikes were used between the parties, but it is unclear

       from the record how many strikes were exercised by either party. Schaffer

       concedes that “the record does not show that [he] used all of his peremptory

       challenges” and he makes no assertion that he did, in fact, exhaust his

       peremptory challenges. Reply Br. at 6. It is the appellant’s duty to provide a

       record that reflects the error alleged. Williams v. State, 690 N.E.2d 162, 176 (Ind.

       1997). Because Schaffer is unable to demonstrate that he made the “maximum

       permissible effort to secure juror impartiality,” he cannot demonstrate that the

       trial court’s denial of his motion for change of venue constituted an abuse of

       discretion. Myers v. State, 887 N.E.2d 170, 181 (Ind. Ct. App. 2008) (defendant




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 9 of 22
       could not claim that trial court erred in denying motion for change of venue on

       appeal when he used only eight of his ten peremptory challenges).1


           Section 3 – The State presented sufficient evidence to rebut
                          Schaffer’s self-defense claim.
[17]   Schaffer asserts that the State presented insufficient evidence to rebut his self-

       defense claim. The standard of review for a challenge to the sufficiency of

       evidence to rebut a claim of self-defense is the same as the standard for any

       sufficiency claim. Wilson v. State, 770 N.E.2d 799, 801 (Ind. 2002). We neither

       reweigh the evidence nor judge the credibility of witnesses. Id. If there is

       sufficient evidence of probative value to support the conclusion of the trier of

       fact, then the verdict will not be disturbed. Id.


[18]   Self-defense is a legal justification for an otherwise criminal act. Bryant v. State,

       984 N.E.2d 240, 250 (Ind. Ct. App. 2013), trans. denied. Indiana Code Section

       35-41-3-2(c) provides that “[a] person is justified in using reasonable force

       against any other person to protect the person … from what the person

       reasonably believes to be the imminent use of unlawful force.” To prevail on

       his self-defense claim, Schaffer was required to show that he: “(1) was in a place

       where he had a right to be; (2) acted without fault; and (3) was in reasonable



       1
         While Schaffer argues that all seated jurors “had some prior knowledge about the case” due to pretrial
       publicity, Appellant’s Br. at 44, it is well established that jurors “need not be totally ignorant of the facts or
       issues involved in the case.” Whiting v. State, 969 N.E.2d 24, 28 (Ind. 2012) (citation omitted). Rather, “a
       constitutionally impartial juror is one who is able to lay aside his or her prior knowledge and opinions, follow
       the law as instructed by the trial judge, and render a verdict based solely on the evidence presented in court.”
       Id. Schaffer points to no evidence disclosed during voir dire that any of the seated jurors were unable to meet
       these standards.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020                    Page 10 of 22
       fear o[r] apprehension of bodily harm.” Richardson v. State, 79 N.E.3d 958, 964

       (Ind. Ct. App. 2017), trans. denied. A person who provokes, instigates, or

       participates willingly in the violence does not act without fault for the purposes

       of self-defense. Shoultz v. State, 995 N.E.2d 647, 660 (Ind. Ct. App. 2013), trans.

       denied. Indeed, a person is not justified in using force if, among other things,

       “the person has entered into combat with another person or is the initial

       aggressor unless the person withdraws from the encounter and communicates

       to the other person the intent to do so and the other person nevertheless

       continues or threatens to continue unlawful action.” Ind. Code § 35-41-3-

       2(g)(3).


[19]   When a claim of self-defense finds support in the evidence, the State bears the

       burden of negating at least one of the necessary elements. Id. The State may

       meet its burden by rebutting the defense directly, by affirmatively showing the

       defendant did not act in self-defense, or by relying on the sufficiency of the case-

       in chief. Quinn v. State, 126 N.E.3d 924, 927 (Ind. Ct. App. 2019). Whether the

       State has met its burden is a question for the trier of fact. Kimbrough v. State, 911

       N.E.2d 621, 635 (Ind. Ct. App. 2009). If a defendant is convicted despite his

       claim of self-defense, we will reverse only if no reasonable person could say that

       self-defense was negated beyond a reasonable doubt. Hollowell v. State, 707

       N.E.2d 1014, 1021 (Ind. Ct. App. 1999).


[20]   Here, the State presented sufficient evidence to rebut Schaffer’s claim of self-

       defense. The evidence demonstrated that Schaffer was the initial aggressor and

       instigated a physical altercation with Lampkins when he approached

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 11 of 22
Lampkins’s vehicle and punched him through the window. He then provoked

further confrontation and participated willingly in the violence by then

returning to his aunt’s vehicle, arming himself, and reapproaching Lampkins.

Schaffer argues that Lampkins became the aggressor because he “went after

[Schaffer] with the tire knocker” after Schaffer had already communicated an

intent to withdraw by “walk[ing] back to Elizabeth’s truck.” Appellant’s Br. at

54. Despite Schaffer’s claims on appeal, there was little to no evidence

indicating that Schaffer ever withdrew from the encounter or communicated to

Lampkins the intent to do so. Rather, the evidence clearly shows Schaffer’s

instigation and provocation of and willing participation in combat. 2 Schaffer’s

argument on appeal is simply an invitation for us to reweigh the evidence,

which we may not do. In light of the evidence favorable to the convictions, a

“reasonable person could say that self-defense was negated beyond a reasonable

doubt.” Richardson, 79 N.E.3d 964. Accordingly, we will not reverse Schaffer’s

convictions on this basis.




2
  The jury was presented with both witness testimony and a surveillance video recording of the event.
Contrary to Schaffer’s claims, the video evidence does not indisputably contradict the relevant witness
testimony. Accordingly, we defer to the trier of fact’s determinations regarding the weight of the evidence
and the credibility of the witnesses. Quinn v. State, 126 N.E.3d 924, 928 (Ind. Ct. App. 2019) (citing Love v.
State, 73 N.E.3d 693, 699 (Ind. 2017)).

Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020                   Page 12 of 22
            Section 4 – The trial court did not abuse its discretion in
            refusing to give Schaffer’s proffered jury instructions on
                               reckless homicide.
[21]   We next address Schaffer’s assertion that the trial court abused its discretion in

       refusing to give his proffered jury instructions on reckless homicide as a lesser

       included offense of murder. The State objected to Schaffer’s proffered

       instructions, asserting that there was no serious evidentiary dispute regarding

       whether Schaffer acted knowingly or intentionally when he killed Lampkins by

       shooting him in the chest at close range. Our supreme court has explained,


               To determine whether to instruct a jury on a lesser included
               offense, the trial court must engage in a three-part analysis. The
               first two parts require the trial court to consider whether the
               lesser included offense is inherently or factually included in the
               greater offense. If it is, then the trial court must determine if there
               is a serious evidentiary dispute regarding the element that
               distinguishes the lesser offense from the principal charge. Here,
               the distinguishing element between knowing murder and reckless
               homicide is culpability. Compare Ind. Code § 35-41-2-2(b) (“A
               person engages in conduct ‘knowingly’ if, when he engages in the
               conduct, he is aware of a high probability that he is doing so.”)
               with Ind. Code § 35-41-2-2(c) (“A person engages in conduct
               ‘recklessly’ if he engages in the conduct in plain, conscious, and
               unjustifiable disregard of harm that might result and the
               disregard involves a substantial deviation from acceptable
               standards of conduct.”).


               When considering whether there is a serious evidentiary dispute,
               the trial court examines the evidence presented by both parties
               regarding the element(s) distinguishing the greater offense from
               the lesser one. This involves evaluating the weight and credibility
               of [the] evidence, and then determining the seriousness of any

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 13 of 22
               resulting dispute. Because the trial court found no serious
               evidentiary dispute existed, we will reverse only if that finding
               was an abuse of discretion. In our review, we accord the trial
               court considerable deference, view the evidence in a light most
               favorable to the decision, and determine whether the trial court’s
               decision can be justified in light of the evidence and
               circumstances of the case.


       Leonard v. State, 80 N.E.3d 878, 885 (Ind. 2017) (some citations and quotation

       marks omitted).


[22]   In other words, the trial court’s refusal to give a reckless homicide instruction

       here would be an abuse of discretion only if there was a serious evidentiary

       dispute about the elements distinguishing murder from reckless homicide and if,

       in view of this dispute, the jury could conclude that Schaffer committed reckless

       homicide instead of murder. Heavrin v. State, 675 N.E.2d 1075, 1078 (Ind.

       1996). Thus, the question is whether there was a serious evidentiary dispute as

       to whether Schaffer shot and killed Lampkins recklessly but not knowingly. An

       instruction on reckless homicide was not warranted if there was no serious

       evidentiary dispute that Schaffer shot Lampkins with an awareness of a high

       probability that he was engaged in killing. Ingram v. State, 547 N.E.2d 823, 830-

       831 (Ind. 1989).


[23]   Schaffer asserts that there was a serious evidentiary dispute regarding his

       culpability because the “shooting occurred during an extremely tense and

       volatile situation” and there was “no evidence that Schaffer aimed at

       Lampkins’s chest.” Appellant’s Br. at 70. He does not dispute, however, that


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 14 of 22
       he fired the shot into Lampkins’s chest at close range. Although he now points

       to his self-serving testimony denying that he knowingly aimed the gun at

       Lampkins’s chest as creating an evidentiary dispute, he did not make this

       argument to the trial court or point to this evidence when proffering his

       instructions. Accordingly, this argument is waived. See Leatherman v. State, 101

       N.E.3d 879, 885 (Ind. Ct. App. 2018) (noting well-established rule that trial

       court cannot be found to have erred as to an argument it never had opportunity

       to consider). Moreover, the jury heard evidence that Schaffer knowingly aimed

       at and shot Lampkins in the chest, as Schaffer bragged to a jail cellmate, “[I]f I

       wanted to help [Lampkins], I could have shot him in the leg or his stomach.”

       Tr. Vol. 9 at 223-24.


[24]   The evidence presented here gave the trial court sufficient justification to

       conclude that there was no serious evidentiary dispute that Schaffer was acting

       with an awareness of a high probability that he was engaged in killing. The

       evidence need not be “entirely free from doubt,” and viewing it in the light most

       favorable to the trial court’s decision here, we agree with the State that the

       record supports the trial court’s refusal to give Schaffer’s proffered instructions

       on reckless homicide. Heavrin, 675 N.E.2d at 1078. As stated above, we give

       the trial court’s decision “considerable deference” because the court has the best

       view of the evidence. Fish v. State, 710 N.E.2d 183, 185 (Ind. 1999). We find

       no abuse of discretion.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 15 of 22
        Section 5 – The trial court did not abuse its discretion during
                                 sentencing.
[25]   We next address Schaffer’s assertion that the trial court abused its discretion

       during sentencing. Specifically, he argues that the trial court failed to identify

       or find mitigating factors that were clearly supported by the record and

       advanced for consideration. We disagree.


[26]   Sentencing decisions are left to the sound discretion of the trial court. Smallwood

       v. State, 773 N.E.2d 259, 263 (Ind. 2002). We will reverse a sentencing decision

       only if the decision is clearly against the logic and effect of the facts and

       circumstances before the trial court and all reasonable inferences drawn

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

       875 N.E.2d 218. A defendant who alleges that the trial court failed to identify a

       mitigating factor has the burden to establish that the proffered factor is both

       significant and “clearly supported by the record.” Id. at 493. A trial court does

       not err in failing to find mitigation when a mitigation claim is “highly

       disputable in nature, weight, or significance.” Rogers v. State, 878 N.E.2d 269,

       272 (Ind. Ct. App. 2007), trans. denied (2008). “When a defendant offers

       evidence of mitigators, the trial court has the discretion to determine whether

       the factors are mitigating, and it is not required to explain why it does not find

       the proffered factors to be mitigating.” Johnson v. State, 855 N.E.2d 1014, 1016

       (Ind. Ct. App. 2006), trans. denied (2007).


[27]   Schaffer claims that the trial court erred by not finding six potential mitigating

       factors listed in Indiana Code Section 35-38-1-7.1(b): (1) the crime was the
       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 16 of 22
       result of circumstances unlikely to recur (2) the victim of the crime induced or

       facilitated the offense; (3) there were substantial grounds tending to excuse or

       justify the crime, though failing to establish a defense; (4) Schaffer is likely to

       respond positively to a shorter sentence; (5) Schaffer’s character and attitudes

       indicate that he is unlikely to commit another crime; and (6) Schaffer’s

       imprisonment will result in undue hardship to his family. Schaffer advanced

       each of these mitigators either during the sentencing hearing or in his

       sentencing memorandum filed with the trial court.


[28]   As for the first three advanced mitigators, we agree with the State that they

       appear to be an attempt by Schaffer to excuse his behavior by shifting blame to

       his victim. The trial court did not take kindly to those attempts, emphasizing

       the instigative role Schaffer played in the conflict with Lampkins, and noting

       that the evidence clearly established that Schaffer “started the fight, and

       [Schaffer] finished the fight.” Tr. Vol. 11 at 49. The court further repeatedly

       observed that the jury explicitly rejected Schaffer’s self-defense claim.

       Accordingly, we cannot say that those mitigators are clearly supported by the

       record.


[29]   As for Schaffer’s claims that the trial court should have found as mitigating that

       he is likely to respond positively to a shorter sentence and that his character

       indicates that he is unlikely to commit another crime, the trial court made

       numerous observations rejecting those notions. Indeed, the trial court

       specifically noted that, at the time of the current offenses, Schaffer was out on

       pretrial release for a serious level 4 felony arson charge. Even so, he was not

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 17 of 22
       deterred from engaging in criminal behavior and possessing a firearm without a

       license and using that firearm during his conflict with Lampkins. We agree

       with the trial court that this demonstrated Schaffer’s poor character and his

       disregard for the rule of law. The trial court was within its discretion to decline

       to assign any mitigating weight to those advanced factors.


[30]   Regarding undue hardship to his family caused by his imprisonment, Schaffer

       argued that his parents will probably not live long enough to see him complete

       his sentence and further that his daughter was born while he was in jail

       awaiting disposition in the current case. Schaffer presented no evidence to

       demonstrate that any hardship suffered would be “undue” in the sense that it

       would be any worse than that normally suffered by a family whose relative is

       incarcerated. See Nicholson v. State, 768 N.E.2d 443, 448 n.13 (Ind. 2002). We

       further reject any suggestion by Schaffer that simply because the trial court did

       not explain why it did not find that factor mitigating, that the court ignored that

       proposed mitigator. At the outset of its oral sentencing statement, the trial

       court stated that it “has considered the evidence presented by both the State and

       the Defense. The Court has read the victim impact statements. The Court has

       considered the pre-sentence investigation report, as well as the sentencing

       memorandum filed by the Defense earlier today.” Tr. Vol. 11 at 46.

       Accordingly, it is clear from our review that the trial court considered all of

       Schaffer’s proposed factors but declined to find any of them mitigating. As we

       noted above, the trial court has the discretion to determine whether the factors

       are mitigating, and it is not required to explain why it does not find the


       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 18 of 22
       proffered factors to be mitigating. Johnson, 855 N.E.2d at 1016. Schaffer has

       failed to show that the trial court abused its discretion during sentencing.


          Section 6 – Schaffer has not met his burden to demonstrate
                       that his sentence is inappropriate.
[31]   Schaffer finally requests that we reduce the aggregate sentence imposed by the

       trial court pursuant to Indiana Appellate Rule 7(B), which provides that we

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

       trial court’s decision, we find that the sentence “is inappropriate in light of the

       nature of the offense and the character of the offender.” The defendant bears the

       burden to persuade this Court that his or her sentence is inappropriate. Childress

       v. State, 848 N.E.2d 1073, 1080 (Ind. 2006). 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 v. State, 895 N.E.2d 1219, 1222 (Ind. 2008). 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 facts that come to light in a given

       case.” Id. at 1224. “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 v. State, 876 N.E.2d 340, 344 (Ind.

       Ct. App. 2007).



       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 19 of 22
[32]   Regarding the nature of the offense, the advisory sentence is the starting point

       that the legislature has selected as an appropriate sentence for the crime

       committed. Fuller v. State, 9 N.E.3d 653, 657 (Ind. 2014). The sentencing range

       for murder is between forty-five and sixty-five years, with an advisory sentence

       of fifty-five years. Ind. Code § 35-50-2-3. The sentencing range for a level six

       felony is between six months and two and a half years, with an advisory

       sentence of one year. Ind. Code § 35-50-2-7. A person who commits a class A

       misdemeanor shall be imprisoned for a fixed term of not more than one year.

       Ind. Code § 35-50-3-2. A person who commits a class B misdemeanor shall be

       imprisoned for a fixed term of not more than 180 days. Ind. Code § 35-50-3-3.

       The trial court imposed an aggregate sixty-three-and-a-half-year sentence which

       exceeds the advisory sentences for the crimes charged but is below the

       maximum allowable sentence.


[33]   When reviewing the nature of the offense, this Court considers “the details and

       circumstances of the commission of the offense.” Washington v. State, 940

       N.E.2d 1220, 1222 (Ind. Ct. App. 2011), trans. denied. The details and

       circumstances of Schaffer’s offenses illuminate the senselessness of Lampkins’s

       death. Schaffer started a tragic chain of events by overreacting to a minor

       provocation (honking horn) in a fast food drive-through line. He instigated a

       physical confrontation with Lampkins, and although he could have walked

       away and stayed away after punching Lampkins, he instead continued

       returning and trying to fight. He then made the decision to escalate the

       violence by arming himself with a handgun, one that he had no license to carry,

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 20 of 22
       threaten Lampkins with it, and then aim and fire it at close range into

       Lampkins’s chest. As noted earlier, “[Schaffer] started the fight, and [Schaffer]

       finished the fight.” Tr. Vol. 11 at 49. The nature of the offenses does not

       persuade us that a sentence reduction is warranted.


[34]   Schaffer fares no better when we consider his character. The character of the

       offender is found in what we learn of the offender’s life and conduct. Croy v.

       State, 953 N.E.2d 660, 664 (Ind. Ct. App. 2011). Included in that assessment is

       a review of an offender’s criminal history. Garcia v. State, 47 N.E.3d 1249, 1251

       (Ind. Ct. App. 2015), trans. denied (2016). Here, although not extensive,

       Schaffer does have a troubling criminal history. He has a minimal criminal

       history in Minnesota that involved reckless driving, and less than two months

       before his current offenses, Schaffer was charged in Indiana with level 4 felony

       arson. As observed by the trial court, while Schaffer was out “on pretrial

       release on [this] serious felony arson charge … he chose to illegally possess a

       firearm, and consume large amounts of whiskey,” which obviously “put people

       at risk” and contributed to his decision to disregard “the sanctity of human life”

       and murder Lampkins. Tr. Vol. 11 at 48. We agree with the trial court that

       Schaffer’s behavior demonstrated a clear “disdain for the law” even after he had

       already been subjected to the “police authority of the State.” Id. at 48-49.

       Again, we are not persuaded that a sentence reduction is warranted.


[35]   Schaffer has not met his burden to demonstrate that his aggregate sentence is

       inappropriate in light of the nature of the offenses or his character. We therefore

       affirm the convictions and sentences imposed by the trial court.

       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 21 of 22
[36]   Affirmed.


       May, J., and Pyle, J., concur.




       Court of Appeals of Indiana | Memorandum Decision 18A-CR-2960 | January 29, 2020   Page 22 of 22
