ATTORNEY FOR APPELLANT: ATTORNEYS FOR APPELLEE:
WILLIAM E. DAILY KAREN M. FREEMAN-WILSON
Danville, Indiana Attorney General of Indiana
CHRISTOPHER L. LAFUSE
Deputy Attorney General
COURT OF APPEALS OF INDIANA
HOWARD O. HOLLEN, )
vs. ) No. 13A01-0001-CR-6
STATE OF INDIANA, )
APPEAL FROM THE CRAWFORD CIRCUIT COURT
The Honorable K. Lynn Lopp, Judge
Cause No. 13C01-9809-DF-51
December 15, 2000
OPINION FOR PUBLICATION
Howard O. Hollen (Hollen) appeals his convictions of Battery of a Law Enforcement
Officer, a class D felony, and Operating a Vehicle While Intoxicated, a class
Hollen raises three issues, restated as:
Whether the trial court should have granted Hollens motion for mistrial after the
arresting officer testified, in violation of the courts pre-trial order in limine, that
he had been dispatched to Hollens residence to investigate a complaint that Hollen
had been threatening his neighbors;
Whether the trial court improperly admitted the arresting officers Affidavit for Probable Cause,
which contained the officers handwritten notes indicating that Hollen engaged in another fight
with the officer after Hollens arrest; and
Whether the trial court failed to properly consider and balance aggravating and mitigating
factors when sentencing Hollen.
Facts and Procedural History
On August 29, 1998, Hollen drove to the Crawford County home of his
neighbor, Joyce Jellison (Jellison) to use Jellisons telephone. Hollen parked his truck
in the middle of the road adjacent to Jellisons home. As Hollen
exited the vehicle, Jellison noticed that Hollen had a gun in his left
pocket, and that a gun fell from the truck seat.
that Hollen smelled of alcohol and slurred his words. Hollen called the
phone company on Jellisons telephone and cursed and threatened to kill the phone
He then advised Jellison that he was going to kill
everyone on the right-hand side of the street, because they was all out
to get him. (R. 543.) Jellison called the Crawford County Sheriffs
Department to report Hollens threats. Hollen got back in his truck, spun
his wheels in the gravel roadway, and drove toward his house.
Deputy Herman Polen (Deputy Polen) was dispatched to Hollens home, also in Crawford
County. After Deputy Polen arrived, he observed Hollen driving toward the residence
very slowly and on the wrong side of the road. Hollen stopped
his vehicle and got out, and began cursing and shouting at the deputy.
Deputy Polen smelled alcohol on Hollens breath, and asked Hollen to accompany
him to the Sheriffs department for a breathalyzer test. As Deputy Polen
was reaching for Hollens arm to escort him to the nearby police car,
Hollen struck Deputy Polen in the jaw. He then violently grabbed the deputys
testicles, refusing to let go until Deputy Polen struck Hollen several times and
After subduing Hollen, Deputy Polen took him to the Sheriffs Department, where a
breathalyzer measured Hollens blood alcohol content to be .15%. Deputy Polen then
took Hollen to a hospital outside of Crawford County for treatment of injuries
Hollen sustained in the altercation. While in the hospital, Hollen struck Deputy
Polen four more times before being strapped to a bed.
Hollen was charged with Battery of a Law Enforcement Officer and Operating a
Vehicle While Intoxicated. This case proceeded to jury trial in the Crawford
County Circuit Court on November 1, 1999. The jury convicted Hollen, and
the court entered judgment on those convictions on November 3, 1999. Hollen
was sentenced on December 1, 1999. He now appeals.
After the jury was selected, Hollen made a motion in limine, asking the
court to forbid Deputy Polen from submitting any testimony about somebody, neighbor waving
a gun or something, anything in that nature . . . .
(R. 479.) The judge ruled that the State could not present evidence
regarding the specific reason Deputy Polen was dispatched to Hollens house unless that
information came from a 911 call log, duly established as a business record
by an appropriate witness pursuant to Evidence Rule 803. (R. 484.)
Rather, the court indicated that Deputy Polen was only to say that he
went to Hollens residence in response to a 911 call. (R. 487.)
During trial, the following exchange between the prosecutor and Deputy Polen took place:
[Prosecutor]: Did he, had you said anything to him to ellicit [sic] the cursing
Polen: No, we were just standing there and you know, I wouldnt want to
use the words he was using, just telling me to get off his
property. I had no business being there and I told Mr. Hollen,
yes I have a reason for being there. I said you have
been threatening your neighborhood with a handgun.
(R. 500.) Hollen promptly objected and asked for a mistrial. The
court declined to grant a mistrial, but admonished the jury to disregard Deputy
Polens testimony.B. Standard of Review
The decision to grant or deny a motion for mistrial is entrusted to
the sound discretion of the trial court, because the judge is in the
best position to evaluate the circumstances of an allegedly prejudicial event, and to
assess its impact on the jury. Kavanaugh v. State, 695 N.E.2d 629,
632 (Ind. Ct. App. 1998). When reviewing a trial courts grant or
denial of a mistrial, we look to whether the moving party was placed
in a position of grave peril to which he should not have been
subjected. Id. The gravity of the peril is a function of
the probable persuasive effect of the statement or conduct, and not of the
degree of the conducts impropriety. Id. A mistrial is an extreme
remedy warranted only when no other curative measure, such as an admonishment, will
rectify the situation. See Herrera v. State, 710 N.E.2d 931, 937 (Ind.
Ct. App. 1999). Reversal is seldom required when the trial court has
admonished the jury to disregard some statement or conduct. Kavanaugh, 695 N.E.2d
C. Discussion and Decision
Hollen recognizes that the trial courts ruling on his motion in limine did
not determine the ultimate admissibility of this evidence. See Herrera, 710 N.E.2d
at 936. Rather, a motion in limine is designed to prevent the
disclosure of potentially prejudicial matters to the jury until the trial court has
the opportunity to rule on its admissibility. Id. at 935. If
the trial court errs by admitting evidence that the defendant sought to be
excluded by a motion in limine, the error is in the admission of
evidence, not in the violation of the courts pre-trial order. Id. at
936. Hollen argues that Deputy Polens testimony warranted a mistrial because it
constituted inadmissible evidence of prior misconduct under Evidence Rule 404(b), and inadmissible hearsay.
The State does not address the admissibility of Deputy Polens testimony in
its Brief, and we will assume for purposes of this discussion that the
testimony was not admissible.
Error in the admission of evidence may be harmless when a conviction is
otherwise supported by independent evidence. Mauricio v. State, 652 N.E.2d 869, 872
(Ind. Ct. App. 1995). Here, Hollens convictions for Battery of Deputy Polen,
and for Operating While Intoxicated, were supported by considerable evidence. Indeed, Hollen
does not dispute that the evidence was sufficient to sustain his convictions.
Evidentiary errors may also be harmless when the evidence in question is merely
cumulative of evidence admitted elsewhere. Cohen v. State, 714 N.E.2d 1168, 1175
(Ind. Ct. App. 1999), trans. denied. The substance of Deputy Polens objectionable
testimony regarding Hollens earlier threatening behavior was repeated, without objection, by Jellison, who
testified that Hollen threatened to kill his neighbors.
Hollen nevertheless maintains that Deputy Polens injection of the statement regarding Hollens threats
was not harmless. Hollens defense at trial was that Deputy Polen struck
him first, and that he only struck the deputy to defend himself.See footnote
Hollen claims that Deputy Polens inadmissible testimony was not harmless because it prejudiced
him in the eyes of the jury and undermined his claim of self-defense,
subjecting him to peril remediable only by a mistrial.
After denying Hollens motion for mistrial, however, the trial court admonished the jury
to disregard Deputy Polens remarks. A timely and accurate admonishment is presumed
to cure any error in the admission of evidence.
Heavrin v. State,
675 N.E.2d 1075, 1084 (Ind. 1996). Hollen contends that the courts admonishment
was ineffective because the court did not admonish the jury to disregard Jellisons
subsequent testimony about Hollens threats to kill his neighbors and his possession of
a gun. Hollen, however, neither objected to Jellisons testimony nor asked the
court to admonish the jury to disregard her remarks. Trial counsels failure
to object to testimony generally waives any error regarding its admission, see Davis
v. State, 598 N.E.2d 1041, 1048 (Ind. 1992), and it is too late
now for Hollen to complain about the admission of Jellisons testimony.
Hollens argument regarding the courts failure to admonish the jury after Jellisons testimony
simply does not relate to the effectiveness of the courts admonishment to disregard
Deputy Polens testimony. Rather, Hollens claim that Jellisons testimony somehow diluted the
impact of the courts admonishment mainly serves to bolster the States position that
Deputy Polens violation of the courts pre-trial order in limine was harmless because
the substance of his testimony was repeated without objection by Jellison. Even
if Deputy Polens injection of his inadmissible testimony in violation of the courts
order was not harmless, the trial court properly admonished the jury to disregard
Deputy Polens testimony, and we must presume that the jury complied with the
courts instruction. The court, having admonished the jury, did not abuse its
discretion by declining to declare a mistrial.
II. Admission of Affidavit of Probable Cause
During trial, the State moved to introduce the Affidavit for Probable Cause prepared
by Deputy Polen following Hollens arrest. The Affidavit alleged that Hollen committed
Battery against Deputy Polen in Crawford County, Indiana. [R. 517.] The
Affidavit also contained Deputy Polens handwritten notes, which stated, Also note please, at
Hospital, he fist fighted me again, we had to strap him down to
a bed to protect the staff. He was not harmed[.] (R.
517.) Hollen objected to the admission of the Affidavit on the ground
that evidence regarding Hollens second fight with Deputy Polen was irrelevant to Hollens
Battery charge, and that even if it was relevant, its prejudicial effect outweighed
its probative value. The trial court overruled Hollens objection.
B. Standard of Review
The evidentiary rulings of a trial court are afforded significant deference upon appeal,
and will be reversed only if the court has abused its discretion resulting
in the denial of a fair trial. Herrera, 710 N.E.2d at 935.
Although relevant evidence is generally admissible, it may be excluded if its
probative value is substantially outweighed by the danger of unfair prejudice. Evid.
R. 402, 403; Robinson v. State, 720 N.E.2d 1269, 1271 (Ind. Ct. App.
1999). The trial courts discretion regarding the admission of evidence extends to
the weighing of probative value against possible prejudice, and the courts conclusions in
this regard will be reviewed only for an abuse of discretion. Herrera,
710 N.E.2d at 935.
C. Discussion and Decision
Hollen argues that the trial court abused its discretion by admitting the Affidavit.
Specifically, Hollen claims that Deputy Polens notes were completely irrelevant because his
Battery charge related only to the altercation that occurred at his residence, and
argues that the notes prejudiced him because they referred to inadmissible evidence of
other misconduct. During oral argument, Hollen presented an additional contention that evidence
of the subsequent fight was inadmissible because the hospital where the fight occurred
was located outside of Crawford County.
The State contends that Hollens Battery charge was broad enough to encompass the
second altercation at the hospital. The Information charging Hollen with Battery of
a Law Enforcement Officer states that:
On August 29, 1998, in Crawford County in the State of Indiana .
Howard O. Hollen did knowingly or intentionally touch Deputy Herman E. Polen, a
law enforcement officer, engaged in the execution of his official duties, in a
rude, insolent or angry manner, to-wit: hit him in the face and grabbed
his testicles, resulting in bodily injury, to-wit: a torn scrotum.
(R. 12.) The State is correct that the information in this case
does not specify that Hollens charges were limited to the first altercation at
his residence. However, the information clearly states that Hollens Battery occurred in
Crawford County. During oral argument, the State conceded that the hospital in
which the second altercation between Hollen and Deputy Polen occurred was located outside
of Crawford County.
Criminal actions are generally to be tried in the county where the offense
was committed. Ind. Code § 35-32-2-1(a). The prosecution of a crime
is instituted when the prosecuting attorney files an information or indictment in a
court with jurisdiction over the charged crime. Ind. Code § 35-34-1-1(b).
A charging information must set forth, among other things, the nature and elements
of the offense charged in plain and concise language without unnecessary repetition, Ind.
Code § 35-34-1-2(a)(4), and must state the place of the offense with sufficient
particularity to show that the offense was committed within the jurisdiction of the
court where the charge is to be filed. Ind. Code § 35-34-1-2(a)(7).
In this case, Hollen was specifically charged with battering Deputy Polen in
Crawford County. Evidence of Hollens second altercation with the deputy, which occurred
outside Crawford County, was therefore irrelevant to the issue of Hollens guilt of
the crime with which he was charged, and should not have been admitted.
Nevertheless, we conclude that admission of the Affidavit was harmless. As noted
above, the erroneous admission of evidence is generally harmless if the evidence in
question is merely cumulative of evidence admitted elsewhere. Deputy Polen testified, in
response to questions from Hollens counsel, and without any objection, about Hollens second
attack at the hospital. (R. 533.) Although this testimony was equally
inadmissible, Hollen did not object to it at trial, and may not complain
about its admission here. Further, as discussed above in connection with the
admission of Deputy Polens testimony regarding Hollens threats, the erroneous admission of evidence
may be harmless when a conviction is otherwise supported by independent evidence.
Again, Hollens convictions for Battery of Deputy Polen, and for Operating While Intoxicated,
were supported by sufficient evidence, a point Hollen does not dispute.
Hollens conviction of Battery as a class D felony carried a presumptive one
and one-half year sentence, which could have been enhanced by up to another
one and one-half years upon a finding of aggravating circumstances, see Ind. Code
§ 35-50-2-7(a), and his conviction of Operating a Motor Vehicle While Intoxicated as
a class A misdemeanor carried a maximum sentence of one year. See
Ind. Code § 35-50-3-2. The trial court found the following aggravating factors:
A. The probability that Defendant will commit another crime;
B. The Defendants lack of remorse;
That Defendant is unlikely to respond to probation.
(R. 354.) The only mitigator found by the court was:
That Defendant has a lack of substantial criminal history.
B. Standard of Review
(R. 354.) The court then sentenced Hollen to 24 months for Battery,
and one year for Operating a Vehicle While Intoxicated, to run concurrently.
Hollen claims that the trial court improperly considered and weighed the aggravating and
mitigating circumstances when it enhanced the sentence for his Battery conviction by six
Determining the appropriate sentence is within the trial courts discretion, and the trial
court will only be reversed if it has abused that discretion. Bacher v.
State, 722 N.E.2d 799, 801 (Ind. 2000). The trial court has the
discretion to increase or decrease a presumptive sentence upon finding aggravating or mitigating
circumstances. Id. The weighing of those factors is soundly within the courts
When the court imposes a sentence other than the presumptive sentence, we examine
the record to determine whether the trial court sufficiently explained its reasons for
selecting the sentence it imposed. Kile v. State, 729 N.E.2d 211, 213
(Ind. Ct. App. 2000). The trial court must identify all significant aggravating
and mitigating circumstances, explain why each circumstance is aggravating or mitigating, and weigh
mitigating circumstances against the aggravating factors. Utley v. State, 699 N.E.2d 723,
730 (Ind. Ct. App. 1998). When the record, however, indicates that the
trial court engaged in the evaluative processes but simply did not sufficiently articulate
the reasons for the sentence imposed, then the reasons underlying the sentencing statement
requirement have been fulfilled and there is no need for the reviewing court
to remand for a more specific sentencing statement. Becker v. State, 695
N.E.2d 968, 974 (Ind. Ct. App. 1998).
While a sentencing court must consider all evidence of mitigating circumstances presented by
a defendant, the finding of mitigating circumstances rests within the sound discretion of
the court. Bacher, 722 N.E.2d at 803. The court cannot ignore
mitigating factors that are clearly supported by the record. Widener v. State,
659 N.E.2d 529, 534 (Ind. 1995). The failure to find a mitigating
circumstance clearly supported by the record may imply that the circumstance in question
was overlooked. Id. However, the trial court need not consider, and
we will not remand for reconsideration of, alleged mitigating factors that are highly
disputable in nature, weight, or significance. Wilkins v. State, 500 N.E.2d 747,
749 (Ind. 1986). Moreover, a sentencing court need not agree with the
defendant as to the weight or value to be given to proffered mitigating
facts. Bacher, 722 N.E.2d at 803. Indeed, a sentencing court is
under no obligation to find mitigating factors at all, Echols v. State, 722
N.E.2d 805, 808 (Ind. 2000), and does not need to explain why it
has chosen not to find a mitigating circumstance. Bacher, 722 N.E.2d 803.
C. Discussion and Decision
1. Aggravating Factors
a. Likelihood of Future Crimes
Hollen first argues that the court failed to adequately explain why Hollen was
likely to commit another crime and why the factor was aggravating. The
court stated, [t]he risk that the Defendant will commit another crime. That
is something that the Court is concerned about. However, as looking at
Mr. Howards [sic] record, it has been up to this point relatively clean.
(R. 703.) The court later stated, Mr. Hollen, I do not
know if you will commit another crime or not. W[e] cant look
and for[e]see the future, but we do have before the court a serious
situation. (R. 704). According to Hollen, these statements were insufficient and
The record contains evidence supporting the courts conclusion that Hollen was at risk
to commit another crime. Hollen committed the offenses for which he was
convicted while under the influence of alcohol. Hollen submitted evidence during his
sentencing hearing indicating that he suffered from mental instability related to alcohol abuse,
and invited the court to conclude that his precarious state of mind was
a circumstance mitigating against the imposition of the presumptive sentence. Hollen, however,
specifically advised the trial court that he would not consider abstaining from alcohol
as a condition of probation. Given Hollens admitted history of alcohol abuse,
the relationship between Hollens drinking and the crimes committed herein, and Hollens refusal
to stop drinking, the court was entitled to find that Hollen might commit
other offenses in the future. Although the trial court could have explained
in greater detail its reasons for concluding that Hollen was at risk to
commit other crimes, we are convinced from the evidence and from the trial
courts statements that the court sufficiently considered and weighed this aggravating factor.
b. Lack of Remorse
Next, Hollen claims that the trial court misconstrued his good faith assertion of
innocence for lack of remorse, and improperly found this to be an aggravating
factor. A trial court may, under proper circumstances, consider lack of remorse
as an aggravating factor. Smith v. State, 655 N.E.2d 532, 539 (Ind.
Ct. App. 1995). A defendant lacks remorse for his crimes when he
displays disdain or recalcitrance, the equivalent of saying I dont care. Id.
A defendant does not, however, lack remorse by simply maintaining his innocence,
even after conviction. Id. A defendant has the right to dispute
his guilt throughout the criminal process, including sentencing. Bluck v. State, 716
N.E.2d 507, 512 (Ind. Ct. App. 1999). A court may not enhance
a sentence for lack of remorse based on a defendants good-faith assertion of
innocence. Id. Hollen claims that he did not lack remorse, but
simply asserted his innocence, and reasons that the court impermissibly penalized him for
disputing his guilt.
The State, however, generally argues that there was enough independent corroboration of Hollens
guilt that his assertion of his innocence in the face of that evidence
was not in good faith and amounted to a lack of remorse.
Our supreme court has specifically noted that [a] lack of remorse by a
defendant who insists upon his innocence may be regarded as an aggravator.
Bacher, 686 N.E.2d at 801. We have suggested that a defendants assertion
of innocence may support a finding of lack of remorse if there is
sufficient independent evidence of guilt. See Bluck, 716 N.E.2d at 513 (holding
that the use of the defendants assertion of innocence to show lack of
remorse was inappropriate when the evidence of guilt consisted solely of a victims
testimony and was not corroborated by physical evidence); Dockery v. State, 504 N.E.2d
291, 297 (Ind. Ct. App. 1987) (indicating that lack of remorse by a
defendant who claims innocence may be a valid aggravator unless the only evidence
of guilt was a victims uncorroborated testimony).
Here, Deputy Polens brother-in-law, who accompanied the deputy to Hollens residence for unknown
reasons, observed Hollen attack Deputy Polen and generally corroborated Deputy Polens testimony.
Hollen contended that he fought with Deputy Polen only to defend himself after
the deputy struck him without provocation. The jury chose to believe Deputy
Polen and his brother-in-law, and rejected Hollens defense. However, the rejection of
a defense by the finder of fact based upon corroborating evidence of guilt
does not necessarily mean that the defense was asserted in bad faith.
Otherwise, a defendant would be subjected to an enhanced penalty whenever he maintained
his innocence and lost. There is no indication in the record that
Hollens assertion of his innocence under these circumstances was in bad faith or
amounted to disdain or recalcitrance. The trial court accordingly erred by enhancing
Hollens sentence on that basis.
2. Mitigating Factor - Hollens Mental Condition
During the sentencing hearing, Hollen introduced certain records from St. Josephs Hospital in
Huntingburg, Indiana, where Hollen was taken for evaluation following his arrest. The
State did not object to the admission of these records. Rather, the
State invited the court to consider the records in their entirety, (R. 695)
and the court stated that the records would be incorporated into Hollens pre-sentence
investigation report. (R. 678.) These records indicate that at the time
of the crimes, Hollen was experiencing extreme paranoia, and was operating under the
belief that the police had been spying on him, that the telephone company
was somehow tapping his line, and officials were monitoring his behavior through the
use of satellites. (R. 118.) Hollen told hospital personnel that sheriffs deputies
had been living around his house for several weeks as part of a
scheme to get rid of him, move into his house, take his belongings,
and sell them. (R. 129.) Hollen was diagnosed with alcohol-induced psychotic
disorder, among other things. (R. 118.)
A defendants diminished mental capacity at the time of a crime may be
a valid mitigating circumstance, and a trial courts failure to consider clear evidence
of a defendants diminished capacity and find it to be a mitigating factor
may be erroneous. See Young v. State, 696 N.E.2d 386, 391-392 (Ind.
1998) (finding the defendants enhanced sentence manifestly unreasonable because the trial court failed
to find that the defendants mental retardation was a significant mitigating factor); Mayberry
v. State, 670 N.E.2d 1262, 1270 (Ind. 1996) (revising the defendants sentence because
the trial court declined to find the defendants mental illness mitigating, when the
defendant was found to be mentally ill when she committed her crime).
According to Hollen, his medical records clearly showed that he suffered from diminished
mental capacity at the time of his crimes. Hollen argues that the
trial court failed to consider this evidence, and should have found his mental
state to be a significant mitigating factor.
The record indicates that the trial court considered Hollens medical records, and Hollens
state of mind, when the court identified aggravating and mitigating circumstances. As
noted above, the state invited the court to consider Hollens records, and the
court specifically stated that the records would be made part of the presentence
report. The court addressed Hollens mental state during the sentencing hearing, stating
The court will allow you, Mr. Hollen, I dont know what the VA
H[o]spital or another treatment facility for alcoholism or maybe behavioral problems, if you
petition the Court and the Court is satisfied that the program such as
the VA hospital or any other facility would serve to assist you and
it is a facility where you would be secure at, the court wo[u]ld
entertain a motion by your attorney or you to have some of your
sentence served at that facility. I do believe that you do need
some help with your mental health and with any alcohol problem you may
(R. 706.) 3. Balancing of Factors
The court clearly considered Hollens state of mind during sentencing. The court,
however, as noted above, was under no obligation to find this factor mitigating,
and did not have to explain why it chose not to reduce Hollens
sentence on this basis. Since the record shows that the trial court
considered Hollens mental health during sentencing, we cannot say that the court erred
by failing to find this to be a mitigating factor.
The parties agree that Hollens expected failure to respond to probation was a
valid aggravating circumstance,
See footnote and agree that Hollens clean criminal record was a valid
mitigating circumstance. We have found that the probability Hollen would commit another
crime was properly aggravating, while Hollens lack of remorse was not. Thus,
two of the three aggravating factors found by the court remain. Hollens
position is that each of the aggravators identified by the court must have
had some independent aggravating value, and that if any are removed, his enhanced
sentence must necessarily reflect their absence. Hollen accordingly maintains that if any
of the aggravators identified by the court are found to be invalid, this
matter must be remanded for another sentencing hearing to provide the trial court
the opportunity to determine the value of the remaining aggravators. The State,
on the other hand, refers us to the general rule that a single
aggravator may support the full enhancement of a sentence,
see Bacher, 686 N.E.2d
at 803, and asks us to affirm the enhancement of Hollens sentence on
the basis of the remaining aggravators.
We do not question the validity of the rule upon which the State
relies. Properly understood, the rule stands for the proposition that a trial
court may impose a fully enhanced sentence upon an adequate showing of a
single aggravating factor. The rule allows a trial court to focus on
the factor or factors that truly warrant an enhanced sentence, without fear that
a reviewing court will reverse the courts sentence for lack of sufficient aggravation.
The rule should not, however, encourage trial courts imposing enhanced sentences to
simply compile a list of virtually every potentially aggravating factor, secure in the
belief that even if some of the aggravators identified are later found to
be invalid, a higher court will separate the wheat from the chaff and
still uphold an enhanced sentence on the basis of the general rule that
a single aggravator may support an enhanced sentence.
We reiterate that it is the trial courts job to identify valid aggravating
and mitigating factors, explain why they qualify as such, weigh those factors, and
articulate its reasons for imposing its sentence. When, as here, a trial
court identifies a number of aggravating factors and explains that they support an
enhanced sentence, we must assume that the court considered each factor to have
some aggravating value. Unless the trial court either assigns a specific weight
to each aggravator in terms of the proportion of an enhancement, or says
that any one of the aggravators identified could individually support the enhancement, we
are left to guess at the respective weight assigned to each factor.
Without such guidance from the trial court, it is difficult, if not logically
impossible, to affirm an enhanced sentence in its totality while at the same
time invalidating a certain proportion of the factors specifically identified by the trial
court as supporting that very enhanced sentence. Our options in such a
case would be to remand the matter to the trial court for a
new sentencing hearing, see Miller v. State, 709 N.E.2d 48, 50 (Ind. Ct.
App. 1999) (remanding for re-sentencing because we could not determine weight trial court
assigned to invalid aggravators), or to revise the sentence when appropriate pursuant to
our authority under Article 7, section 6 of the Indiana Constitution and Appellate
In this case, we are satisfied that neither option is necessary. When
the reviewing court is sufficiently persuaded that the original sentencing decision would have
been the same had the trial court not relied on an impermissible factor,
the sentence should be affirmed. Angleton v. State, 686 N.E.2d 803, 815
(Ind. 1997). Here, only one of the three aggravating factors identified by
the trial court, Hollens alleged lack of remorse, was invalid. As Hollen
recognizes, this factor, if valid, would at best be a modest aggravator.
See Bacher, 686 N.E.2d at 801. The removal of this factor is
therefore not particularly significant. Further, we have not added any mitigating factors.
Moreover, the trial court enhanced Hollens sentence only modestly. The court
could have, on the basis of the remaining factors, enhanced Hollens sentence for
Battery by an additional one and one-half years, and could have run both
of Hollens sentences consecutively. The court, however, only enhanced the Battery sentence
by six additional months, and ran Hollens sentences concurrently. Thus, given the
relative insignificance of the loss of one of three aggravators, the absence of
new mitigators, and the minimal enhancement at issue, we are sufficiently persuaded that
the trial courts sentencing decision would have been the same had the court
not identified Hollens lack of remorse as an aggravator. We therefore affirm
We conclude that although Deputy Polen injected evidence that the parties concede was
inadmissible when he violated the courts pre-trial order in limine by testifying about
Hollens threats, the trial court did not abuse its discretion by refusing to
declare a mistrial because admission of this evidence was harmless, and any possible
prejudice was cured by the courts timely admonishment. We similarly conclude that
while admission of Deputy Polens handwritten notes on his Affidavit of Probable Cause
was error, it was harmless since the evidence was merely cumulative of Deputy
Polens subsequent testimony, and because there was sufficient independent evidence supporting Hollens convictions.
Finally, while the trial court erred in finding Hollens lack of remorse
to be an aggravating factor, the exclusion of this factor did not affect
the courts sentencing decision.
BAKER, J., concurs.
MATTINGLY, J., concurs with separate opinion.
COURT OF APPEALS OF INDIANA
HOWARD O. HOLLEN, )
vs. ) No. 13A01-0001-CR-6
STATE OF INDIANA, )
MATTINGLY, Judge, concurring with opinion
I fully concur with the majority that Hollen was not prejudiced by the
Deputys testimony about Hollens threats or by the admission of cumulative evidence in
the form of the Deputys handwritten notes. However, I write separately to
address the majoritys suggestion that a trial court considering a sentence enhancement based
on aggravating circumstances is obliged to assign a specific weight to each aggravator
in terms of the proportion of an enhancement. Such an obligation is,
I believe, inconsistent with our well-established standard of review of sentencing decisions and
with the rule that a single aggravator may support an enhanced sentence even
if other aggravators are determined to be invalid.
We are routinely involved in the review of sentences, but our standard of
review remains highly deferential. While sentencing decisions are not per se unreachable
on appeal, the trial court is afforded the broadest of discretion in making
the sentencing decision within the confines of the statutory limitations. Johnson v.
State, 455 N.E.2d 897, 902 (Ind. 1983). Appellate courts have the constitutional
authority to review and revise sentences, Ind. Const. art. VII, § 4, but
will not do so unless the sentence imposed is "manifestly unreasonable in light
of the nature of the offense and the character of the offender."
Ind. Appellate Rule 17(B); Noojin v. State, 730 N.E.2d 672, 679 (Ind. 2000).
The standard is "not whether in our judgment the sentence is unreasonable,
but whether it is clearly, plainly, and obviously so." Id., quoting Prowell
v. State, 687 N.E.2d 563, 568 (Ind. 1997).
The majoritys suggestion that the trial court is obliged to assign to each
aggravating factor a specific proportional weight seems to me inconsistent with this broad
discretion and inappropriate in light of the inherent complexity of the weighing process.
An appellate court will not revise an enhanced sentence where the trial
court has found aggravating circumstances, the sentence is authorized by statute, and the
sentence is not manifestly unreasonable: We are not bound to conduct a
de novo review of the sentencing hearing and assess or reweigh the trial
courts findings and conclusions regarding aggravating and mitigating circumstances. Bish v. State,
421 N.E.2d 608, 620 (Ind. 1981).
Assigning a proportional weight to each aggravating circumstance could serve only to encourage
such inappropriate appellate reweighing and reassessment of the trial courts sentencing decision, and
to encourage appeals premised on the trial courts improper assignment of, or failure
to assign, proportional weight to the aggravating factors. In light of the
Bish holding and the breadth of the trial courts discretion in sentencing decisions
I believe we cannot and should not require the trial court to articulate
the proportion by which each aggravating circumstance supported a sentence enhancement.
It is unclear from the record whether Jellison meant that Hollen had
one or two guns. Hollen conceded that he arrived at Jellisons residence
with a handgun, but claimed that the firearm remained in his vehicle in
Footnote: Hollen explained his conversation with the phone company representative by claiming that
they, apparently the phone company, were coming out the road out there, and
that [t]he people that was out there messing around and what and then
things you know and they was coming out the road. And they
pulled in my driveway and I said I dont care if they (inaudible),
them deer is plenty of them out there, but there wasnt turkeys you
know. [sic] (R. 608-609.) This statement, and others offered by Hollen
during pre-trial conferences and at trial, raises questions about Hollens state of mind
and his ability to fully comprehend the nature of these proceedings. Hollen
initially advised the State that he intended to assert a defense of insanity.
(R. 50.) The State, however, objected to Hollens assertion of this defense
as untimely pursuant to Indiana Code section 35-36-2-1. (R. 55.) The
court does not appear to have ruled on the timeliness of Hollens assertion
of his insanity defense, and Hollen apparently did not pursue the matter.
Hollen later underwent a psychological examination and was found to be fit to
stand trial. Hollen presents no argument upon appeal regarding the insanity defense
issue or his competency to be tried. His only argument with regard
to his competency is his claim that the trial court erroneously failed to
find that his state of mind was a significant mitigating factor, as discussed
Footnote: During oral argument, Hollen contended that since Jellison did not testify that
Hollen specifically threatened to kill his neighbors
with a gun, Jellisons testimony was
not sufficiently cumulative of Deputy Polens to render admission of the deputys testimony
harmless. We see little difference between a statement that Hollen threatened his
neighbors with a gun, and a statement that Hollen threatened to kill his
neighbors while in possession of a gun located in his nearby parked car.
During oral argument, Hollen cited our recent case,
Schoultz v. State, 735
N.E.2d 818 (Ind. Ct. App. 2000), for the proposition that a citizen has
the right to use reasonable force to resist arrest when a police officer
uses unconstitutionally excessive force to effect the arrest. Our holding in Schoultz
is not applicable here. First, Schoultz involved a conviction for resisting arrest,
not Battery. Moreover, in Schoultz, the defendant fought with the arresting officer
using reasonable and proportionate force after the officer used unconstitutionally excessive force by
clubbing the defendant to stop him from shouting obscenities during the officers investigation
of another individual. Even if Deputy Polen had struck Hollen first, and
if this was unconstitutionally excessive force, Hollen responded by grabbing and tearing the
deputys scrotum, hardly reasonable or proportional. Thus, Hollen would not have been
entitled to so resist Deputy Polens arrest.
During the sentencing hearing, Hollen repeatedly testified that he would not quit
drinking as a condition to any parole or probation arrangement. Hollen accordingly
concedes that he would probably not respond well to probation.