Aaron Michael Toller v. State of Indiana (mem. dec.) ( 2019 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Jul 25 2019, 10:03 am
court except for the purpose of establishing CLERK
Indiana Supreme Court
the defense of res judicata, collateral Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEY FOR APPELLANT ATTORNEYS FOR APPELLEE
David W. Stone IV Curtis T. Hill, Jr.
Anderson, Indiana Attorney General of Indiana
Caroline G. Templeton
Deputy Attorney General
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Aaron Michael Toller, July 25, 2019
Appellant-Defendant, Court of Appeals Case No.
18A-CR-2393
v. Appeal from the
Madison Circuit Court
State of Indiana, The Honorable
Appellee-Plaintiff. Thomas Newman, Jr., Judge
Trial Court Cause No.
48C03-1612-MR-2547
Altice, Judge.
[1] Following a jury trial, Aaron Michael Toller appeals his conviction and
sentence for murder, a felony, and his sentences for Level 6 felony obstruction
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of justice, Class A misdemeanor false informing, and two counts of Class A
misdemeanor carrying a handgun without a license. He raises several issues
that we restate as:
I. Did the trial court abuse its discretion when it excluded text
messages between Toller and the victim, Lindsey Wilkins?
II. Did the trial court abuse its discretion in sentencing Toller?
III. Is Toller’s sentence inappropriate in light of the nature of the
offense and the character of the offender?
[2] We affirm.
Facts & Procedural History
[3] At around 11:20 p.m. on December 7, 2016, thirty-three-year-old Wilkins left
her job at a restaurant and picked up her eight-year-old daughter, C.W., from
the home of Wilkins’s grandmother, Judith Wilkins (Judith), who was caring
for C.W. while Wilkins was at work. Judith recalled that Wilkins was “her
normal self” and her mood seemed “fine” when she stopped at the house for
C.W. Transcript Vol. II at 43. Wilkins then picked up her fiancé, Toller, age
twenty-three, and the three went to the home where they lived together. During
the ride, Toller and Wilkins were “kind of” angry with each other. Transcripts
Vol. III at 159. At home, Wilkins tucked her daughter into bed as normal.
[4] At 1:51 a.m. on December 8, Madison County emergency dispatch received a
911 call from Toller screaming, “[M]y girlfriend just shot herself.” Transcript
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Vol. II at 240. He told the dispatch operator that Wilkins had shot herself in
the head, that he did not know where the gun was, and that Wilkins’s daughter
was asleep in the house. When Toller was asked whether he was there when it
happened, Toller said, “No.” Id. at 241. Toller stayed on the line with 911
dispatch until police arrived. Wilkins’s mother, Jennifer Wilkins (Jennifer)
received a call from Toller at about 1:56 a.m., telling her to get up and get to the
house, as Wilkins had been shot.
[5] Anderson Police Department Officer Michael Lee was the first to arrive at the
scene at 1:54 a.m. In the front yard, he came into contact with Toller, whose
demeanor Officer Lee described as “excited” or “heightened.” Id. at 50, 61.
Toller told Officer Lee that his girlfriend had been shot and that she was on her
bed. Toller did not say anything about suicide to Officer Lee. Officer Zach
Seig arrived next, and he stayed with Toller, while Officer Lee went inside.
Officer Lee found Wilkins on the bed, dressed, and with her feet under a
comforter. Officer Lee touched, but did not move, her right wrist to check for a
pulse, but found none. He saw some pills, later determined to be
acetaminophen, on the floor, as well as a silver shell casing. He did not see a
firearm in the room.
[6] Toller told Officer Seig that he had walked to the home from another location
and that when he entered the house, he could smell gun powder, and then he
found Wilkins deceased from a gunshot to her head. Officer Seig asked Toller
“more than once” if he had touched or moved anything, and Toller replied that
he had not. Id. at 68.
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[7] Officer Joe Garrett was the third officer on the scene, and he checked on C.W.,
who was asleep in her room, and he sat in a chair outside her door to intercept
her if she woke and exited her room. Officer Garrett remained there thirty to
forty-five minutes, and during that time, Toller “came up and kneeled on the
floor beside [him] and asked what was taking so long,” and Officer Garrett
explained that they were waiting on the coroner “to get there in order for us to
move the body to try to discover the gun” that might have been under her. Id.
at 110. Toller matter-of-factly replied, “I don’t think you’re going to find a gun
. . . I don’t think that there’s any guns in this house.” Id. at 111. This struck
Officer Garrett as “very odd” and “suspicious” as there was a bullet wound to
Wilkins’s head and a shell casing on the floor. Id. Officer Garrett explained
that, since she died from a gunshot wound, police were going to look for a gun,
to which Toller stated, a couple of times, “I can’t believe this sh*t” and then he
got up and walked outside. Id. Eventually, C.W. woke and Toller came and
carried her outside to her grandmother. C.W. recalled that Toller “said sorry
over and over again” to her. Transcript Vol. III at 160.
[8] Officer Bert Chambers, a scene technician, was at the home within minutes of
the dispatch. It “immediately” raised suspicion to him and other officers that
that there was no gun, but he recognized it might have been under Wilkins’s
body. Transcript Vol. II at 132. After taking pictures and assisting the coroner
with moving Wilkins’s body, Officer Chambers checked for weapons and found
none. Sergeant Nicholas Durr arrived and was advised by the other officers
that it was a possible suicide with gunshot to the head but the gun was not
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located inside the house, so he called for a detective with the criminal
investigation division. Detective Norman Rayford responded and arrived on
the scene around 3:15 a.m. 1
[9] Later that morning, around 7:30 a.m., Toller waived his rights and agreed to a
recorded interview with Detective Rayford. Toller said that he walked part of
the way home and entered the house, smelled gunpowder, and found Wilkins
deceased. Toller thereafter agreed that, given there was no gun, it was not
suicide and someone else shot her, but he maintained it was not him. Toller
suggested that Wilkins’s ex-boyfriend, Shawn, who was in prison, may have
hired some other person to kill Wilkins. Detective Rayford suggested that any
such person who would commit a “hit” like that would have killed C.W. also
because she could tell on them, to which Toller responded, “[b]ut she didn’t
come out” of her room. Transcript Vol. IV at 173.
[10] When asked if he carried any weapons, Toller stated that he had a Glock .40
caliber but that he had hidden it three and one-half weeks prior to Wilkins’s
death in a tree line in a nearby field. When Detective Rayford asked Toller
“what happens when that Glock comes back to be the same weapon that fired a
1
We note that Detective Rayford’s testimony begins in Transcript Volume III, which ends at page 250. Volume
IV begins during Detective Rayford’s direct examination, but it does not resume at the same point where his
testimony ended in Volume III, indicating that a portion of his testimony may be missing from the record
before us.
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bullet that went through her head?”, Toller replied, “I can guaranty [sic] you it’s
not.” Id. at 155.
[11] Toller agreed to assist police with locating the Glock, which Toller then said
was Wilkins’s gun, not his. Detective Jake Brooks located the .40 caliber Glock
handgun under some leaves that morning around 9:00 a.m. The firearm barely
had frost on it and did not have any surface rust on it, although in Detective
Brooks’s personal experience, a firearm left outside would begin to show signs
of surface rust after approximately a week, depending on the weather. As part
of the investigation, Detective Brooks collected Toller’s clothing including a
blue sweatshirt, which had what Detective Brooks believed was blood stains on
one sleeve. At a later date, when a prosecutor asked to view the evidence in the
case, Detective Rayford removed the sweatshirt from the evidence bag, and a
white pill fell out of the sweatshirt, which was determined to be acetaminophen,
the same as what was scattered on the floor of the bedroom.
[12] Later in the police interview, when Detective Rayford was urging Toller to
“accept responsibility for what happened at that house,” Toller stated twice,
“[Wilkins] killed herself.” Id. at 179. He said that he was not in the room but
was in the house and “heard the gun go off.” Id. at 180. Detective Rayford
asked where the gun was, and Toller said that, in a panic, he had thrown it
behind a nearby abandoned building. He described it as a 9 mm black and
silver handgun and stated that he did not know whom it belonged to. He
explained that he “freaked out” and threw it because he was on probation and
did not want to be in a house with a gun. Id. at 185. He thereafter told
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Detective Rayford, “I got her the gun,” stating that he bought it from a co-
worker named Keith about a week prior. Id. at 186.
[13] Using Toller’s description of the gun’s location, a detective and an evidence
technician located a Taurus 9 mm semi-automatic pistol around 1:30 p.m. It
was later determined that the bullet that caused Wilkins’s death came from that
Taurus handgun. It was also determined that two days before Wilkins’s death,
on December 6, Toller had gone to the Keith’s home and purchased the Taurus
9 mm from him. At the time of the sale, Keith had prepared a bill of sale,
which reflected the same serial number as that on the gun collected by police.
Wilkins’s daughter, C.W., was present when Toller purchased this gun, and she
asked Toller at that time why he was purchasing it and, “under his breath[]”
Toller said to her, “You’ll see.” Transcript Vol. III at 157.
[14] Dr. Thomas Sozio, a forensic pathologist, conducted the autopsy on December
9. Dr. Sozio observed “high velocity blood spatter” to Wilkins’s left and right
hands. Id. at 34. Based on his observation at the entrance wound on Wilkins’s
right temple, Dr. Sozio opined that the gun had firm contact with Wilkins’s
head. Dr. Sozio noted that the toxicology report indicated a metabolized blood
alcohol concentration of .016 (that may have been .021 at some earlier point),
as well as an “elevated level of acetaminophen” in her system. Id. at 40-41.
She also had a low level of Alprazolam, or Xanax, in her system, which,
combined with the alcohol, might have made her drowsy but would not have
resulted in an overdose. Dr. Sozio concluded that “nothing in the [t]oxicology
report” impacted the cause of death, which was a gunshot to the head. Id. at
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39. On the day of autopsy and in his written report issued on December 23, Dr.
Sozio identified the manner of death as suicide.
[15] After an investigation that included conversations with law enforcement and
review of autopsy results, the Madison County Coroner issued a death
certificate in August 2017, identifying the cause of death to be gunshot to the
head and the manner of death to be undetermined.
[16] On December 14, 2016, the State charged Toller with murder, a felony. In
August 2017, the State added the following charges: Level 6 felony obstruction
of justice, Level 6 felony residential entry, Level 6 felony neglect of a
dependent, Class A misdemeanor false informing, and two counts of Class A
misdemeanor carrying a handgun without a license. The State later dismissed
the residential entry and neglect of a dependent charges.
[17] Prior to trial, the State and Toller stipulated that Toller would submit to a
video-recorded polygraph test and that the results would be admissible at trial.
Indiana State Police Sergeant John Campbell administered the test to Toller in
November 2017. Toller was in custody and he was transported to the
Pendleton Police Post, where he met his counsel and they had an opportunity
to review a list of questions that would be asked. Sergeant Campbell’s opinion
was that Toller was “deceptive on the two relevant questions” that asked Toller
if he shot Wilkins. Transcript Vol. IV at 111. Sergeant Campbell ran the test
results through a computer algorithm that indicated “[t]here was a less than one
percent chance that [Toller] was truthful.” Id.
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[18] On July 30, 2018, the State filed a motion in limine to exclude, among other
things, evidence regarding Wilkins’s mental health because Toller had not
provided any medical records or witnesses in discovery. Toller argued he was
not seeking to admit professional diagnosis, but asserted that lay testimony,
including past statements of the victim regarding her then-existing mental or
emotional condition would be admissible under Ind. Rule Evidence 803(3).
The trial court granted the State’s motion but indicated it would allow Toller to
present offers to prove, out of the jury’s presence, with testimony of four of
Wilkins’s family members, who testified that Wilkins never threatened suicide
or attempted suicide.
[19] At the July 2018 jury trial, Wilkins’s mother, Jennifer, described Toller’s
demeanor on the phone when he called her to say that Wilkins had been shot as
“calm.” Transcript Vol. II at 4. According to Jennifer, when she arrived at the
house, Toller came up to her, gave her a hug, and said, “I’m so sorry” and “I
didn’t mean for this to happen. I didn’t want it to end this way.” Id.
[20] Wilkins’s sister, Simanney, testified that she and Toller were both working at a
Noblesville restaurant on December 7, 2016. She stated that Toller was angry
at her for having told Wilkins that Toller appeared to be having a relationship
with another female employee at work named Monica Dorsey. That night,
Toller told Simanney that “if [she] would just keep her mouth shut that [he and
Wilkins] would not be arguing” and that “it was all [Simmany’s] fault” for
telling Wilkins about Dorsey. Id. at 34. Simanney testified that she called
Wilkins that night and told her about having had that conversation with Toller.
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[21] Dr. Sozio testified that, although his December 2016 autopsy report had
indicated the manner of death as suicide, he subsequently became aware that
some information he had relied upon was inaccurate or incomplete. He further
stated that, after having received further information concerning the
circumstances surrounding Wilkins’s death, he no longer felt confident in
calling Wilkins’s death a suicide and changed his opinion on the manner of
death to “undetermined.” Transcript Vol. III at 71. Dr. Sozio observed that, in
the case of suicide, blood spatter would “typically” be seen on one hand, but in
this case both hands had the blood spatter, which reflected that both of her
hands were up near the entry wound. Id. at 35. Regarding the trajectory of the
bullet, he noted that the typical pattern he sees in the case of a suicide with a
gunshot to the head is moving from the right to left but also going “upwards
from the front to the back,” which was not present in Wilkins’s case. Id. at 72.
[22] David Jordan and Christopher Short, two men who had, separately from each
other, shared a Madison County jail cell with Toller, testified that Toller stated
that he shot Wilkins. Short shared a maximum security dorm-style jail cell with
Toller on two different occasions in 2017 for ninety days each. According to
Short, Toller gave varying accounts but said on ten or more occasions that he
killed Wilkins by shooting her in the right side of the head. Toller told Short
that he “was trying to make it look like she had done it herself[.]” Id. at 207.
He did it because he had found a new “true love” named Monica a few weeks
prior and needed to “get rid of the psycho[.]” Id.
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[23] Jordan shared a cell with Toller on two occasions in February 2017. Toller told
Jordan, “I killed my girl” but “I got a way where I might be able to get out of
it” explaining that he set it up to make it look like a suicide. Id. at 231. Jordan
said that Toller indicated he “freaked out” at the time of the shooting and “got
rid of the gun.” Id. at 233. Jordan said that during the time he was with Toller
in jail, a female came to visit Toller to bring him money and Jordan
commented that she was good looking, and Toller replied, “[N]ow you see why
I killed [Wilkins] for her.” Id. at 235.
[24] Detective Rayford testified about his investigation and interview with Toller,
which was played to the jury. On cross-examination, after Detective Rayford
confirmed that Wilkins’s and Toller’s cell phones had been sent to Indiana State
Police (ISP) for an extraction report, Toller sought to admit a series of text
messages exchanged between Toller and Wilkins in the hours leading up to her
death. The State objected on the basis of hearsay and relevance, and Toller
argued that the texts were relevant to the jury issue of whether her death was a
suicide or homicide and that the texts were admissible under Ind. Evidence
Rule 803(3) concerning the declarant’s then-existing state of mind. The trial
court sustained the State’s objections and excluded the text messages, and
Toller made an offer of proof. To make additional record on the issue, Toller
indicated an intention to call as a witness the ISP expert who prepared the
extraction report and to re-offer the text messages into evidence. The State
agreed that the witness would provide proper foundation but again objected on
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the basis of hearsay. The trial court again sustained the State’s objection and
excluded the texts.
[25] The jury returned guilty verdicts on all charges: murder, Level 6 felony
obstruction of justice, Class A misdemeanor false informing, and two counts of
Class A misdemeanor carrying a handgun without a license. The trial court
held a sentencing hearing on September 7, 2018. It sentenced Toller as follows:
sixty-five years for murder, two and one-half years for obstruction of justice,
one year for false informing, and one year each on the two carrying a handgun
without a license convictions. The court ordered the sentences to be served
consecutively for an aggregate term of seventy and one-half years, all to be
executed in the Indiana Department of Correction. Toller now appeals.
Discussion & Decision
I. Exclusion of Evidence
[26] Toller asserts that the trial court erred when it excluded a series of text messages
that he and Wilkins had exchanged in the twenty hours prior to her death. A
trial court exercises broad discretion in ruling on the admissibility of evidence,
and an appellate court should disturb such rulings only where it is shown that
the court abused its discretion. Camm v. State, 908 N.E.2d 215, 225-26 (Ind.
2009). Moreover, errors in the admission or exclusion of evidence will be
disregarded as harmless unless they affect the substantial rights of a party. Ind.
Trial Rule 61; Ind. Evidence Rule 103(a). “In other words, we will find an
error in the exclusion of evidence harmless if its probable impact on the jury, in
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light of all of the evidence in the case, is sufficiently minor so as not to affect the
defendant’s substantial rights.” Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct.
App. 2014).
[27] Toller maintains that the texts were admissible under Evid. R. 803(3), which
creates a hearsay exception for statements of the declarant’s then-existing state
of mind at the time the statement was made. State of mind, as that term is
defined, may include emotion, sensation, physical condition, intent, plan,
motive, design, mental feeling, pain, and bodily health. Camm, 908 N.E.2d at
226. In criminal cases involving out-of-court statements of a victim’s state of
mind, our Supreme Court has identified three instances where such statements
may be admissible, the third of which is relevant in this case: “‘[T]o show the
intent of the victim to act in a particular way.’” Id. (quoting Hatcher v. State, 735
N.E.2d 1155, 1161 (Ind. 2000)). Such declarations may be admitted not only as
proof of the declarant’s then-existing state of mind, but also as circumstantial
evidence of the declarant’s future conduct. 2 Id. “A jury may infer from the
declarant’s past state of mind that the declarant held the same mental state at a
future time and acted on it.” Id.2
The Camm Court explained that this sub-category of evidence is permitted because it lacks many of the
dangers traditionally associated with hearsay. 908 N.E.2d at 226. That is, a jury’s connecting a declarant’s
expressed mental state to their actions requires inferring only that one generally does what they intend, with
no need to appraise memory, perception, or testimonial qualities. Id.
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[28] Here, the series of text messages that were excluded occurred between
December 7 at 7:35 a.m. and December 8 at 12:59 a.m., when Wilkins picked
up Toller. Included within the lengthy text dialogue were the following
statements by Wilkins:
I took some stuff to help knock me out. I was tired of worrying
bout what you were out there doing and who you were with.
[Dec. 7, 2016, 7:38 a.m.]
My anxiety about this is at a maximum. All i can think of is how
to make it go away. [Dec. 7, 2016, 4:08 p.m.]
Its [sic] so overwhelmingly [sic] thinking about u spending any
time with her it makes me wanna just go get high and forget it.
[Dec. 7, 2016, 4:11 p.m.]
Feel like i could have a heart attack at any moment. Another
reason i know your [sic] the one. Never have i been more scared
to lose anyone ever. [Dec. 7, 2016, 4:51 p.m.]
I cant [sic] mentally, physically or emotionally deal the thought
of u spending time with any other girl or woman. [Dec. 7, 2016,
5:19 p.m.]
Exhibit Vol. 2, Defendant’s Exhibit E at 27, 40, 43, 44. Toller urges that the
messages show a distraught state of mind from which the jury could have
inferred that she chose to act in the future – take her own life – rather than live
without a relationship with Toller. He claims that the exclusion of the text
messages deprived him of the right to present a defense and that “[t]he
messages were the only objective evidence . . . that supported his claim the
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death was a suicide.” Appellant’s Brief at 11. The State counters that the trial
court properly excluded the messages because they “did not indicate that
Wilkins intended to act in any particular way” and “[a]t most . . . indicate[d]
that Wilkins was upset” because she believed Toller was cheating on her with
Dorsey. Appellee’s Brief at 15.
[29] We find no need to resolve the dispute because, even if it was error to exclude
the texts, such error did not affect Toller’s substantial rights and was harmless,
given the extensive evidence of his guilt. See Hall v. State, 36 N.E.2d 459, 474-
75 (Ind. 2015) (exclusion of defendant’s phone call with victim’s mother, even if
error, was harmless where State presented ample evidence of defendant’s guilt
and error did not contribute to verdict against him). Here, Toller told 911 that
Wilkins had shot herself, but there was no gun at the scene. He lied to police at
the scene by saying that he had not touched or moved anything when, in fact,
he had discarded one and possibly two handguns before calling 911. Two days
prior to Wilkins’s death, Toller bought the Taurus 9 mm, which was used to kill
Wilkins, and when C.W. asked him at that time why he was buying the gun, he
told her, “You’ll see.” Transcript Vol. III at 157. While police were at the house
investigating the shooting, Toller told police they were not going to find a gun
in the house and that he could “guarant[ee]” that police would not later
determine that the Glock fired the fatal bullet. Transcript Vol. IV at 155. He
asked Officer Garrett, who was guarding C.W.’s room, what was taking so long
with the process and when the officer explained they were looking for the gun,
Toller stated, “I can’t believe this sh*t.” Transcript Vol. II at 111. When Toller
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carried C.W. from her bedroom to her grandmother, he repeatedly told C.W.
that he was sorry. He was inconsistent in his police interview with Detective
Rayford, first saying it was suicide, then suggesting someone else killed her,
then returning to the theory that it was a suicide but stating that he had “freaked
out” and tossed the gun, from which the fatal shot was fired, behind an
abandoned building. Transcript Vol. IV at 185. He also told Detective Rayford
that he had hidden the Glock – which he first indicated was his and then later
said was Wilkins’s – more than three weeks prior, but it did not show signs of
rust consistent with being outside for that period of time. There were
acetaminophen pills scattered about the room and one fell from his sweatshirt
that had been collected as evidence. He was found to be deceptive in a
polygraph test when asked if he shot Wilkins. Toller was angry at Wilkins’s
sister, Simanney, for telling Wilkins about Dorsey and blamed her for his
conflicts with Wilkins.
[30] Although Dr. Sozio initially reported the manner of death as a suicide, he
changed that opinion to undetermined after learning further information that
was not available to him at the time of his report. Additionally, Dr. Sozio
noted that the trajectory of the bullet was not consistent with the typical pattern
of suicide by gunshot to the head and the high velocity blood spatter on the
back of both of Wilkins’s hands was likewise not consistent with suicide. While
in jail awaiting trial, Toller separately told Short and Jordon, who received no
benefit for testifying, that he had shot Wilkins in the head and that he had
staged it to make it look like a suicide. Given the wealth of evidence against
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him, Toller has failed to show that the exclusion of the texts prejudiced his
substantial rights and, accordingly, we conclude that any error in the exclusion
of that evidence was harmless.
II. Abuse of Discretion in Sentencing
[31] Toller argues that his aggregate sentence of seventy and one-half years is an
abuse of discretion. “Generally speaking, sentencing decisions are left to the
sound discretion of the trial court, and we review the trial court's decision only
for an abuse of this discretion.” Singh v. State, 40 N.E.3d 981, 987 (Ind. Ct.
App. 2015), trans. denied. 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.
Anglemeyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh’g, 875
N.E.2d 218. A trial court may abuse its discretion by failing to enter a
sentencing statement, entering findings of aggravating and mitigating factors
unsupported by the record, omitting factors clearly supported by the record and
advanced for consideration, or giving reasons that are improper as a matter of
law. Id. at 490-91. Remand for resentencing may be the appropriate remedy “if
we cannot say with confidence that the trial court would have imposed the
same sentence had it properly considered reasons that enjoy support in the
record.” Id. at 491.
[32] In arguing that the trial court abused its discretion, Toller asserts that the impact
on survivors was an improper aggravating circumstance as a matter of law
because there was no evidence that the impact of the death was beyond that
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which normally accompanies the violent death of a loved one. 3 See Smith v.
State, 770 N.E.2d 818, 821-22 (Ind. 2002) (recognizing that impact on others
may qualify as an aggravator in certain cases where a defendant’s actions had
an impact “of a destructive nature that is not normally associated with the
commission of the offense,” but holding that the trial court’s reliance on the
impact on others was improper because “the trial court did not articulate how
the impact on [the victim’s three-year-old] child was of the type so distinct that
it raised to the level of an aggravating factor”).
[33] Here, at the sentencing hearing, the trial court found as an aggravator that
Toller was on probation at the time that he committed these offenses, and the
court found no mitigators. It thereafter stated that “this was a highly . . .
premeditated [] murder” that “exemplified . . . a height of selfishness that is
going to have extraordinary ripple effect over a lot of people for the rest of their
lives[.]” Transcript Vol. V at 201. To the extent that the trial court did consider
the impact on others to be an aggravating circumstance but failed to “articulate
how the impact” was “so distinct that it raised to the level of an aggravating
factor” as Smith requires, our courts have recognized that “when a trial court
improperly applies an aggravator, but other valid aggravating circumstances
exist, a sentence enhancement may still be upheld.” Smith, 770 N.E.2d at 822.
3
Toller also argues that “the senselessness of the crime” was an improper aggravator because “[m]ost
murders are by definition senseless.” Appellant’s Brief at 25. However, the trial court did not expressly state
that the killing was senseless or identify such as an aggravator, and thus we do not reach Toller’s argument
on this point.
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In the present case, the trial court found that this was a premeditated murder,
and, at the time of the offenses, Toller was on probation and possessed two
firearms. Toller does not claim that these circumstances are improper
aggravators. We are confident that the trial court would have imposed the
same sentence even if it had not found the impact on friends and loved ones to
be an aggravating factor. Accordingly, we find no abuse of discretion in the
trial court’s sentencing of Toller. See Edrington v. State, 909 N.E.2d 1093, 1101
(Ind. Ct. App. 2009) (affirming sentence where appellate court was confident
that trial court would have imposed the same sentence even if it had not
considered an improper aggravator), trans. denied. The trial court did not abuse
its discretion in sentencing Toller.
III. Inappropriate Sentence
[34] We may revise a sentence authorized by statute if, after due consideration of the
trial court’s decision, we find the sentence inappropriate in light of the nature of
the offense and the character of the offender. Ind. Appellate Rule 7(B).
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, 1224 (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 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. Deference to the trial court “prevail[s] unless
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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). The
burden is on the defendant to persuade us his sentence is inappropriate.
Childress v. State, 848 N.E.2d 1073, 1080 (Ind. 2006).
[35] When determining whether a sentence is inappropriate, the advisory is the
starting point the Legislature has selected as an appropriate sentence for the
crime committed. Childress, 848 N.E.2d at 1081. For his murder conviction,
Toller faced a sentencing range from forty-five to sixty-five years, with the
advisory sentence being fifty-five years. Ind. Code § 35-50-2-3. For his Level 6
felony conviction for obstruction of justice, Toller faced between six months
and two and one-half years, with the advisory being one year. I.C. § 35-50-2-7.
Toller faced up to one year on each of his three Class A misdemeanors for false
informing and carrying a handgun without a license. I.C. § 35-50-3-2. The trial
court ordered the maximum sentences on each conviction and ordered them to
be served consecutively for a total of seventy and one-half years.
[36] As to the nature of the offenses, Toller shot Wilkins at close distance in her
temple, with her daughter sleeping in the other room. The killing was
premeditated and without provocation. Before calling 911, he admittedly
disposed of one and, police believed, two guns. He purchased the 9 mm
handgun used to kill her just days before from a coworker. When he left the
house to dispose of the guns, he left Wilkins’s eight-year-old daughter in the
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home alone with her mother’s dead body in a nearby room. According to
Wilkins’s mother, Jennifer, Toller’s delay “left it impossible that her organs
could be donated” as Wilkins wanted. Transcript Vol. V at 191. There is
nothing about the nature of the offenses that warrants revision of Toller’s
sentence.
[37] As to Toller’s character, we recognize that his criminal history was minimal,
with one misdemeanor, but he was on probation at the time of his offenses. He
possessed two firearms when he was to have none. The evidence reflects and
the court found that Toller planned the murder. He bought the handgun and
when eight-year-old C.W. inquired why he was buying it, he told her “[y]ou’ll
see.” Transcript Vol. III at 157. Toller lied to police at the scene, and he lied in
the police interview, repeatedly changing his story of what happened, at one
point identifying her ex-boyfriend as a possible suspect. This obstructionist and
deceptive conduct does not reflect positively on his character.
[38] Toller has not shown that his sentence is inappropriate in light of the nature of
the offenses and his character.
[39] Judgment affirmed.
Kirsch, J. and Vaidik, C.J., concur.
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