MCGRAW v. STATE (2024)

MEMORANDUM DECISION

Case Summary

[1] Maurice McGraw, Jr., appeals his convictions for level 5 felony domestic battery resulting in serious bodily injury, level 6 felony intimidation, and level 6 felony criminal confinement. He raises the following issues for our review: (1) whether the trial court abused its discretion by admitting into evidence his voicemail message to the victim; (2) whether the trial court demonstrated bias against him during sentencing and committed fundamental error; and (3) whether the trial court abused its discretion during sentencing by considering allegedly improper aggravating circumstances and failing to consider certain mitigating circumstances. Finding no abuse of discretion, bias, or fundamental error, we affirm.

Facts and Procedural History

[2] In 2022, A.G. and McGraw were romantically involved and lived together in A.G.’s home. McGraw kept a rifle and a handgun in the home. On September 3, 2022, A.G. ended the relationship, but McGraw took it as “a joke” and “went to sleep” in A.G.’s bed. Tr. Vol. 3 at 135.

[3] The next morning, September 4, A.G. left her home to purchase food and drink for herself and McGraw. When she returned home, she walked upstairs to her bedroom, carrying the food and drink she had purchased. When she reached the bedroom, McGraw “tr[ied] to argue” with her, so she “turned right back around and went downstairs.” Id. at 137.

[4] McGraw, now angry, followed A.G. and told her that she “didn't care about his feelings.” Id. at 138. He then grabbed A.G. by her ponytail and struck her with his fist “more than five” times in her forehead, left and right cheeks, and mouth. Id. at 139. A.G. tried to move away from McGraw, but he continued to hit her. A.G. fell to the ground, dropping the food and spilling her drink. McGraw, wearing tennis shoes, lifted his foot and stomped on her back and ribs “like [she] was an ant or a roach.” Id. at 141. A.G.’s ribs hurt, and her mouth was bleeding.

[5] A.G. tried to leave the home through the front door, but McGraw blocked the door with his body. She tried to leave through the back door, but McGraw grabbed her and told her she was “going to die [that day] in the house[.]” Id. at 143. A.G. became afraid. Both the rifle and the handgun were visible during the attack. McGraw again accused A.G. of not caring about his feelings and told her that she “wasn't leaving [her home] until his ride got there.” Id. at 144.

[6] Eventually, A.G. was able to escape from McGraw. She drove herself to a local hospital, where she was examined by hospital staff. A.G.’s teeth were “bulged out[,]” her “bones all across the top of [her] mouth were broken[,]” and she was “bleeding everywhere.” Id. at 145. On a scale of one to ten, A.G. described her pain level as “100.” Id. at 146. Hospital staff called the police.

[7] Indianapolis Metropolitan Police Department (IMPD) Officer Donald Fague was dispatched to the hospital. He interviewed A.G. and observed that she had been crying and had “some disfigurement” to her face; her “front teeth were loose”; and she had “some cracking around her lips.” Id. at 122. A.G. told Officer Fague and hospital staff that McGraw had attacked her. Officer Fague contacted IMPD Officer Patrick Lunte, a patrol officer and evidence technician, who photographed A.G.’s injuries.

[8] A.G. underwent surgery on September 7 to repair and “put ․ back in place” her fractured facial bones. Id. at 147. A.G. described the surgery as follows: [t]hey put me to sleep[,] ․ cut all of my gum open[,] inserted metal and intertwined it together to stay put[,] and I had to wear it for six weeks.” Id. A.G. could eat only soft foods during that time, and she had difficulty speaking. She attended several follow-up medical appointments after the surgery.

[9] On September 21 or 22, McGraw left a voicemail message on A.G.’s cell phone. He referred to her multiple times as a “b***h” and a “hoe” and stated, “that's why you'll be like your dead [ ] brother”; “you know I'm comin’ ”; and “ya'll ain't safe no more[.]” Ex. Vol. 1 at 28. When McGraw left the voicemail message, he had not yet been arrested for the September 4 attack.

[10] On October 25, 2022, the State charged McGraw with level 5 felony domestic battery resulting in serious bodily injury, level 6 felony intimidation, and level 6 felony criminal confinement. A one-day jury trial was scheduled to begin on October 17, 2023. Before his trial began, McGraw filed a motion in limine, seeking to prevent the State from introducing into evidence the voicemail message he had left for A.G. on grounds that the voicemail was “highly prejudicial[,]” included “other wrong acts that [were not] charged[,]” and was “not relevant to whether ․ [McGraw] committed the intimidation [offense] on the day that he [was] charged” with the offense because the voicemail was left weeks after the September 4 attack occurred. Tr. Vol. 3 at 8. The State argued that the voicemail was relevant to show McGraw's “consciousness of guilt[.]” Id. The trial court denied the motion in limine.

[11] McGraw's jury trial commenced on October 17. His theory of the case was that he and A.G. were involved in a “broken relationship” and that A.G. fabricated the attack because she “wanted [McGraw] out of [her] home.” Id. at 184. During the trial, the State moved to introduce McGraw's voicemail message into evidence, and McGraw objected, incorporating the same arguments he had made in his motion in limine. He further argued that the voicemail would confuse the jury because it had been left for A.G. after the alleged intimidation occurred. The trial court overruled the objection and offered to admonish the jury. Before publishing the voicemail, the trial court gave its admonishment, telling the jury that “[the voicemail] is not to be considered ․ for any of the charges that are listed [for] September 4th.” Id. at 151. The court asked McGraw's counsel if she “want[ed] any further admonishment[,]” and counsel replied, “No, Judge.” Id. at 152.¹

[12] During deliberations, the jury asked to hear the voicemail message again and at a reduced playback speed. In response, the trial court played the recording twice more for the jury. The court again admonished the jury, stating that “the voice mail can be considered, but it cannot satisfy the elements as charged on September 4th in Count II[, intimidation].” Id. at 197. The jury found McGraw guilty as charged.

[13] McGraw's sentencing hearing was held on December 11, 2023. At that time, McGraw had four criminal cases pending, including the instant case. The trial court heard sentencing arguments for three of the four cases at the December 11, 2023 hearing but issued separate sentencing orders for each of the cases. At sentencing, the State read into the record A.G.’s victim impact statement, in which she stated that “[t]his situation has broken me. Made me lose all sense of security. Made me close myself off from others, including my family ․ I want to feel safe again. I want my life back. I wish this was all a dream. I can't wait until the day I can quit looking over my shoulder.” Tr. Vol. 4 at 14-15.

[14] McGraw was born in May 1994 and was twenty-nine years old at the time of his sentencing. His presentence investigation report (PSI) showed that between the ages of eight and sixteen, he had been adjudicated a juvenile delinquent for battery resulting in bodily injury, disorderly conduct, and intimidation. The PSI further showed that his adult criminal history began when he was seventeen. At age eighteen, he was convicted of two counts of felony robbery and sentenced to ten years executed in the Indiana Department of Correction (DOC). While incarcerated, he committed forty-five prison conduct violations for incidents that included fighting, battery against an officer, and disruptive/disorderly behavior. McGraw was arrested at least five times as an adult. Approximately thirty days after committing the instant offenses, McGraw attacked another woman who was the mother of his child.

[15] McGraw had filed a sentencing memorandum with the court that had been prepared by a social worker. During the sentencing hearing, McGraw asked the court to consider the mitigating circumstances advanced in the memorandum, specifically that he was the oldest of sixteen children, had been raised in a crime-ridden neighborhood, and had experienced financial insecurity, violence, neglect, and parental incarceration. McGraw also argued as mitigating circumstances that when he was seven years old, his mother was arrested for attempted murder and ultimately convicted of pointing a firearm. McGraw was removed from his mother's home, placed first in an emergency shelter, and later placed with his grandmother. At eight years old, McGraw was detained in a juvenile detention center for an incident that involved him hitting another child.

[16] McGraw further argued that the trial court should consider as additional mitigating circumstances that at sixteen years old, he had been shot four times; his mother threatened to kill him in an attempt to prevent him from identifying the shooter; and incarceration would place an undue hardship on his four children, who at the time of sentencing were between the ages of two and thirteen years old. Evidence was presented indicating that McGraw was helping the mother of his child raise her three children. McGraw attacked the mother of his child approximately thirty days after he attacked A.G. McGraw presented a statement of allocution, asking the court for “rehabilitation, counseling, and therapy ․ so [he could] support [his] family and become the role model citizen[.]” Id. at 41.

[17] The trial court found that McGraw had a “ton of aggravators[,]” telling him,

You beat people up when you are mad. You have gotten in fights in the jail. You were just off [pretrial release]. You had a case pending when you decided to beat [another woman who is] the mother of your child[ ] ․ I mean, ․ it's disturbing how many people you have beaten up in your life.

Id. at 41-42. Regarding the aggravating circumstances, the court explained:

[Y]ou hit [A.G.] so hard, her teeth were knocked out of her face, and [she] had to go back in[ ] and have surgery. Then you leave her a message telling her that she's going to be dead like her brother․ That this is a person that was in a relationship with you that had trusted you[, and] you were on pretrial release when this happened.

Id. at 51. Regarding mitigating circumstances, the trial court found that McGraw was “seeking treatment, and help, which you need. I'm taking that into account.” Id. at 42. The court also found that McGraw had a “traumatic upbringing” at a “very young age.” Id. at 38.

[18] The court found that the aggravating circumstances outweighed the mitigating circumstances and sentenced McGraw to a six-year term of imprisonment, with five years executed in the DOC and one year served on home detention. The trial court also included orders for participation in “domestic violence classes” and mental health and substance abuse treatment, and the court stated that it would consider a sentence modification after four years if McGraw had no prison conduct violations while incarcerated in the DOC. Id. at 51. This appeal ensued. Additional facts will be provided as necessary.

Discussion and Decision

Section 1 – The trial court did not abuse its discretion by admitting McGraw's voicemail message at trial.

[19] McGraw contends that the trial court abused its discretion by admitting into evidence the voicemail message that he left for A.G. The admission and exclusion of evidence rests within the sound discretion of the trial court. Griffith v. State, 31 N.E.3d 965, 969 (Ind. 2015). An abuse of discretion occurs where the trial court's decision is clearly against the logic and effect of the facts and circumstances presented. Barnhart v. State, 15 N.E.3d 138, 143 (Ind. Ct. App. 2014). The trial court's ruling will be sustained on any reasonable basis apparent in the record, whether or not relied on by the parties or the trial court. Washburn v. State, 121 N.E.3d 657, 661 (Ind. Ct. App. 2019) (citing Jeter v. State, 888 N.E.2d 1257, 1267 (Ind. 2008), cert. denied), trans. denied.

[20] McGraw asserts that the voicemail should not have been admitted for three reasons: (1) it was irrelevant under Indiana Rule of Evidence 402, (2) even if the evidence was relevant, it was unduly prejudicial under Indiana Rule of Evidence 403, and (3) it was inadmissible under Indiana Evidence Rule 404(b) because it amounted to improper character evidence. Specifically, McGraw argues that the admission of the voicemail message violated those rules respectively because the voicemail (1) did not show “consciousness of guilt[,]” (2) was left two weeks after the charged offenses occurred and confused the issues, and (3) was “only relevan[t]” to his propensity to commit the crime of intimidation. Appellant's Br. at 15, 19. McGraw also argues that the court's alleged error in admitting the evidence was not harmless.

[21] Indiana Evidence Rule 402 provides that “irrelevant evidence is not admissible.” Indiana Evidence Rule 403 provides that the court may “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence.” “Unfair prejudice looks to the capacity of the evidence to persuade by illegitimate means, or the tendency of the evidence to suggest decision on an improper basis.” Hall v. State, 177 N.E.3d 1183, 1193 (Ind. 2021) (quoting Camm v. State, 908 N.E.2d 215, 224 (Ind. 2009)). “All evidence that is relevant to a criminal prosecution is inherently prejudicial, and thus the Evidence Rule 403 inquiry boils down to a balance of the probative value of the proffered evidence against the likely unfair prejudicial value of that evidence.” Hendricks v. State, 162 N.E.3d 1123, 1134 (Ind. Ct. App. 2021) (quoting Duvall v. State, 978 N.E.2d 417, 428 (Ind. Ct. App. 2012), trans. denied 2013), trans. denied.

[22] Indiana Evidence Rule 404(b) provides that “[e]vidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith,” though it may be introduced for other purposes. When reviewing the admissibility of evidence under Rule 404(b), the trial court must determine whether the prior conduct is relevant to a matter other than the defendant's propensity to commit the charged act and balance the probative value of that evidence with its prejudicial effect under Rule 403. Edwards v. State, 862 N.E.2d 1254, 1261 (Ind. Ct. App. 2007), trans. denied.

[23] Here, we cannot say that the trial court abused its discretion when it admitted the voicemail message into evidence. In that voicemail, McGraw threatened A.G., telling her, “that's why you'll be like your dead [ ] brother”; “you know I'm comin’ ”; and “ya'll ain't safe no more[.]” Ex. Vol. 1 at 28. This evidence tended to show McGraw's consciousness of guilt, which made it relevant. See, e.g., Robinson v. State, 720 N.E.2d 1269, 1272 (Ind. Ct. App. 1999) (holding that Robinson's attempts to intimidate police officer with his purported status in community could reasonably be interpreted by jury as evidence of his consciousness of guilt). In this context, we also conclude that such evidence does not run afoul of Evidence Rule 404(b), as the evidence was relevant to a matter other than McGraw's propensity to commit the charged offenses.

[24] Concerning the balancing required under Evidence Rule 403, there was no doubt that the voicemail message was inherently prejudicial. However, trial courts are given wide latitude in weighing the probative value of evidence against the prejudice caused by its admission, Bishop v. State, 40 N.E.3d 935, 952 (Ind. Ct. App. 2015), trans. denied, and McGraw has not convinced us that the trial court abused its discretion in this regard. The trial court allowed the State to present the voicemail message to the jury. However, once during trial and again during deliberations, the trial court admonished the jury that the evidence could not be considered to establish that McGraw committed any of the offenses that stemmed from the September 4 incident. Such instructions minimize the potential prejudice to the defendant. See, e.g., Johnson v. State, 722 N.E.2d 382, 385 (Ind. Ct. App. 2000) (finding that evidence of Johnson's prior misconduct was probative but noting that any potential prejudice to Johnson was minimized by trial court's admonishment of jury). Accordingly, the trial court did not abuse its discretion when it admitted McGraw's voicemail message into evidence.

Section 2 – The trial court did not demonstrate bias against McGraw during sentencing or commit fundamental error.

[25] McGraw also contends that the trial court demonstrated bias against him during sentencing. He focuses our attention on what he characterizes as the “frequent interruptions” and “pointed commentary” that the court made during his counsel's sentencing argument; the court's “sometimes accusatory tone”; the court's remarks regarding McGraw's behavior that included, “[b]ut he is beating people up to a pulp[,]” “I'm talking about since every time he's been in the jail[,] ․ [h]e has the worst conduct writeup in [the] Marion County Jail that I have seen in a long time[,]” and “[i]t seems like whenever he gets mad, he hits somebody”; and the court's remark that McGraw was unlikely to commit the instant offenses again “[i]f he doesn't have another girlfriend[.]” Appellant's Br. at 14, 26; Tr. Vol. 4 at 25, 32, 37. McGraw argues that, by contrast, the trial court mostly allowed the State to present its argument at sentencing “unimpeded, only interrupting four times.” Appellant's Br. at 27. McGraw asks that we remand this case so that a different judge can sentence him.

[26] Judges require broad latitude to run their courtrooms and to maintain discipline and control. Brown v. State, 746 N.E.2d 63, 70-71 (Ind. 2001).

Merely asserting bias and prejudice does not make it so. The law presumes that a judge is unbiased and unprejudiced. And to rebut that presumption, a defendant must establish from the judge's conduct actual bias or prejudice that places the defendant in jeopardy. Such bias and prejudice exists only where there is an undisputed claim or where the judge expressed an opinion of the controversy over which the judge was presiding.

Smith v. State, 770 N.E.2d 818, 823-24 (Ind. 2002) (internal citations omitted.)

[27] Furthermore, intemperate comments may not necessarily demonstrate bias. As the United States Supreme Court has stated:

[O]pinions formed by the judge on the basis of facts introduced or events occurring in the course of the current proceedings, or of prior proceedings, do not constitute a basis for a bias or partiality motion unless they display a deep-seated favoritism or antagonism that would make fair judgment impossible. Thus, judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.

Liteky v. U.S., 510 U.S. 540, 555 (1994).

[28] McGraw concedes that he did not object to any of the trial court's remarks or actions on grounds of bias. Where a defendant fails to object to comments a trial judge makes during trial, the issue of bias is waived for review. Flowers v. State, 738 N.E.2d 1051, 1061 (Ind. 2000). An appellant who seeks to overcome waiver must demonstrate fundamental error, which is a blatant error that denies the defendant due process. O'Neal v. State, 716 N.E.2d 82, 87 (Ind. Ct. App. 1999), trans. denied (2000). If a judge is biased, fundamental error exists because trial before an impartial judge is an essential element of due process. Rosendaul v. State, 864 N.E.2d 1110, 1115 (Ind. Ct. App. 2007), trans. denied.

[29] Here, we conclude that McGraw has failed to establish that the trial court demonstrated bias against him at sentencing or committed fundamental error. We note that the court interrupted both parties’ counsel. However, we also note that many of the court's remarks were based on the evidence that was presented at trial and during sentencing. Accordingly, we are unpersuaded that the court's actions or demeanor strayed from objectivity and impartiality.

Section 3 – The trial court did not abuse its discretion during sentencing.

[30] McGraw asserts that the trial court abused its discretion during sentencing by considering allegedly improper aggravating circumstances and failing to consider certain mitigating circumstances. Indiana Code Section 35-50-2-6(b) provides that a “person who commits a Level 5 felony ․ shall be imprisoned for a fixed term of between one (1) and six (6) years, with the advisory sentence being three (3) years.” Indiana Code Section 35-50-2-7(b) provides that a “person who commits a Level 6 felony ․ shall be imprisoned for a fixed term of between six (6) months and two and one-half (2 1/212) years, with the advisory sentence being one (1) year.” In sentencing McGraw to six years for the level 5 felony domestic battery resulting in serious bodily injury conviction and one year each for the level 6 felony intimidation and criminal confinement convictions, with the sentences to run concurrently, the trial court deviated from the advisory sentence for a level 5 felony and imposed the maximum sentence permitted by statute.

[31] Sentencing decisions rest within the sound discretion of the trial court. Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007), clarified on reh'g, 875 N.E.2d 218. As long as a defendant's sentence is within the statutory range, it is subject to review only for an abuse of discretion. Id. 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 drawn therefrom. Id. A trial court may abuse its discretion by failing to enter a sentencing statement, identifying aggravators and mitigators that are unsupported by the record, omitting reasons from the sentencing statement that are clearly supported by the record, or entering reasons in the sentencing statement that are improper as a matter of law. Id. at 490-91. “In cases where the trial court has abused its discretion, we will remand for resentencing only ‘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.’ ” Bryant v. State, 959 N.E.2d 315, 322 (Ind. Ct. App. 2011) (quoting Anglemyer, 868 N.E.2d at 491).

Section 3.1 – The trial court did not abuse its discretion by considering the severity of A.G.’s injuries and McGraw's voicemail message as aggravating circumstances to support McGraw's enhanced sentence.

[32] McGraw contends that the trial court abused its discretion when it sentenced him for the level 5 felony domestic battery offense because it used a material element of the offense as an aggravating factor to enhance his sentence. Under Indiana's domestic battery statute, “a person who knowingly or intentionally ․ touches a family or household member in a rude, insolent, or angry manner” commits domestic battery. Ind. Code § 35-42-2-1.3(a)(1). The offense is elevated to a level 5 felony if the “offense results in serious bodily injury to a family or household member.” Ind. Code § 35-42-2-1.3(c)(1) (emphasis added). Indiana Code Section 35-31.5-2-292 defines serious bodily injury as “bodily injury that creates a substantial risk of death or that causes: (1) serious permanent disfigurement; (2) unconsciousness; (3) extreme pain; (4) permanent or protracted loss or impairment of the function of a bodily member or organ; or (5) loss of a fetus.”

[33] According to McGraw, the trial court erred “when it considered the severity of [A.G.’s] injury ․ as an aggravating factor” because the “injuries that [she] suffered were not greater than those required to establish serious bodily injury.” Appellant's Br. at 30, 32. McGraw is correct that, “[w]here a trial court's reason for imposing a sentence greater than the advisory sentence includes material elements of the offense, absent something unique about the circumstances that would justify deviating from the advisory sentence, that reason is ‘improper as a matter of law.’ ” Gomilla v. State, 13 N.E.3d 846, 852-53 (Ind. 2014) (quoting Anglemyer, 868 N.E.2d at 491). However, “even when serious bodily injury is an element of the crime charged, the severity of the injury may serve as a valid aggravating circumstance.” Patterson v. State, 846 N.E.2d 723, 731 (Ind. Ct. App. 2006).

[34] Here, the record established that A.G. was the victim of a brutal beating that resulted in major injuries to her mouth. McGraw fractured the bones across the top of A.G.’s mouth and caused her teeth to bulge. A.G. needed surgery to repair the bone fractures, which required the insertion of metal and wires that remained in place for six weeks. She had to attend several follow-up medical appointments after the surgery, she could eat only soft foods during that time, and she had difficulty speaking. In its sentencing statement, the trial court found that the “harm or injury or loss and damage was significant.” Tr. Vol. 4 at 51. The court explained: “You beat [A.G.] up. You put her in the hospital. And you threatened to kill her․ [Y]ou hit [A.G.] so hard, her teeth were knocked out of her face, and [she] had to go back in[ ] and have surgery.” Id. at 50-51.

[35] Given the severity of A.G.’s injuries, we conclude that the harm she suffered was greater than that necessary to prove the commission of the offense. See, e.g., Settles v. State, 791 N.E.2d 812, 814-15 (Ind. Ct. App. 2003) (holding that facts evidencing particular brutality of attack may be considered as aggravating circumstance when sentencing defendant for aggravated battery and concluding that trial court did not improperly consider severity of victim's injuries as aggravator). Therefore, McGraw has failed to establish that the trial court abused its discretion in considering the severity of A.G.’s injuries as an aggravating circumstance to support his enhanced sentence.

[36] McGraw also argues that the trial court erred by considering the voicemail message that he left for A.G. as an aggravating circumstance to support his enhanced sentence. According to McGraw, “Indiana law offers no basis for considering the voicemail to be an aggravator.” Appellant's Br. at 32. However, Indiana Code Section 35-38-1-7.1(a)(10) (2019) explicitly authorizes a court to consider as an aggravating circumstance that the defendant “threatened to harm the victim of the offense or a witness if the victim or witness told anyone about the offense.” McGraw's voicemail message did just that. Therefore, we conclude that the trial court did not abuse its discretion by considering the voicemail message as an aggravating circumstance.

[37] Furthermore, even if we were to find that the trial court improperly considered the severity of A.G.’s injuries and the voicemail message as aggravating circumstances, and we do not, other valid aggravating circumstances exist, and it is well settled that a single aggravating circumstance may be sufficient to enhance a sentence. Buford v. State, 139 N.E.3d 1074, 1081 (Ind. Ct. App. 2019). Here, the trial court identified other valid aggravating circumstances, including McGraw's criminal history, consisting of juvenile adjudications and two felony convictions, and the fact that McGraw was on pretrial release when he committed the instant offenses.

Section 3.2 – The trial court considered McGraw's proffered mitigating circumstances and thus did not abuse its discretion during sentencing.

[38] McGraw also contends that the trial court abused its discretion by failing to consider as mitigating circumstances “his troubled childhood” and the “undue hardship” that incarceration would impose on “the children that he financially and emotionally supports.” Appellant's Br. at 33. However, the trial court considered McGraw's difficult childhood when it sentenced him. The court found that McGraw had a “traumatic upbringing” at a “very young age[,]” and the court stated, “I do find that he ․ would qualify for PTSD, and that's a mitigator.” Tr. Vol. 4 at 38, 44. Likewise, the court also considered the hardship incarceration would impose on the children that McGraw supports, stating, “I take that into account.” Id. at 42. Thus, we cannot conclude that the trial court abused its discretion during sentencing in this regard. Based on the foregoing, we affirm McGraw's convictions and the sentence imposed by the trial court.

[39] Affirmed.

FOOTNOTES

1.   The voicemail was difficult to understand, so after the trial court overruled McGraw's objection to its admission, McGraw and the State agreed to submit a transcript of the voicemail to the jury. The trial court instructed the jury that the transcript was to be used as an aid and that if the jury “hear[d] a discrepancy, it's what you hear is what the evidence is, not what is on the piece of paper.” Tr. Vol. 3 at 152.

Crone, Judge.

Bradford, J., and Tavitas, J., concur.