Aaron A. Whitman, Appellant-Defendant v. State of Indiana, Appellee-Plaintiff (2025)

MEMORANDUM DECISION

[1] Aaron A. Whitman (“Whitman”) appeals his convictions and aggregate sentence for two counts of Level 3 felony attempted aggravated battery,¹ Level 4 felony unlawful possession of a firearm by a serious violent felon,² Level 5 felony domestic battery resulting in serious bodily injury,³ and Level 6 felony resisting law enforcement.⁴ We restate the appellate issues as follows:

I. Whether the trial court erred in denying Whitman's motion to sever offenses from the charging information;

II. Whether the trial court abused its discretion in admitting evidence under Evidence Rule 404(b); and

III. Whether the trial court erred in sentencing Whitman for the two counts of aggravated battery because—as Whitman and the State agree—the aggregate length of those consecutive sentences exceeded a statutory limit.

[2] We affirm Whitman's convictions but reverse and remand solely for resentencing on the two counts of Level 3 felony attempted aggravated battery.

Facts and Procedural History

[3] Whitman and Brooke Drennin (“Drennin”) dated off and on in high school until they graduated in 2006. The two reconnected on the internet in the fall of 2020, by which point Drennin was divorced with two young children. Shortly thereafter, Drennin and her children moved into Whitman's residence. After several months, Whitman's behavior toward Drennin began to change, with Whitman becoming increasingly hostile and controlling. While playing “hide and seek” with the children, Whitman suddenly tackled Drennin and knocked her to the floor, frightening her. In the spring of 2021, Whitman became angry because he wanted to go mushroom hunting and thought Drennin was taking too long to get ready. Whitman threw shoes outside and slammed Drennin down in front of her children, causing her head to bleed. Drennin characterized that point in their relationship as “kind of like a Jekyll and Hyde situation” in that Whitman could be “really sweet and then ․ not so sweet.” Tr. Vol. 4 p. 68. In addition to being violent with Drennin, Whitman was “very verbally abusive” and jealous, “[c]alling [her] a whore and all kinds of things.” Id. at 69.

[4] In the summer of 2021, Whitman and Drennin began working for the same employer, but in separate work areas. Whitman became convinced Drennin was having an affair with her group leader and frequently confronted her at work, accusing her of infidelity. Whitman's visits to Drennin's work area became so frequent that Drennin's coworkers would warn her of his approach by saying “snake in the weeds” so Drennin could move away from male coworkers. Id. at 73–78. Drennin and Whitman regularly carpooled together and, on the way home, Whitman would hit Drennin—sometimes in the face—due to his suspicions of infidelity. At one point, Whitman pulled Drennin's hair because Whitman had to wait for Drennin to finish a shift. There was also an argument in the kitchen where Whitman poured a pot of spaghetti onto Drennin's head in front of her children, who called their grandfather for help.

[5] In the fall of 2022, Drennin and her children moved out of Whitman's residence, moving into an apartment in Elkhart. At that time, Drennin maintained regular contact with Whitman and sometimes cared for his son. Drennin maintained contact with Whitman in part because Whitman “would apologize and things would be okay for a couple days and then it would go back to the same situation.” Id. at 89. As Drennin recounted: “[T]he highs were highs and the lows were really low and [she] loved him.” Id. at 88–89.

[6] On December 12, 2022, at approximately 9:00 p.m., Whitman came to Drennin's apartment while her children were in bed. Upon entering, Whitman went to Drennin's bedroom, where he immediately slapped Drennin in the face, causing her nose to bleed. Whitman then grabbed Drennin's shoulders, pushed her into a walk-in closet, threw her to the floor, and wrapped a belt around her throat. Whitman kept saying: “I told you [that] you [were not] going to like this.” Id. at 91. When Drennin began to scream, Whitman shoved a sock in her mouth. Whitman pulled the belt tight with both hands, causing Drennin to lose consciousness. When Drennin regained consciousness, she found herself covered in blood that had dripped from her tongue. Whitman was wiping her face with a rag. The next day, Drennin experienced severe pain with swelling in her mouth and broken blood vessels on her face and in her eyes. Drennin did not report the incident to law enforcement because she was afraid of Whitman.

[7] In early 2023, Whitman and Drennin were drinking beer at her apartment. Drennin decided to take a shower. Drennin started to take her beer with her, but Whitman told her to leave the beer on the counter. While Drennin was showering, Whitman brought the beer to her. The beer was foamy, and after drinking it, Drennin immediately began feeling strange. She found blue powder resembling a crushed pill on the counter. Drennin's condition worsened, which prompted her to call 911. Drennin was soon transported to the hospital, where she spent several hours. Drennin later confronted Whitman, who claimed he had not tried to kill Drennin but wanted to “see if that's what [her] friends gave [her] on New Year[’]s Eve.” Id. at 87–88. Around this time, Drennin and Whitman ended their relationship, but still communicated with one another.

[8] On February 20, 2023, Whitman sent Drennin angry text messages throughout the day, repeatedly accusing her of being with other men. Drennin responded to these messages because she was afraid Whitman would “lash[ ] out” if she ignored him. Id. at 126. In her responses, Drennin tried to “calm him down.” Id. at 107. In the evening, Drennin went to dinner with her father. Whitman accused her of going on a dinner date, which prompted Drennin to send him a screenshot of text messages in which she made plans with her father. She also sent a picture of her father's friends at the table. In response, Whitman sent videos of him exercising. Around that time, Drennin had started dating other people and had invited Derek Comer (“Comer”) to her apartment that evening. Drennin returned to her apartment around 8:00 p.m. When Comer arrived, the two watched television together on the couch. As they did so, Whitman sent text messages to Drennin, who was not responding. Whitman then called Drennin, who did not answer the phone. At 8:58 p.m., Whitman sent Drennin a text message indicating he thought Drennin was with a person named Larnell.

[9] Minutes later, Drennin and Comer heard someone banging on the sliding glass door by the couch. A voice was yelling, “[A]re you fucking my bitch[?]” Id. at 138. Drennin recognized the voice as Whitman's. Seconds later, Whitman fired several shots into the apartment, shattering the glass door. Pieces of glass struck Drennin and Comer, who took cover near the front entry. After Whitman fired the shots, Whitman left and Drennin called 911. Drennin later found her cat alive but covered in blood, with a bullet lodged in his shoulder. Outside the sliding door, officers found six shell casings from a 9mm weapon.

[10] After the shooting, law enforcement attempted to locate Whitman's truck, which had a vanity plate reading “U2CL0SE.” Ex. Vol. 6 p. 102. Corporal Brian Davis from the Elkhart City Police Department (“Corporal Davis”) was the first to locate the truck. He began following Whitman and awaited backup. When backup arrived, Corporal Davis activated the emergency lights in his police vehicle and attempted to conduct a traffic stop. Whitman fled, leading police on a high-speed chase into Cass County, Michigan, approaching speeds of 115 miles per hour. Law enforcement eventually immobilized Whitman's truck with stop sticks, at which point Whitman abandoned the truck and ran into a heavily wooded area that was “swampy” and frozen over, with “a lot of thickets” and “a lot of bramble.” Tr. Vol. 3 p. 178. Law enforcement set up a perimeter and deployed a K9 unit to locate Whitman, but the K9's efforts were impeded when several thorns became lodged in her mouth. Meanwhile, the local fire department was dispatched to help find Whitman. Firefighter Chris Bergen, who was also a Reserve Deputy with the Cass County Sheriff's Office (“Deputy Bergen”), assisted law enforcement by deploying a fire department drone that was equipped with a thermal camera. When Deputy Bergen spotted Whitman with the drone, he relayed Whitman's location to officers entering the woods. When officers reached the area, they had difficulty finding Whitman, who had “embedded himself” in an “immense section of thorn bushes” and “was ignoring all verbal commands for a period of time.” Id. at 159. Before long, an officer spotted an article of clothing in the thicket. Whitman continued to ignore commands to show his hands, stand up, and walk toward the officers. Eventually, Whitman stood up and was arrested. The entire pursuit lasted about thirty minutes. During an ensuing investigation, law enforcement found a handgun holster inside Whitman's truck, but they never recovered a firearm.

[11] On February 21, 2023, the day after the shooting, the State charged Whitman with three counts, all of which related to the shooting at Drennin's apartment and Whitman's ensuing attempt to evade the police. Those counts were Level 4 felony unlawful possession of a firearm by a serious violent felon, Level 5 felony criminal recklessness, and Level 6 felony resisting law enforcement. The following month, the State was permitted to amend the charging information. The State added two counts of Level 3 felony attempted aggravated battery, which were also related to the shooting; one count identified Drennin as a victim, the other count identified Comer. There were also two counts related to the violence at Drennin's apartment in December 2022, when Whitman pushed Drennin into a closet and cinched a belt around her throat. As to that episode of violence, the State brought one count of Level 5 felony domestic battery resulting in serious bodily injury and one count of Level 6 felony strangulation.

[12] A jury trial was scheduled for May 21, 2024. Meanwhile, Whitman had a change in counsel. On April 29, 2024, Whitman's new counsel appeared. On May 1, 2024, Whitman filed a motion to sever the counts of domestic battery and strangulation from the charging information, seeking separate trials for the violence in December 2022 and the violence in February 2023. Whitman also filed a motion in limine requesting that, under Evidence Rule 404(b), the State provide “reasonable notice in advance of [t]rial of the general nature of any prior misconduct evidence it intends to introduce,” noting that “[t]he State must be able to prove that the prior misconduct occurred” and the evidence might be subject to exclusion under Evidence Rule 403. Appellant's App. Vol. 2 p. 50.

[13] On May 7, 2024, the trial court held a hearing on the motion to sever, which it denied. The court also admonished the State to “provide notice if introducing 404[(b)] evidence.” Id. at 65. On May 14, 2024, the State filed a motion to dismiss the count of criminal recklessness, which the trial court granted. The next day—which was six days before trial—the State filed a notice of its intent to introduce evidence of Whitman's prior bad acts under Evidence Rule 404(b). The State listed specific episodes of Whitman's prior domestic violence against Drennin, beginning with the first violent episode in the spring of 2021, when Whitman suddenly pushed her down during a game of “hide and seek.” The State argued the evidence of Whitman's “other acts of violence and hostility against [Drennin]” were admissible under Rule 404(b) because “th[e] evidence directly point[ed] to the hostility in the relationship between [Drennin] and [Whitman]” and would “demonstrate the motive” for the violent offenses against Drennin. Id. at 70–71. On May 20, 2024, Whitman again moved to sever counts from the charging information. The trial court denied the motion.

[14] On May 21, 2024, the trial date, Whitman indicated that he wished to plead guilty to Level 6 felony resisting law enforcement. A factual basis was established, and the trial court took Whitman's guilty plea under advisement. Before a jury was impaneled, the trial court addressed the admissibility of evidence of Whitman's prior acts of domestic violence against Drennin. Whitman argued the evidence was inadmissible because (1) it was not relevant; (2) Rule 404(b) did not apply because “[t]he only reason [the evidence is] coming in is propensity, bad character”; and (3) Rule 403 required excluding the evidence because it would result in “unfair prejudice, effectively denying [him] a fair trial.” Tr. Vol. 2 p. 9. Whitman further argued that, due to the timing of the State's notice—“two or three business days before trial”—the State should not be allowed to introduce the evidence of his prior bad acts. Id.

[15] The State responded that the evidence was relevant and admissible because it established “a gradual escalation into this extremely violent offense in which the defendant opened fire into [Drennin's] small apartment through a glass door[.]” Id. at 11. As to Evidence Rule 403, the State argued the evidence was highly probative and not unduly prejudicial, asserting the evidence would be presented “to show motive,” ultimately “giv[ing] a complete narrative to the jury of exactly why we ended up in this situation and how the defendant ended up at the victim's apartment firing a gun.” Id. As to the timing of its notice to Whitman, the State asserted it filed the notice “maybe within a day” of learning of the prior bad acts, which Drennin disclosed during a pre-trial meeting. Id. at 12. The State also pointed out that Whitman's prior counsel planned to depose Drennin on May 10, 2024, but new counsel “cancel[ed] the depositions” and told the State he was “choosing not to go forward” with them. See id. at 18–21. The court noted that it was “hearing and understanding that had the deposition occurred on May 10th as scheduled that it's likely that th[e] information [in the notice] also would have been disclosed at that time.” Id. at 20-21. At that point, Whitman's counsel said: “That's irrelevant [to] my argument.” Id. at 21.

[16] The trial court preliminarily allowed the 403(b) evidence. As to Whitman's request to exclude the evidence due to the timing of the State's notice, the trial court addressed counsel and said: “By the very nature of you entering your appearance so late in this case with the trial coming up the remedy would have been to seek a continuance to allow you the opportunity to further explore these things, potentially depose the alleged victim.” Id. at 17. Counsel maintained that it was proper to exclude the evidence, later stating: “[Whitman] has been sitting in jail all this time. We're not asking for a continuance[.]” Id. at 21.

[17] A jury trial was held, with the State presenting testimony from a total of twelve witnesses. Drennin was the State's final witness, and she testified about both the December 2022 events and the February 2023 events. Before Drennin testified, the State presented evidence about the February 2023 shooting, with the State presenting testimony from Comer, neighbors in the apartment complex, responding authorities, and Drennin's father. Among the evidence were photographs depicting the layout of Drennin's apartment, the shattered patio door, the bullet casings found in the lawn beyond the patio, and the injury to Drennin's cat. The State's evidence also included text messages between Whitman and Drennin leading up to the shooting, which involved frequent profanity-laced messages in which Whitman accused Drennin of promiscuity. At trial, Drennin gave detailed testimony about the events in December 2022 and February 2023, as well as Whitman's jealous, violent conduct in the past.

[18] The jury found Whitman guilty of all counts, and Whitman's sentencing hearing was held on July 3, 2024. The trial court ultimately imposed sixteen years for each count of Level 3 felony attempted aggravated battery, twelve years for Level 4 felony unlawful possession of a firearm by a serious violent felon, six years for Level 5 felony domestic battery, two years and 180 days for Level 6 felony strangulation, and two years and 180 days for Level 6 felony resisting law enforcement. The trial court ordered the domestic battery and strangulation sentences to run concurrently with one another, but consecutive to the other sentences. The remaining sentences were consecutive sentences, which resulted in an aggregate sentence of fifty-two years and 180 days in the Indiana Department of Correction. In imposing this sentence, the court ordered Whitman's two sixteen-year sentences for Level 3 felony attempted aggravated battery to be served consecutively, resulting in a total term of thirty-two years for the single episode of criminal conduct. Whitman now appeals.

Discussion and Decision

I. Motion to Sever Offenses

[19] Whitman claims the trial court erred in denying his motion to sever the charges. Joinder of charges is controlled by Indiana Code section 35-34-1-9(a), which provides that two or more offenses may be joined in the same indictment or information when the offenses: “(1) are of the same or similar character, even if not part of a single scheme or plan; or (2) are based on the same conduct or on a series of acts connected together or constituting parts of a single scheme or plan.” Whenever charges were joined solely under subsection (a)(1)—because the offenses were of the same or similar character—“the defendant shall have a right to severance of the offenses.” Ind. Code § 35-34-1-11(a). In that scenario, the trial court “has no discretion to deny ․ a motion [to sever], and we will review its decision de novo.” Pierce v. State, 29 N.E.3d 1258, 1264 (Ind. 2015). But if the offenses were not exclusively joined under subsection (a)(1)—in other words, if subsection (a)(2) was satisfied—the trial court is not obligated to sever the offenses. Id. at 1265. Rather, severing the offenses is within the discretion of the trial court, which abuses its discretion only when its decision is clearly against the logic and effect of the facts and circumstances. Id. at 1264–65.

A. Type of Joinder

[20] On appeal, Whitman focuses on the dates of the offenses, pointing out that the charges set forth in the charging information involved the events in December 2022 and the events in February 2023. Whitman claims the only way the charges could be joined was pursuant to subsection (a)(1), and therefore, he had a right to severance. To determine whether there is a sufficient connection to support joining offenses under subsection (a)(2), “we ask whether the operative facts establish a pattern of activity beyond mere satisfaction of the statutory elements.” Id. at 1266. Thus, the Indiana Supreme Court identified a sufficient connection to support joining two counts of robbery under subsection (a)(2) when the robberies took place in the same community, two days apart, and involved victims who operated a cash register and were shot with a shotgun. See Ben-Yisrayl v. State, 690 N.E.2d 1141, 1145–46 (Ind. 1997). Our Supreme Court also affirmed the denial of a motion to sever offenses related to two attacks on the same victim, at the same location (the victim's residence), even though the attacks took place about six months apart, noting that the trial court “could correctly conclude that [the defendant] had developed a scheme or plan to attack the victim.” See Runyon v. State, 537 N.E.2d 475, 476–77 (Ind. 1989).

[21] Here, the charged offenses related to two occasions when Whitman was violent with Drennin at her apartment. Whitman focuses on the fact that the episodes of violence took place about two months apart. However, the evidence at trial reflected that Whitman's criminal conduct was part of a single, escalating pattern of violence against Drennin that was motivated by Whitman's jealousy and desire for control. Under the circumstances, which we expound upon later in our discussion of the State's 404(b) evidence, we conclude that joining the offenses was not improper under subsection (a)(2), and therefore, the trial court was not obligated to grant Whitman's motion to sever. See, e.g., id.; cf. Goodman v. State, 708 N.E.2d 901, 902–03 (Ind. Ct. App. 1999) (collecting joinder cases).

B. Discretion to Sever

[22] When severance is not mandatory, Indiana Code section 35-34-1-11(a) directs that, upon a motion to sever, the trial court “shall grant a severance” whenever it determines that “severance is appropriate to promote a fair determination of the defendant's guilt or innocence of each offense,” with the trial court to take into account “(1) the number of offenses charged; (2) the complexity of the evidence to be offered; and (3) whether the trier of fact will be able to distinguish the evidence and apply the law intelligently as to each offense.”

[23] The State defends the trial court's ruling, at one point arguing that this case did not involve an excessive number of offenses in light of Grimes v. State, 84 N.E.3d 635, 642 (Ind. Ct. App. 2017), where we affirmed the denial of a motion to sever when the defendant faced forty charges in the same charging information. We agree with the State that the charging information was not particularly lengthy in this case. As to the other factors—the complexity of the evidence involved and the jury's ability to distinguish the evidence and apply the law intelligently to each offense in the charging information—although there was relatively more evidence presented in connection with the February 2023 incident, which involved a shooting, the overall evidence was not particularly complex or confusing. Cf. id. (affirming the denial of a motion to sever, noting, “although over forty charges were filed against [the defendant], the nature of the charges and the evidence presented were not overly complex”). Under the circumstances, we conclude that denying the motion to sever was not clearly against the logic and effect of the facts and circumstances before the trial court.

II. Prior Bad Acts

[24] Whitman challenges the admissibility of evidence of his prior bad acts under Evidence Rule 404(b). In general, we review evidentiary rulings for an abuse of discretion. Hatcher v. State, 735 N.E.2d 1155, 1160 (Ind. 2000). The trial court abuses its discretion when its evidentiary ruling was clearly against the logic and effect of the facts and circumstances before the court, or when the court misinterpreted the law. J.Q.R. v. State, 252 N.E.3d 919, 924 (Ind. 2025).

[25] Evidence Rule 404(b) provides that “[e]vidence of a crime, wrong, or other act is not admissible to prove a person's character in order to show that on a particular occasion the person acted in accordance with the character,” but “may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.” For the evidence to be admissible under this rule, there must be sufficient proof to enable a factfinder to find, by a preponderance of the evidence, that the prior acts occurred. D.R.C. v. State, 908 N.E.2d 215, 224 (Ind. 2009) (discussing principles of conditional relevance under Evidence Rule 104(b)). Moreover, even if the evidence fits into a permitted purpose and there is sufficient proof that the acts occurred, Evidence Rule 403 calls for excluding any 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.”

[26] On appeal, Whitman does not cite Evidence Rule 403 and makes only stray references to the prejudicial impact of the prior bad acts. See, e.g., Appellant's Br. p. 28 (asserting that “the presentation of the Rule 404(b) evidence was not outweighed by its prejudicial impact,” which is not the balancing test set forth in Evidence Rule 403). The thrust of his claim appears limited to whether the State gave sufficient notice of its intent to introduce the evidence, whether the evidence fit within a permitted purpose, and whether Drennin's uncorroborated testimony provided sufficient support for admitting the evidence. Nonetheless, herein, we address Evidence Rule 403 along with Whitman's other arguments.

A. Notice

[27] Whitman claims the trial court should have excluded the evidence of his prior bad acts due to the timing of the State's notice. Evidence Rule 404(b)(2) states that, “[o]n request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.” In Hatcher, our Supreme Court explained that “[r]easonable notice of intent to offer evidence of other crimes, wrongs, or acts is a prerequisite for admissibility.” 735 N.E.2d at 1158. The purpose of the 404(b) notice requirement is “to reduce surprise and promote early resolution of questions of admissibility.” Id. (quoting Abdul-Musawwir v. State, 674 N.E.2d 972, 975 (Ind. Ct. App. 1996), trans. denied). Critically, “[t]he reasonableness of the State's notice is not merely a function of its relation in time to either the defendant's request for the notice or the date of trial.” Id. Rather, “[d]etermining whether ․ notice was reasonable requires an examination of whether the purpose of the notice provision was achieved in light of the circumstances of a particular case.” Id. (emphasis removed).

[28] In Hatcher, the Indiana Supreme Court concluded “the trial court was warranted in finding that the State's six-day notice was reasonable” under Rule 404(b), noting the defendant had not been surprised because the evidence was addressed, in some detail, in the State's discovery and “the six-day notice given ․ was sufficient to promote the early resolution of questions of admissibility.” Id. at 1159. As to the timeline involved, the Hatcher Court emphasized that the trial court had afforded the defendant the opportunity to present “objections and argument regarding the reasonableness of the State's notice and the admissibility of each item [of evidence] and witness” listed in the State's 404(b) notice. Id.

[29] Here, the State provided 404(b) notice of its intent to introduce evidence of Whitman's prior violence against Drennin. The State's notice described specific instances, in chronological order, when Whitman had displayed jealous, controlling behaviors or had been violent toward Drennin. For many of the events, Whitman and Drennin would have been the only witnesses. The State provided this notice six days before trial, which was approximately one day after the State learned of the evidence during a pre-trial meeting with Drennin. Thus, it was not the case, as in Hatcher, where the 404(b) evidence had already been referenced in discovery. At the same time, it was also not the case, as in Hatcher, where the State provided the defendant only six days of notice despite having known about the evidence well before providing notice.

[30] In challenging the reasonableness of the State's notice, Whitman fails to identify any specific prejudice or inability to investigate the State's 404(b) evidence. Moreover, as the State points out, Whitman makes limited argument on appeal about the notice. Notably, Whitman does not specifically identify how, under the circumstances, the purpose of the notice requirement was thwarted—especially when (1) Whitman did not request reasonable notice until May 1, 2024, within a month of the jury trial; (2) the record reflects that Whitman's new counsel cancelled a deposition of Drennin that would have taken place on May 10; (3) the State provided its notice two weeks after Whitman's request, on May 10, which was shortly after the State learned of the evidence in a pre-trial meeting; and (4) the notice provided specific details to facilitate investigating each listed incident.

[31] Although the State argues Whitman waived his claim due to a lack of cogent argument, we decline to find waiver, instead concluding it was not clearly against the logic and effect of the facts and circumstances for the court to find the State provided reasonable notice of its intent to introduce the evidence.

B. Admissibility

[32] Here, the challenged evidence concerned Whitman's prior acts of domestic violence against Drennin, who gave detailed testimony about those acts. On appeal, Whitman claims that Drennin's testimony was insufficient to establish, by a preponderance of the evidence, that the prior acts occurred. However, we readily conclude that Drennin's testimony was sufficient to meet this relatively low threshold of proof. See, e.g., Smith v. State, 163 N.E.3d 925, 929 (Ind. Ct. App. 2021) (recognizing that, even in a criminal case necessitating proof beyond a reasonable doubt, the uncorroborated testimony of the victim is generally sufficient to sustain a conviction). As our Supreme Court observed in Hicks v. State: “[H]ostility is a paradigmatic motive for committing a crime.” 690 N.E.2d 215, 222 (Ind. 1997) (quoting United States v. Russell, 971 F.2d. 1098, 1106–07 (4th Cir. 1992)). Therefore, in Hicks, our Supreme Court rejected the defendant's argument that “the evidence of prior acts of domestic violence was offered only to show that [the defendant] was of bad character and acted in conformity therewith” in committing the charged violent offense; rather, our Supreme Court agreed with the State that the evidence was admissible under Rule 404(b) to establish the defendant's motive for the violence. Id. at 222–23. (“[T]he hostility between [the defendant] and [the victim] existed from the relationship's inception ․ and continued up to the time of the [offense].”). When this court later resolved Embry v. State, we referred to Hicks and recognized that “where a relationship between parties is characterized by frequent conflict, evidence of the defendant's prior assaults and confrontations with the victim may be admitted to show the relationship between the parties and motive for committing the crime.” 923 N.E.2d 1, 9 (Ind. Ct. App. 2010) (quoting Iqbal v. State, 805 N.E.2d 401, 408 (Ind. Ct. App. 2004)), trans. denied.

[33] Here, like in Hicks, the evidence of Whitman's prior acts of violence against Drennin bore on his motive. The evidence reflected a pattern of jealousy, possessiveness, and controlling behavior that was relevant to establishing Whitman's hostility and rationale for committing the charged acts of violence, which culminated in Whitman firing bullets into Drennin's apartment while she was on the couch with another man. The evidence established a trajectory of escalating violence, beginning with an unexpected shove, building to regular physical violence in the car on the way to work, and progressing to Whitman drugging Drennin's beer such that Drennin needed emergency medical care, with Whitman attempting to minimize his dangerous conduct by indicating he was conducting an experiment on Drennin due to events on New Year's Eve.

[34] Based on the circumstances before the trial court, Whitman has not established the trial court abused its discretion in admitting the evidence under Evidence Rule 404(b). Furthermore, although Whitman does not rely on Evidence Rule 403, we cannot say the probative value of the State's 404(b) evidence was substantially outweighed by a danger of unfair prejudice, confusing the issues, misleading the jury, undue delay, or needlessly presenting cumulative evidence. Rather, as the State argued below, the 404(b) evidence was highly probative in establishing “a gradual escalation into [an] extremely violent offense in which [Whitman] opened fire into [Drennin's] small apartment,” with the evidence directly indicative of Whitman's motive for the violence. Tr. Vol. 2 p. 11; see also id. at 8 (arguing the evidence was admissible “not to show propensity but as evidence of motive” and “to explain some counterintuitive victim behavior”).

[35] For these reasons, we identify no error in the admission of the 404(b) evidence.

III. Consecutive Sentences

[36] Finally, Whitman asserts—and the State agrees—that the trial court erred in sentencing Whitman for Level 3 felony attempted aggravated battery due to a statutory cap for a single episode of criminal conduct. “So long as the sentence is within the statutory range, it is subject to review only for abuse of discretion.” Anglemyer v. State, 868 N.E.2d 482, 490 (Ind. 2007). However, “[a] sentence is facially defective if it violates express statutory authority at the time the sentence is pronounced[.]” Petiford v. State, 808 N.E.2d 134, 136 (Ind. Ct. App. 2004). As to the trial court's statutory authority, we review de novo the proper interpretation and application of a sentencing statute. Pierce, 29 N.E.3d at 1265.

[37] In a sentencing statute addressing consecutive and concurrent terms, our legislature generally limited the aggregate length of consecutive sentences a trial court may impose for felony convictions arising out of a single “episode of criminal conduct,” which refers to “offenses or a connected series of offenses that are closely related in time, place, and circumstance.” I.C. § 35-50-1-2(b). This limit does not apply to a “crime of violence” specifically enumerated in subsection (a) of the statute. I.C. § 35-50-1-2(a), (c). Although the offense of aggravated battery is listed as a “crime of violence” under subsection (a), the offense of attempted aggravated battery is not listed. See I.C. § 35-50-1-2(a) (omitting attempt offenses other than attempted murder); Ellis v. State, 736 N.E.2d 731, 737 (Ind. 2000) (holding that attempted murder was not a “crime of violence” before it was added to the statutory list).⁵ For felonies not listed in subsection (a) that arise from a single episode of criminal conduct, Indiana Code section 35-50-1-2(d)(4) provides that, when “the most serious crime for which the defendant is sentenced is a Level 3 felony,” the aggregate length of the consecutive sentences imposed “may not exceed twenty (20) years.”

[38] Here, Whitman's attempted aggravated battery convictions were Level 3 felonies that arose from the single episode when he fired multiple shots into Drennin's apartment. The trial court imposed sixteen years for each count and ordered the sentences to be served consecutively, resulting in an aggregate sentence of thirty-two years—twelve years in excess of the statutory limit. This sentencing arrangement was contrary to the statutory limitation, and the trial court's sentencing order on the attempted aggravated battery counts must be revised to comply with the twenty-year statutory limit. See, e.g., Yost v. State, 150 N.E.3d 610, 614 (Ind. Ct. App. 2020) (remanding for entry of a compliant sentencing order when the sentence imposed exceeded the statutory limit).

[39] Although we affirm the trial court in all other respects, we reverse on this issue and remand for entry of a revised sentence consistent with the statutory limit.

Conclusion

[40] The trial court did not err in declining to sever the offenses or in admitting evidence under Evidence Rule 404(b). However, because the sentence imposed in connection with the counts of attempted aggravated battery exceeded the statutory limit for a single episode of criminal conduct, we reverse that aspect of the sentencing order and remand for entry of a statutorily authorized sentence.

[41] Affirmed in part, reversed in part, and remanded.

FOOTNOTES

1.   Ind. Code § 35-42-2-1.5.

2.   I.C. § 35-47-4-5(c).

3.   I.C. § 35-42-2-1.3(a)(1).

4.   I.C. § 35-44.1-3-1(a)(3).

5.   Whitman's other offenses are listed as crimes of violence. I.C. § 35-50-1-2(a)(7) (felony domestic battery), (a)(19) (felony resisting law enforcement), (a)(2) (unlawful possession of a firearm by a serious violent felon).

Foley, Judge.

Judges Mathias and Felix concur. Mathias, J. and Felix, J., concur.