Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 1 of 34

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEY FOR APPELLANT

R. Brian Woodward

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

Justin F. Roebel

Deputy Attorney General

Indianapolis, Indiana

IN THE

COURT OF APPEALS OF INDIANA

James Hill,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff.

November 19, 2019

Court of Appeals Case No.

19A-CR-16

Appeal from the Lake Superior 

Court

The Honorable Salvador Vasquez

Trial Court Cause No.

45G01-1609-MR-4

Tavitas, Judge.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 2 of 34

Case Summary

[1] James Hill appeals his conviction and sentence for murder in perpetration of 

robbery based on several alleged procedural and sentencing errors. We affirm

in part, reverse in part, and remand for resentencing. 

Issues

[2] Hill raises several issues for our review: 

I. Whether the admission of a deceased witness’ deposition 

violated Hill’s federal and state constitutional rights. 

II. Whether the trial court erred in excluding Hill’s proffered 

evidence and denying Hill’s request for an offer of proof. 

III. Whether the trial court erred in denying Hill’s motion for 

mistrial. 

IV. Whether the State improperly solicited opinion evidence 

regarding Hill’s guilt. 

V. Whether the cumulative effect of the alleged errors 

violated Hill’s federal and state constitutional rights. 

VI. Whether Hill was properly sentenced. 

Facts

[3] The pre-trial facts, as stated in Hill’s interlocutory appeal, follow: 

In the early morning of November 14, 1980, Hammond Police 

Officer Larry Pucalik was murdered during an attempted robbery 
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at the Holiday Inn-Southeast located in Hammond, Indiana. 

Later that day, Hammond Police Detective Robert Seaman 

received an anonymous phone call from a person who stated, 

“Pierre Catlett killed your cop.”

On November 18, 1980, police arrested Hill on an unrelated 

charge. When he was arrested, Hill “made the spontaneous 

utterance ‘I know you guys think I shot that Hammond cop.’”

* * * * *

On June 22, 2012, the State charged Hill, [Larry] Mayes, and 

Catlett with Officer Pucalik’s murder.[1] On March 27, 2014, the 

charge against Hill was dismissed. 

* * * * *

On September 1, 2016, the State again [charged] Hill [ ] [with]

murder, murder in perpetration of robbery, and Class A felony 

attempted robbery. 

Hill v. State, 92 N.E.3d 1105, 1107-1109 (Ind. Ct. App. 2018), trans. denied 

(citations omitted). Hill filed a motion to dismiss2 wherein he alleged a due 

process violation from the State’s belated filing of charges. The trial court 

denied the motion to dismiss, and we affirmed on interlocutory appeal. 

1 The charge against Catlett was dismissed because he was serving another sentence; and the charge against 

Mayes was dismissed after he was deemed incompetent to stand trial. 

2 Hill filed his motion to dismiss on December 2, 2016.
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[4] Subsequently, Hill moved to suppress his March 9, 1981, statement to police in 

which he admitted that he drove the robbery getaway vehicle. At the 

suppression hearing on May 10, 2018, Raymond Myszak of the Hammond 

Police Department testified that, on March 9, 1981, Hill notified Myszak’s 

partner—Detective Dennis Williams—that Hill wanted to speak with Williams. 

Hill, who was incarcerated, met with Myszak and Williams and stated: “I 

drove the killer car.” Motion to Suppress Tr. Vol. II p. 13. When Williams 

asked what Hill meant, Hill responded: “The [car] when the policeman was 

killed at the Holiday Inn.” Id. Myszak testified that, after Hill received his 

Miranda advisement, Hill provided additional details of the crime to Williams 

and Myszak. The trial court denied Hill’s motion to suppress Myszak’s and 

Williams’ ensuing report and Hill’s admission.3

[5] Williams died in 2017. On May 14, 2018, the State moved to: (1) declare 

Williams “unavailable” as defined in the Indiana Rules of Evidence; and (2) use

Williams’ video deposition from an unrelated federal civil case at Hill’s murder

trial. Hill’s counsel responded as follows: 

In October[ ] 2010 the defendant (HILL) initiated a civil rights 

suit in federal court against the City of Hammond and several 

individual[s including] present and/or former Hammond Police 

Officers not including Dennis Williams, one of the lead 

detectives in the instant case. The suit was premised upon 

HILL’s allegation of a wrongful conviction for the offenses of 

rape, unlawful deviate conduct and robbery. During the 

3 Hill does not specifically appeal the trial court’s denial of the motion to suppress Hill’s admission.
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pendency of that civil case, on June 22, 2012, HILL was charged 

with the offense alleged in this matter in cause 45G01-1206-MR00006 which was later dismissed by the State on March 27, 2014.

Appellant’s App. Vol. III p. 52. At a motion in limine hearing on May 17, 

2018, the trial court found Williams was unavailable and determined that: (1)

the parties and interests of the parties were similar to those in the instant case;

(2) Williams was under oath during his deposition; and (3) Hill’s attorney 

conducted “significant cross-examination” during the deposition regarding 

Hill’s murder charge. Motion in Limine Tr. Vol. II p. 26. The trial court also 

deemed any issue stemming from Hill’s absence from the deposition to be

waived by Hill’s attorney’s failure to object during the deposition. 

[6] Hill’s jury trial was held from August 27 through 31, 2018. At the outset, the 

trial court heard argument on the State’s motion to quash the subpoena of 

Thomas Vanes, one of Hill’s proffered witnesses. Vanes served as a prosecuting 

attorney, prosecuted Hill in other charges, and was aware of the murder 

investigation. The trial court took the State’s motion to quash under 

advisement and deferred its ruling until the issue arose at trial. 

[7] The State called several witnesses who testified regarding the events of 

November 14, 1980, when Officer Pucalik was killed. Donald Smulsk of the 

Highland Police Department testified that he responded to the murder scene 

and learned from a witness that two black males were involved in the shooting 

and that they “fled the scene in an older model blue Chevy.” Tr. Vol. IV p. 55. 
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[8] Keith Foor, who worked at the Lake County Sheriff’s Department’s crime lab

in 1980, testified that he arrived at the Holiday Inn at 3:54 a.m. and observed a 

blue denim drawstring bag on top of the cash register. Later in the trial, three 

witnesses testified that they each observed Hill with the same blue bag at 

different times and places.4

 Investigator Ronald Gennarelli of the City of 

Hammond Police Department testified that he noticed a scrape mark on the 

curb and a hubcap by the Holiday Inn’s entrance and delivered the hubcap to 

the crime lab the day following the incident. 

[9] Officer Monte Miller from the Hammond Police Department testified that, after 

the robbery, he saw a car that matched the description of the getaway vehicle at 

a nearby apartment complex; the ignition was “popped,” which can indicate

that a vehicle is stolen. Tr. Vol. IV p. 137. When Mike Reilly of the Lake 

County Police Department processed the 1973 blue Chevrolet Impala, he 

noticed the vehicle’s missing hubcap. Foor later determined that the hubcap 

from the Holiday Inn was a likely match for the blue Impala. 

[10] In the early morning hours on November 14, 1980, while searching the vehicle, 

an officer found a piece of paper under the passenger seat. Miller testified: 

“When [the officer] pulled [the paper] out, he had noticed that it was a note 

from a person that apparently had been kidnapped and left a note in the back 

4 Officers could not identify any manufacturer that made the same bag and deemed it to be homemade. 
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seat.” Id. at 139. Hill objected and moved for a mistrial on the grounds that the 

reference to a kidnapping violated a motion in limine order. The trial court 

denied Hill’s motion for mistrial; however, the trial court gave the jury the 

following limiting instruction regarding Miller’s statement about a kidnapping: 

So jury, the last comment by the witness was something that I’m 

going to ask you to strike and ignore and it should not come into 

any consideration. It’s not part of this case as it’s a matter that is 

immaterial to what we’re dealing with here. You are to not 

consider the last comment by the witness as you move forward 

with your discussions about this case. You may continue. 

Tr. Vol. IV p. 142.5

 Miller also testified that the vehicle’s glove box was forced 

open. Officers inventoried items from the vehicle, including decorative pillows. 

[11] The State also called T.W.,

6 who met Hill two days prior to the shooting. T.W. 

testified as follows: on November 12, 1980, T.W. and a friend hitchhiked from 

Marion, Illinois, to T.W.’s mother’s house in Lake County, Indiana. T.W. and 

her friend climbed into a blue Impala with Hill and another man. During the 

night, the blue Impala got a flat tire; Hill told the passengers he would borrow 

his cousin’s car and soon returned with another blue Impala. The passengers 

got into the second blue Impala, which T.W. recalled had decorative pillows in 

the back of the vehicle. T.W. did not have a driver’s license and carried a piece 

5 Both the trial court and Hill’s counsel indicated that they did not believe the State intentionally elicited this 

statement. 

6 The State uses initials to identify T.W. For simplicity, we will do the same. 
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of paper bearing her identifying information. While T.W. was in the second 

blue Impala, T.W. put the paper under the front passenger seat. T.W. was 

subsequently dropped off near her mother’s house. 

[12] Michael Solan, Jr., of the 1980 Hammond Police Department, testified that 

three people were involved in the robbery; and that the case was reopened in 

2009 after a confidential informant provided new information. Next, Myszak 

testified as follows regarding his investigation: in 1981, Hill implicated Catlett 

and Mayes and admitted his own involvement. Hill told Myszak and Williams 

that he drove Mayes and Catlett to the Holiday Inn; that Mayes and Catlett 

went into the Holiday Inn while Hill waited outside; and that Hill drove the 

robbery getaway vehicle. Hill also told Myszak that he believed the vehicle

“struck something” as he drove away from the Holiday Inn. Id. at 14. 

[13] During the jury trial and outside the presence of the jury, Hill renewed his 

motion to exclude Williams’ deposition and placed his objection on the record. 

Portions of the deposition testimony were read to the jury with several 

redactions. The deposition testimony revealed that: (1) Williams responded to

the Holiday Inn shortly after the robbery; (2) Hill admitted to Williams and 

Myszak that Hill drove the “killer car that held up the Holiday Inn”; (3) the 

vehicle Hill drove that evening was found with a missing right front hubcap that 

matched the hubcap recovered near the Holiday Inn; (4) witnesses identified 

Hill as the owner of the blue denim bag found at the Holiday Inn; and (5) 

investigators believed the blue Impala was the robbery getaway car. Tr. Vol. 

VII p. 17. In his deposition testimony, Williams testified further that he also 
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obtained photographs of Hill and several of Hill’s classmates from Hill’s high

school; he showed the photographs to T.W. and her friend; and both women 

identified Hill as the initial driver of the second blue Impala. 

[14] After the State rested, Hill sought—over the State’s objection—to introduce 

former prosecuting attorney Vanes’ testimony to demonstrate that Vanes: (1) 

who was familiar with Hill and who worked closely with Williams, did not 

know, in 1981, that Hill confessed his involvement in Pucalik’s death; and (2) 

could not explain the State’s delay in charging Hill. The trial court excluded 

Vanes’ testimony and denied Hill’s related request to make an offer of proof. 

[15] The jury found Hill not guilty of murder and guilty of murder in the 

perpetration of robbery and attempted robbery. At Hill’s sentencing hearing on 

October 3, 2018,

7 the trial court identified two mitigating factors in its written 

order—Hill’s lack of criminal history and Hill was seventeen at the time of the 

offense. In its written order, the trial court identified the following aggravating 

factors:

The character of the defendant at the time of the offense was 

dishonest and manipulative. 

The Court finds that given the nature of the offense and the 

character of the defendant, the sentence imposed is appropriate 

7 The trial court entered judgment for murder in the perpetration of robbery but not for attempted robbery. 
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and proper. Any reduction or lessor sentence will depreciate the 

seriousness of [the] crime committed.

Appellant’s App. Vol. III p. 165. The trial court sentenced Hill to forty-seven 

years in the Department of Correction. 

[16] Hill filed a motion to correct error in which he argued, in part, that the 

aggravators used by the trial court violated Blakely v. Washington, 542 U.S. 296, 

124 S. Ct. 2531 (2004), reh’g denied. After a hearing, the trial court denied Hill’s 

motion to correct error. In its written order, the trial court found:

The aggravator noted in the Defendant’s Motion to Correct Error 

was in reference to the appropriateness of the sentence imposed 

and the Court’s finding that no lesser sentence was warranted as 

it would depreciate the seriousness of the crime committed. Our

[S]upreme [C]ourt has held that “it is not error to enhance a 

sentence based upon the aggravating circumstance that a 

sentence less than the enhanced term would depreciate the 

seriousness of the crime committed.” Mathews v. State, 849 

N.E.2d 578, 590 (Ind. 2006). 

The second significant aggravator[] used by this Court was the 

character of the Defendant. As articulated in Morgan v. State, 829 

N.E.2d 12, 17 (Ind. 20[0]5): 

“We do not see how the Sixth Amendment is implicated 

or endangered by permitting judges to use aggravators to 

enhance sentences so long as the underlying facts 

supporting the aggravator are found by a jury or admitted 

by a defendant. Put another way, Sixth Amendment 

rights are not implicated when the language of an 

aggravator is meant to describe the factual circumstances, 

not to serve as a fact itself.”
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This Court found that the Defendant’s character at the time of 

the offense was dishonest and manipulative. This determination, 

both substantial and compelling, is derived from the underlying 

facts of the case as presented to the jury.

Id. at 180-81. Hill now appeals his conviction and sentence. 

Analysis

I. Admission of the Williams Deposition

[17] Hill argues that the admission of Williams’ deposition violated Hill’s rights 

under the Confrontation Clauses set forth in the Sixth Amendment of the 

United States Constitution and Article 1, Section 13 of the Indiana 

Constitution. “‘The trial court has wide latitude in ruling on the admissibility 

of evidence in determining its relevancy.’” Williams v. State, 749 N.E.2d 1139, 

1142 (Ind. 2001) (quoting Kremer v. State, 514 N.E.2d 1068, 1073 (Ind. 1987)). 

“We review a trial court’s ruling as to relevance for an abuse of discretion.” 

Williams, 749 N.E.2d at 1142. “[E]ven if the trial court erroneously excludes 

admissible evidence, we will not reverse a defendant’s conviction unless his 

substantial rights have been affected.” Id. When, however, there is an issue of 

constitutional law, we review those claims de novo. Brittain v. State, 68 N.E.3d 

611, 617 (Ind. Ct. App. 2017), trans. denied. 

[18] Under both the federal and state constitutions, Hill argues the deposition was 

improperly admitted because the deposition was “limited in focus” to Hill’s

civil suit against the police department and several officers “seeking re-dress for 

a totally unrelated arrest and conviction.” Appellant’s Br. p. 19. According to 
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Hill, therefore, there was no “motivation to elicit facts related to the current 

charges for which Hill was convicted.” Id. at 19-20. Hill argues that, due to the 

context in which the deposition was taken, Hill’s counsel was unable to develop 

several facts on cross-examination of Williams that he otherwise would have 

developed. Finally, Hill argues that the reading of Williams’ deposition at the 

trial was not a proper hearsay exception under Indiana Rule of Evidence 804. 

[19] The State argues the evidence was properly admitted because Williams was 

unavailable, and Hill had an opportunity to confront Williams. Moreover, the 

State argues that Hill was aware, at the time of Williams’ deposition, of the 

charges filed against Hill. Specifically, the charges against Hill were initially 

filed in June 2012, and Williams’ deposition was taken in November 2012. 

Although the 2012 charges were dropped in 2014, and the State filed new 

charges against Hill in 2016, the allegations were substantially the same and 

had not been dismissed at the time of Williams’ deposition. 

[20] At the outset, we note that we have not been provided with the full copy of the 

deposition. Our record on appeal only includes the deposition as it was read to 

the jury. While it appears that the parties and the trial court discussed the entire 

deposition at several points during the trial and pre-trial motions, the full 

deposition was not made a part of our record on appeal. In other words, we do 

not have the same opportunity to review the deposition as did the trial court. 

Hill, as appellant, had the burden to present us with a complete record to 

resolve the issues he raises on appeal. See Ford v. State, 704 N.E.2d 457, 460-61 
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(Ind. 1998) (“Appellant bears the burden of presenting a record that is complete 

with respect to the issues raised on appeal.”). 

A. Sixth Amendment 

[21] First, we address Hill’s argument under the Sixth Amendment. “The Sixth 

Amendment to the United States Constitution provides that ‘in all criminal 

prosecutions the accused shall enjoy the right . . . to be confronted with the 

witnesses against him.’” State v. Owings, 622 N.E.2d 948, 950 (Ind. 1993). 

“This right of confrontation is made obligatory on the states by the Fourteenth 

Amendment.” Id. “General agreement exists that the essential purpose of the 

Sixth Amendment right of confrontation is to insure that the defendant has the 

opportunity to cross-examine the witnesses against him.” Id. 

[22] In Crawford v. Washington, the U.S. Supreme Court held that [the 

Sixth Amendment] prohibits “admission of testimonial 

statements of a witness who did not appear at trial unless he was 

unavailable to testify, and the defendant had a prior opportunity 

for cross-examination.” 541 U.S. 36, 53-54, 124 S. Ct. 1354[ ]

(2004). Though leaving “testimonial statement” undefined, the 

Court stated that the label “applies at a minimum to prior 

testimony at a preliminary hearing, before a grand jury, or at a 

former trial; and to police interrogations.” [ ]

Cardosi v. State, 128 N.E.3d 1277, 1286 (Ind. 2019) (citations omitted). 

[23] Here, it is undisputed that Williams was unavailable during Hill’s trial, and 

deposition testimony is exactly the type of “core” testimonial statement our 

Supreme Court acknowledged in Cardosi. See id. (defining “core” constitutional 
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testimony as “statements that were made under circumstances which would 

lead an objective witness reasonably to believe that the statement would be 

available for use at a later trial”). The question remains, however, under the 

Sixth Amendment, whether Hill had the opportunity for prior crossexamination of Williams. 

[24] Because we were not provided with the full deposition, we do not know: (1) 

who questioned Williams;8 (2) whether there was further discussion regarding 

the purpose of the deposition—whether for civil or criminal purposes; and (3) 

the entire context in which the questions were asked. We can only assume, as 

Hill indicated in response to the State’s request to use the deposition, that Hill’s 

civil attorney objected to the nature of the questions during the deposition. 

[25] It appears undisputed, however, that Hill’s attorney was present at the 

deposition and questioned Williams. Moreover, according to the portion of the 

deposition read at trial, it was clear to all parties that Williams’ health was 

failing and that it was vital to preserve Williams’ testimony in the civil case. 

Further, the murder charges against Hill were filed months prior to Williams’

deposition. These facts demonstrate that there was significant opportunity for 

cross-examination. See Berkman v. State, 976 N.E.2d 68, 77-78 (Ind. Ct. App. 

2012) (“At no point in Barraza’s deposition [ ] is there the slightest indication 

that Berkman was denied the opportunity to attempt to undermine Barraza or 

8 There is some indication of which attorneys questioned Williams; however, we again note our review is 

hampered by not having the full deposition.
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his testimony by asking any questions he saw fit. To the extent that Berkman 

did not do so, it was not because he was denied the opportunity.”). Hill was

not deprived of his Sixth Amendment rights to cross-examine Williams. 

B. Indiana Constitution 

[26] Next, we must analyze the additional requirements of the Indiana Constitution 

to determine whether Hill’s constitutional rights were violated by the use of 

Williams’ deposition testimony at Hill’s murder trial. Under Article 1, Section 

13 of the Indiana Constitution, a criminal defendant is guaranteed certain 

rights, including that “the accused shall have the right to meet the witnesses 

face to face.” Owings, 622 N.E.2d at 950. Our Supreme Court has 

acknowledged that the rights guaranteed by Article 1, Section 13 of the Indiana 

Constitution are not “necessarily identical” to those given by the Sixth 

Amendment. Id. 

[27] “‘The Indiana Constitution recognizes [ ] something unique and important in 

requiring the face-to-face meeting between the accused and the State’s witness 

as they give their trial testimony.’” Id. at 950-51 (quoting Brady v. State, 575 

N.E.2d 981, 987 (Ind. 1991)). “Nonetheless, neither the Sixth Amendment nor 

Article 1, Section 13 ha[s] been interpreted literally to guarantee a criminal 

defendant all rights of confrontation at every trial for every witness. Otherwise, 

no testimony of any absent witness would ever be admissible at trial.” Id. at 

951. “However, where a defendant has never had the opportunity to crossexamine a witness and meet him face to face, admission of prior testimony at a 

subsequent proceeding violates the [ ] right of confrontation.” Id. 
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[28] Moreover, “[c]riminal defendants generally have no constitutional right to 

attend depositions.” Id. This rule “is not without exception[,]” however. Id. 

“For example, admission at trial of a deposition which defendant was not 

permitted to attend, taken by the State and given by a witness unavailable for 

trial, results in the defendant never having the opportunity to confront that 

witness. Such a procedure may violate the defendant’s right to confrontation.” 

Id. at 952. Because confronting the witnesses against the accused “is an 

individual privilege relating to procedure at trial,” the privilege may be waived. 

Id. “Where there is no showing [ ] that a defendant is unable to attend a 

deposition and he makes no objection to it proceeding, the defendant waives his 

right to confrontation even if the witness is unable to testify at trial.” Id. 

[29] Finally, in Brady, 575 N.E.2d at 987, our Supreme Court held: 

The right is not absolute. It is secured where the testimony of a 

witness at a former hearing or trial on the same case is 

reproduced and admitted, where the defendant either crossexamined such witness or was afforded an opportunity to do so, 

and the witness cannot be brought to testify at trial again because 

he has died, become insane, or is permanently or indefinitely 

absent from the state and is therefore beyond the jurisdiction of 

the court[ ]. [ ] In such cases, there has been a prior face-to-face 

meeting with the opportunity to cross-examine the witness before 

a trier of fact in the same case and a necessity for the 

reproduction of testimony exists. Such an opportunity for crossexamination in a prior civil case, however, will not suffice. [ ]
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Thus, we must determine if Hill’s Indiana constitutional rights were violated 

because: (1) he did not have the opportunity to examine Williams face-to-face; 

or (2) deposition testimony was improperly used from a prior civil proceeding.

i. Face to face requirement 

[30] Regarding the face-to-face requirement, there are several unknowns because we 

do not have the entire deposition; accordingly, Hill has not met his burden on 

appeal. In its brief, the State suggests that Hill was not present9 for the 

deposition and alleges that Hill waived any issue stemming from his absence by 

his counsel’s failure to object. It is likely that Hill was not present, as the trial 

court, which had the opportunity to review the entire deposition, stated: 

I think we would have a different situation if [counsel] had not 

only [ ]object[ed] to Mr. Hill not being present at the deposition, 

but [ ] if he – he maintained that [ ] this is a civil case and all 

you’re doing is asking questions about the criminal case. 

[B]ased on the silence in the record, [ ] no objection voiced by 

[counsel] in Mr. Hill not being at [ ] the civil deposition, Mr. 

Hill’s presence is, in fact, waived. 

Motion in Limine Tr. p. 36. Accordingly, Hill has waived his right to examine

Williams face-to-face. Hill has neither presented evidence to discredit the trial 

9 We note that, in the State’s motion to admit the deposition, the prosecuting attorney represented that, at the 

time of the deposition, “the defendant was present, as was his criminal attorney. . . .” Appellant’s App. Vol. 

III p. 19. 
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court’s finding of waiver nor provided further context for the deposition. Hill 

has not demonstrated that his state constitutional rights were violated. 

ii. Deposition from prior proceeding

[31] As noted above in Brady, the opportunity to come face to face with the witness, 

as required by the Indiana Constitution, in a “prior civil case . . . will not 

suffice.” Brady, 575 N.E.2d at 987. The State argues that the civil deposition 

was not “prior” because it occurred while criminal charges were pending 

against Hill. Hill counters that, even so, Brady mandates reversal because, in a 

civil proceeding, “counsel had no reason to develop that testimony as he would 

have in the context of a [criminal] deposition[.]” Appellant’s Reply Br. p. 10. 

[32] Brady takes the “prior civil deposition” language from our Supreme Court’s 

opinion in Green v. State, 184 N.E. 183 (Ind. 1933). In Green, the defendant was

the president of a savings, loan, and trust company and was indicted for 

“receiving a deposit, knowing that the company was insolvent, whereby the 

deposit was lost to the depositor.” Green, 184 N.E. at 184. Our Supreme Court 

considered whether

the trial court erred in permitting the [S]tate to introduce in 

evidence the record of a civil proceeding wherein the [S]tate of 

Indiana, on relation of Luther F. Symons, bank commissioner of 

the [S]tate of Indiana, was petitioner, and Garrett Savings, Loan 

& Trust Company, was defendant, [ ] and wherein [ ] it was 

found that such company was in a failing and insolvent 

condition, and where a receiver was appointed for said company. 

Id. at 185-86. Our Supreme Court held: 
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One of the questions for the jury to decide [in the present 

criminal case] was the solvency or insolvency of the bank, but by 

the introduction of the records and judgment in the civil action, 

the question was already decided in that particular case, and we 

know from common experience that a jury would probably

follow the finding, on the question of solvency, as found in the 

civil action; and this being true the right to cross-examine was 

taken away from the defendant, and also his constitutional right 

to meet the witness face to face. . . .

* * * * *

The [ ] introduction of the judgment and records in the 

receivership proceeding enabled the [S]tate to put the appellant, 

although shielded by the presumption of innocence and the right 

to face the witness and cross-examine, upon the defensive as to a 

vital fact involved in the charge against him by simply producing 

the record of the receivership proceedings in a [ ] different case.

We hold that it was error to admit the proceedings and judgment 

of the civil action in evidence. 

Id. at 187. 

[33] Hill’s case is distinguishable from Green. Here: (1) the prior deposition occurred 

in a case in which Hill was also a party; and (2) Williams’ testimony did not 

settle a final issue but, rather, detailed the investigative process, including how 

the evidence supported Hill’s arrest for Pucalik’s murder. See id. at 187-88 

(“[Green] did not institute the proceeding and was not individually a party to 

the receivership action, and therefore would not be bound by the actions taken 

[ ] in a civil action when on trial as defendant in a criminal prosecution.”). 
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[34] We also agree with the State that Hill’s case is distinguishable from Brady and 

Green based on timing. Although the civil case here was filed first in time, Hill’s 

initial murder charge was pending for some time prior to Williams’ deposition. 

Moreover, the parties knew that Williams’ health was failing and that the 

deposition was necessary to preserve his testimony. Although better practice 

would have been to subpoena and depose Williams under the criminal cause 

instead of the civil cause, practically all parties had an opportunity to question 

Williams and were aware of his importance as a witness. Further, several 

deposition questions focused on the murder.

10 Thus, it appears that, although 

conducted in a separate civil cause, the deposition here covered aspects of Hill’s 

pending murder charges. The trial court did not violate Hill’s right to confront

Williams by admitting the “prior civil case” deposition; and we find no 

violation of Hill’s Indiana constitutional rights therefrom. See Brady, 575 

N.E.2d at 987. 

C. Evidence Rules 

[35] Indiana Rule of Evidence 804(b)(1)(B) states that former testimony is not 

excluded by the hearsay rule if the testimony “is now offered against a party 

who had—or, in a civil case, whose predecessor in interest had—an opportunity 

and similar motive to develop it by direct, cross-, or redirect examination.” 

10 Again, we are limited in our review by the fact that we only have the portion of the deposition read at the 

trial and are unable to locate the full deposition in the record of the instant case. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 21 of 34

[36] Hill appears to focus on the motive requirement. Based on the portion of the 

deposition read at trial, the deposition was taken to preserve Detective 

Williams’ testimony due to his ill health. Even if, as Hill argues, Hill’s attorney 

stated during the deposition that the parties should not focus on the murder 

investigation, several questions were asked regarding the murder investigation. 

Our review under Indiana’s Rules of Evidence does not warrant a finding that 

the trial court abused its discretion in admitting the evidence. 

II. Offer of Proof and Excluded Evidence

[37] Hill next argues that the trial court erred by excluding certain evidence and by

refusing Hill’s related request to make an offer of proof. Again, we review the 

exclusion of evidence for an abuse of discretion. See Williams, 749 N.E.2d at 

1142. Generally, a party has a right to make an offer of proof and “‘it is 

reversible error for a trial court to deny a party the opportunity to explain the 

substance, relevance, and admissibility of excluded evidence with an offer of 

proof.’” Harman v. State, 4 N.E.3d 209, 216 (Ind. Ct. App. 2014) (quoting Duso 

v. State, 866 N.E.2d 321, 324 (Ind. Ct. App. 2007)), trans. denied. 

[38] Offers of proof “are most beneficial when the trial court must decide whether to 

exclude proffered testimony. A valid offer to prove must explain: (1) the 

testimony’s substance; (2) the testimony’s relevance; and (3) the grounds for 

admitting the testimony.” Bedolla v. State, 123 N.E.3d 661, 666-67 (Ind. 2019). 

While beneficial to the trial court and the parties, offers of proof “are invaluable 

to reviewing courts.” Id. at 667. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 22 of 34

[39] Hill sought to introduce former deputy prosecutor Vanes’ testimony. The State 

moved to quash Vanes’ subpoena. At trial, the following colloquy ensued: 

THE COURT: So the issue would turn on what [ ] you plan 

on eliciting from Mr. Vanes. The motion on the table is that if 

it’s information that was provided that was a part of his 

prosecutorial work in the 1980s, that it’s subject to privilege. 

[HILL’S COUNSEL]: [ ] First of all, [ ] [Vanes] was a deputy 

prosecuting attorney. Well, in – certainly in 1980, it predates 

that, and was involved in the prosecution of an unrelated matter

[ ] for the next several years and was aware of the investigation 

regarding this case. [ ][Vanes] was involved with Michael Solan 

in the investigation and was involved in the prosecution of Mr. 

Hill. . . . Michael Solan . . . never disclosed the existence of 

[Hill’s] confession of March 9th, 1981, or any other time to Mr. 

Vanes. 

Second part was generated yesterday during questioning by Mr. 

Dillon of Captain Solan, I believe late in the direct examination 

of Captain Solan, possibly the redirect, but I think it was the 

direct wherein Mr. Dillon elicited testimony from Captain Solan 

[that], his delay in seeking charges against Mr. Hill, 

notwithstanding the March 9th, 1981, purported confession was 

because of his desire to develop additional evidence on the other 

two suspects. . . . I intend to establish that Mr. Vanes based on 

training and experience is an expert in criminal law and in 

criminal procedure. . . .

* * * * *

[THE STATE]: Yes. So [defense counsel] said [ ] Vanes 

worked on another case of Mr. Hill’s with Mr. Solan. That’s not 

relevant. Past prosecutions of Mr. Hill, they are not relevant in 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 23 of 34

these proceedings. So that – that portion is not relevant, and as 

far as that Mr. Solan or anybody at the Hammond Police 

Department [ ] never told Thomas Vanes about this confession, 

that fact is not in dispute. The prosecution has presented that 

through several witnesses, that it’s our – we never gave anything 

to the prosecutor. [ ] So for that purpose, the State will ask that 

his subpoena be quashed on that section. And as far as the other 

section, [ ] the decision to prosecute [ ] rests solely with the State 

of Indiana. The [ ] crimes [ ] that we choose to prosecute [are] up 

to [ ] the discretion of the State. 

Tr. Vol. VII pp. 98-100. The trial court granted the State’s motion to quash and 

did not allow Vanes to testify. 

[40] Hill’s attorney then sought to make an offer of proof regarding Vanes’

testimony, which the trial court denied, stating: 

Your request is denied. I will not allow you to make the offer of 

proof through Vanes because he has nothing to offer. [ ] For 

him to make the offer of proof to simply indicate yes, I did not 

receive anything from Solan adds nothing to our discussion as I 

see it and to put him on the stand to indicate what the role of a 

prosecutor was in the 1980s, and we do believe he was a 

prosecutor in 1980, and I speculate, without actually knowing, 

that he was one of the prosecutors involved in this unrelated case 

that we’ve been speaking of for quite some time. [ ] 

Id. at 102-03. Hill’s attorney again requested to make an offer of proof with 

Vanes’ testimony during a break, which the trial court again denied, noting that 

“[w]hat you’ve proffered through [Hill’s other attorney] is your offer of proof. 

You don’t need live testimony to preserve the record. You’ve done so by these 

two points that you want to present through Vanes.” Id. at 104. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 24 of 34

[41] Hill argues that both the exclusion of the evidence and the denial of the specific 

method of the offer of proof were error. The State responds that the evidence 

and offer of proof were properly excluded because: (1) the contact Solan and 

Vanes had related to a different criminal matter; (2) there was no evidence 

Vanes had any expertise regarding prosecutorial charging decisions due to the 

fact he had not prosecuted in many years; and (3) the testimony would include 

“confidential work product” of the prosecutor’s office. Appellee’s Br. p. 26. 

Regardless, the State argues that Hill had a sufficient offer of proof based on the 

thorough statements by Hill’s attorney. 

[42] We agree with the State on both counts. Regarding the offer of proof, the trial 

court did allow Hill to make an offer of proof for the record. Hill’s attorney 

went into significant detail regarding what Vanes would have said during his 

testimony. The trial court was not required to hear Vanes’ live testimony to restate what Hill’s attorney stated. See Harman, 4 N.E.3d at 217 (“Based on the 

record before us, we conclude that the trial court did not deny Harman the 

opportunity to make an offer to prove. Indeed, the trial court gave Harman the 

chance to explain the substance, relevance, and admissibility of the proposed 

evidence.”); see also Heckard v. State, 118 N.E.3d 823, 829 (Ind. Ct. App. 2019) 

(“To be clear, the trial court did not deny Heckard the opportunity to present an 

offer of proof; the trial court denied defense counsel’s way of presenting the 

offer of proof. . . . Enough evidence was presented for our current review, 

which is the purpose of the offer of proof.”), trans denied. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 25 of 34

[43] We also cannot say the trial court abused its discretion in excluding Vanes’

testimony. In the best case scenario, Vanes’ testimony would have been that 

Vanes, who was familiar with Hill due to other unrelated investigations, and 

knew that the murder investigation was underway, did not know (1) why it took 

so long for the State to file charges against Hill; and (2) was not aware that Hill 

confessed to driving the vehicle involved in the robbery. The trial court did not 

abuse its discretion in excluding this speculative and vague testimony. 

[44] The trial court did not abuse its discretion in denying the admission of Vanes’

testimony, and the trial court also did not err by denying Hill the opportunity to 

make an offer of proof with Vanes’ live testimony. 

III. Motion for Mistrial

[45] Hill next argues that a statement by a State’s witness warranted a mistrial. “We 

review a trial court’s denial of a mistrial for [an] abuse of discretion because the 

trial court is in ‘the best position to gauge the surrounding circumstances of an 

event and its impact on the jury.’” Pittman v. State, 885 N.E.2d 1246, 1255 (Ind. 

2008) (quoting McManus v. State, 814 N.E.2d 253, 260 (Ind. 2004), cert. denied, 

546 U.S. 831, 126 S. Ct. 53 (2005)). “A mistrial is appropriate only when the 

questioned conduct is ‘so prejudicial and inflammatory that [the defendant] was 

placed in a position of grave peril to which he should not have been subjected.’” 

Pittman, 885 N.E.2d at 1255 (quoting Mickens v. State, 742 N.E.2d 927, 929 

(Ind. 2001)). The gravity of the peril is measured by the conduct’s probable 

persuasive effect on the jury. Id. “The remedy of mistrial is ‘extreme,’ strong 

medicine that should be prescribed only when ‘no other action can be expected 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 26 of 34

to remedy the situation’ at the trial level.” Lucio v. State, 907 N.E.2d 1008, 

1010-11 (Ind. 2009) (citations omitted). 

[46] Hill identifies the offending statement, made by Miller, as follows: “Sergeant 

Rosenberg had looked under the passenger seat and spotted a piece of paper. 

When he pulled it out, he had noticed that it was a note from a person that 

apparently had been kidnapped and left a note in the back seat.” Tr. Vol. IV p. 

140.11 Hill maintains that the grave peril resulted from the “great conflict in the 

evidence” and Miller’s “highly prejudicial” testimony.

12 Appellant’s Br. p. 29. 

[47] There is no dispute that the reference to the kidnapping violated the motion in 

limine. The question, however, is whether violation of that motion in limine 

warranted a mistrial. The trial court properly considered whether the mistrial—

as an extreme option—was warranted versus a limiting instruction. The trial 

court concluded that “the error can be cured with a limiting instruction. . . .” 

Tr. Vol. IV p. 139. The trial court then instructed the jury: 

[T]he last comment by the witness was something that I’m going 

to ask you to strike and ignore and it should not come into any 

consideration. It’s not part of this case as it’s a matter that is 

11 Although the record does not include the evidence regarding a kidnapping charge, it appears that the 

statement stems from Hill giving T.W. a ride on the evening of the murder and driving with T.W. and her 

friend in the vehicle longer than T.W. intended. A kidnapping charge was not presented to the jury. 

12 Hill argues that the testimony was especially prejudicial in combination with T.W.’s testimony that: (1) she 

had the paper in her pocket because she did not have any other identification; (2) she wanted someone to be 

able to identify her body “if something were to happen” to her; and (3) she “made a conscious decision to put 

[the envelope] there[.]” Tr. Vol. V pp. 95, 97. Hill, however, did not move for a mistrial after T.W.’s 

testimony; therefore, we will only consider whether a mistrial was warranted at the time of Miller’s 

statements—when Hill asked for the mistrial. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 27 of 34

immaterial to what we’re dealing with here. You are to not 

consider the last comment by the witness as you move forward 

with your discussions about this case.” 

Id. at 142. 

[48] Hill has failed to demonstrate any prejudice other than his speculative and selfserving statement that the testimony likely impacted the jury’s impression of 

Hill. See cf Mote v. State, 775 N.E.2d 687, 691 (Ind. Ct. App. 2002) (finding 

defendant demonstrated prejudice that likely impacted the jury’s impression of 

his guilt or innocence from references to his past arrests and convictions that 

violated the motion in limine); see also Underwood v. State, 644 N.E.2d 108, 111 

(Ind. 1994) (finding defendant failed to demonstrate prejudice that likely 

impacted the jury’s impression of defendant’s guilt or innocence from testimony 

that violated the motion in limine where the trial court admonished the jury 

and there was “overwhelming evidence” of defendant’s guilt). There was 

substantial evidence outside of this testimony to convict Hill. Moreover, Hill 

did not later move for a mistrial during T.W.’s statement regarding the note. 

We presume the jury followed the limiting instruction. See Harris v. State, 824 

N.E.2d 432, 440 (Ind. Ct. App. 2005) (holding “[w]e presume that the jury 

follows the trial court’s instructions”), trans. denied. The trial court did not 

abuse its discretion by denying Hill’s motion for mistrial. 

IV. Opinion Evidence

[49] Hill argues that a statement by one of the police officers constituted improper 

opinion testimony under Article 1, Section 19 of the Indiana Constitution and 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 28 of 34

Indiana Rules of Evidence 701 and 704. Specifically, Hill alleges that the 

following statement is improper opinion testimony: “[Officers and the State] 

had substantial evidence on James Hill, a lot of evidence[].” Tr. Vol. VI p. 148. 

[50] The State contends that Hill waived the issue by his failure to object. Hill 

objected to the initial question asked by the prosecuting attorney. During 

Solan’s testimony, the following colloquy occurred: 

[THE STATE]: In your opinion, did you ever get in the 1980s 

the corroborating evidence that you wanted against all three of 

your suspects?

[HILL’S COUNSEL]: Objection. This opinion is irrelevant. 

The State has taken pains to point out that they and they alone –

and by the State, I mean the prosecution decides to file charges. 

The detective’s opinion is not relevant to these proceedings, and I 

add, I do not believe that the detective is competent to give such 

an opinion. 

[THE STATE]: Your Honor, I just elicited testimony from the 

detective, Captain Solan stated that in this case while it was the 

prosecutor’s sole discretion to file or not file charges, that it was 

his decision whether or not to take the file to the prosecutor’s 

office. 

THE COURT: Overruled. Overruled. 

[HILL’S COUNSEL]: Thank you. 

[THE STATE]: So based off of your opinion as the supervising 

detective, did you ever get the evidence that you believed you 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 29 of 34

needed to corroborate all three suspects so that you would bring 

it down to the prosecutor’s office?

A: We did not have enough evidence on Larry Mayes. We did 

not have enough evidence at the time on Pierre Catlett. We had 

substantial evidence on James Hill, a lot of evidence. 

Tr. Vol. VI pp. 147-48. We will address Hill’s argument on the merits. As 

noted above, we review the admission of evidence for an abuse of discretion. 

[51] In Williams, our Supreme Court stated:

Our evidence rules allow witnesses to testify to their opinion of 

the facts and circumstances if the opinion is ‘(a) rationally based 

on the witness’s perception; and (b) helpful to a clear 

understanding of the witness’s testimony or to a determination of 

a fact in issue.’ Ind. Evidence Rule 701. Such an opinion is 

admissible even if ‘it embraces an ultimate issue.’ Evid. R. 

704(a). 

But Evidence Rule 704(b) draws a bright-line exception: 

“witnesses may not testify to opinions concerning . . . guilt[ [ or 

innocence in a criminal case.’ Ind. Evidence Rule 704(b). The 

jury, not the witness, is responsible for deciding the ultimate 

issues in a trial, and opinion testimony concerning guilt ‘invades 

the province of the jury in determining what weight to place on a 

witness’ testimony.’ . . . In other words, such testimony usurps 

the jury’s ‘right to determine the law and the facts,’ Ind. Const. 

art. 1 § 19, and is therefore inadmissible. 

Taken together, those principles establish that even in criminal 

cases, opinion testimony may include ‘evidence that leads to an 

[incriminating] inference, even if no witness could state [an] 

opinion with respect to that inference.’ . . . But an opinion must 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 30 of 34

stop short of the question of guilt—because under Rule 704(b) 

and our constitution, that is one ‘ultimate issue’ that the jury 

alone must resolve.

Williams v. State, 43 N.E.3d 578, 581 (Ind. 2015) (internal citations omitted). 

[52] As the State correctly notes, when reading the transcript as a whole, it appears

that Solan’s opinion “was not an opinion on [ ] [Hill’s] guilt,” but rather, the 

impediments to filing charges in 1980. Appellee’s Br. p. 30. Moreover, Solan’s 

statement that there was “substantial evidence” is not a statement regarding 

every element of the offense and “does not embrace the ultimate question of 

guilt, because the State still must prove the other elements in order for the jury 

to find guilt.” Id. at 582. Here, the State had to establish the requisite elements 

of the charged offenses to prove Hill was guilty. 

[53] Solan was not able to give an opinion as to the guilt or innocence of Hill or the 

others. The questions asked of Solan focused on the evidence available in the 

“1980s.” Evidence required for prosecution is quite different from opinion 

evidence regarding guilt or innocence. The trial court did not abuse its 

discretion.

13 

V. Cumulative Errors

[54] Hill argues that, when combined, the purported errors above warrant reversal.

13 Based on this conclusion, we do not reach the State’s alternative theory of invited error. 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 31 of 34

[Our Supreme Court] has been willing to assume ‘for the sake of 

argument, that under some circumstances the cumulative effect 

of trial errors may warrant reversal even if each might be deemed 

harmless in isolation,’ but not where it has been ‘clear in light of 

the evidence of guilt that no prejudice resulted from any of the 

erroneous rulings, individually or cumulatively.’

Inman v. State, 4 N.E.3d 190, 203 (Ind. 2014) (quoting Hubbell v. State, 754 

N.E.2d 884, 895 (Ind. 2011)). Here, we do not find error, much less errors that 

resulted in prejudice. Accordingly, reversal is not warranted. 

VI. Sentencing 

[55] Hill next argues that the trial court abused its discretion in sentencing him. Our 

Supreme Court has held that we must apply the sentencing scheme in effect at 

the time of the defendant’s offense. See Robertson v. State, 871 N.E.2d 280, 286 

(Ind. 2007) (“Although Robertson was sentenced after the amendments to 

Indiana’s sentencing scheme, his offense occurred before the amendments were 

effective so the pre-Blakely sentencing scheme applies to Robertson’s 

sentence.”).

[56] At the time of the offense, the presumptive sentencing scheme was in effect, not

the current advisory sentencing scheme. Indiana’s presumptive sentencing 

system, however, was found to “run[] afoul of the Sixth Amendment” pursuant 

to Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531 (2004), “because it 

mandates both a fixed term and permits judicial discretion in finding 

aggravating or mitigating circumstances to deviate from the fixed term.” Smylie

v. State, 823 N.E.2d 679, 685 (Ind. 2005). Under Blakely: 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 32 of 34

a trial court may not enhance a sentence based on additional 

facts, unless those facts are either (1) a prior conviction; (2) facts 

found by a jury beyond a reasonable doubt; (3) facts admitted by 

the defendant; or (4) facts found by the sentencing judge after the 

defendant has waived Apprendi [v. New Jersey, 530 U.S. 466, 490 

(2000)] rights and consented to judicial fact[-]finding.

Robertson v. State, 871 N.E.2d 280, 286 (Ind. 2007). Hill argues that the 

aggravators found by the trial court violate his rights under Blakely.

[57] The trial court here found two aggravators:

The character of the defendant at the time of the offense was 

dishonest and manipulative. 

The Court finds that given the nature of the offense and the 

character of the defendant, the sentence imposed is appropriate 

and proper. Any reduction or lessor sentence will depreciate the 

seriousness of [the] crime committed.

Appellant’s App. Vol. III p. 165.14 In its order on the motion to correct error, 

the trial court clarified that the character aggravator “derived from the 

14 Hill also argues that the trial court improperly considered the effect of the crime on the victim’s family. 

We agree with the State that the trial court did not consider this factor as an aggravating factor. In its oral 

sentencing statement, the trial court merely remarked: 

Whether [Officer Pucalik is] a police officer or not, an individual died. An individual lost his 

life. An individual that was, from what I could tell, married at the time and certainly had a 

child as well that had to grow up without a father. And you, as a jury would find, were 

involved in all of this. 

Sent Tr. p. 142. This statement, along with the other facts the trial court focused on, goes to the “totality of 

the nature and circumstances.” Id. at 143. There is no indication that the trial court treated the effect of the 

crime on Officer Pucalik’s family as an additional aggravating factor.
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 33 of 34

underlying facts of the case as presented to the jury.” Id. at 180-81. The State 

argues that the character aggravator was based on other criminal incidents, 

which were not presented to the jury but were used to help identify Hill, and the 

fact that “the jury necessarily found that [Hill] possessed a stolen vehicle when 

he committed the present crime.” Appellee’s Br. pp. 36-37.

[58] The jury did not specifically find beyond a reasonable doubt that Hill possessed 

a stolen vehicle or participated in other uncharged crimes, and we conclude that 

this aggravator is similar to the use of a nature and circumstances aggravator. 

Our Supreme Court held that, “except when they are supported by facts 

otherwise properly found, and meant as concise descriptions of the moral or 

penal weight of those facts in assessing criminal culpability, aggravators such as 

‘the nature and circumstances of the crime’ run afoul of the Sixth 

Amendment.” Mitchell v. State, 844 N.E.2d 88, 91 (Ind. 2006); Sowders v. State, 

829 N.E.2d 18, 19 (Ind. 2005) (holding that the following aggravators were 

improper under Blakely: “1) a substantial level of planning and aforethought; 2) 

failure to accept responsibility; 3) a lack of remorse; and 4) certain 

circumstances of the crimes”). Accordingly, we conclude that use of the 

character aggravator violated Blakely. 

[59] The other aggravator—that any reduction or lessor sentence would depreciate 

the seriousness of the crime committed—similarly violated Blakely. In Trusley v. 

State, 829 N.E.2d 923, 927 (Ind. 2005), our Supreme Court held:

There were three other aggravating circumstances found by the 

trial court: that Trusley was in need of incarceration; that the 
Court of Appeals of Indiana | Memorandum Decision 19A-CR-16 | November 19, 2019 Page 34 of 34

imposition of anything other than an enhanced sentence would depreciate 

the seriousness of the crime; and the nature and circumstances of the 

crime. None of these can be supported by facts found according 

to the procedural dictates mandated by Blakely.

(emphasis added). As in Trusley, neither of the aggravators found here by the 

trial court conformed to the procedural dictates mandated by Blakely. 

Accordingly, we remand for resentencing in accordance with Blakely.

15 

Conclusion

[60] Admission of Williams’ deposition did not violate Hill’s constitutional rights. 

Nor did the trial court abuse its discretion: (1) in excluding Vanes’ testimony 

and Hill’s offer of proof; (2) in denying Hill’s motion for mistrial; or (3) by 

allowing Solan’s testimony. Hill’s sentencing, however, did not comply with 

Blakely. We affirm Hill’s conviction, but we reverse his sentence and remand 

for resentencing. 

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

Brown, J., and Altice, J., concur.

15 Because we remand for resentencing, we do not address Hill’s argument that his sentence is inappropriate.