Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020 Page 1 of 20

ATTORNEYS FOR APPELLANT

Paul G. Stracci

J. Michael Woods

Stracci Law Group, P.C.

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Curtis T. Hill, Jr.

Attorney General of Indiana

J.T. Whitehead

Deputy Attorney General

Indianapolis, Indiana

I N THE

COURT OF APPEALS OF INDIANA

Marcus Lee McCain,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

January 6, 2020

Court of Appeals Case No.

19A-CR-1113

Appeal from the 

Lake Superior Court

The Honorable 

Samuel L. Cappas, Judge

Trial Court Cause No.

45G04-1708-MR-6

Vaidik, Judge.

Case Summary

[1] The State charged Marcus Lee McCain with murder for shooting a man in the 

head in a Gary restaurant, an incident that was captured on surveillance video. 

The State also filed a firearm enhancement, alleging that McCain used a 

firearm in the commission of murder. McCain argued self-defense during trial 
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but requested a voluntary-manslaughter instruction at the end of trial. 

Thereafter, the jury found McCain guilty of voluntary manslaughter, and the 

trial court found that the firearm enhancement applied. The court then 

sentenced McCain to forty-five years: twenty-seven years for voluntary 

manslaughter enhanced by eighteen years for using a firearm. 

[2] McCain now appeals. He first argues that the trial court erred in imposing the 

firearm enhancement because he was acquitted of the offense (murder) that was 

alleged in the charging information for the enhancement. Because McCain 

doesn’t dispute that (1) voluntary manslaughter is an offense that qualifies for 

the firearm enhancement, (2) voluntary manslaughter is simply murder 

mitigated by evidence of sudden heat, (3) he used a firearm to kill the victim,

and (4) he is the one who asked for the voluntary-manslaughter instruction at 

the end of trial, we conclude that the court did not err in imposing the firearm 

enhancement. McCain also argues that the court impermissibly enhanced his 

sentence based upon its personal disagreement with the jury’s verdict. Given

that the court made it clear that it disagreed with the jury’s verdict and found as 

an aggravator that the killing was “cold blooded” and “callous”—which is 

directly at odds with the jury’s finding of sudden heat and therefore an 

improper aggravator as a matter of law—we choose to exercise our authority to 

review and revise sentences and remand this case with instructions for the court 

to sentence McCain to thirty-five years: twenty-five years for voluntary 

manslaughter enhanced by ten years for using a firearm. 
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Facts and Procedural History

[3] In the early morning hours of August 5, 2017, McCain, his cousin, and his 

girlfriend went to Philly Steaks and Fresh Lemonade in Gary. McCain lived in 

Wisconsin but was visiting family in Indiana. Although it was after midnight, 

there were several people in the restaurant at the time, including two young 

children. After McCain and his girlfriend placed their orders and were waiting 

for their food, Marcel Harris and two other men walked into the restaurant. 

According to McCain, he had “never met them a day in [his] life.” Tr. Vol. VI 

p. 224. Two patrons, a husband and wife, noted that the atmosphere of the 

restaurant changed when the three men walked in. McCain observed that one 

of the men with Harris had a gun in his pocket and that Harris was “meanmugging” him. Tr. Vol. VII p. 29. When Harris walked outside the restaurant, 

McCain followed him. The two exchanged words outside, and Harris reentered the restaurant and positioned himself at the door. Meanwhile, McCain 

got his cousin from the car, and the two walked back inside the restaurant. As 

soon as McCain walked back inside, an argument ensued between Harris and 

McCain, with Harris pushing McCain. As shown on the restaurant’s videosurveillance system, McCain then grabbed a gun from his cousin’s hand. See

Ex. 53 (DVD). According to McCain, after he grabbed the gun Harris told his 

friend with the gun to “[s]hoot that shit.” Tr. Vol. VII p. 7. At this point, 

McCain thought that “it was [Harris’s] life or [his] life.” Id. McCain then 

shoved Harris several feet, walked up to him, and pushed the gun into the side 

of his head. See Ex. 53. When Harris appeared to swat away the gun, McCain 
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shot him in the temple at close range, killing him. Id. McCain, his girlfriend, 

and his cousin ran out of the restaurant. Id. 

[4] Officers from the Gary Police Department responded shortly after the shooting. 

They obtained still images of McCain from the restaurant’s video-surveillance 

system and broadcasted them on Chicago news stations. Shortly thereafter, 

someone from Wisconsin identified McCain as the shooter. 

[5] On August 10, the State charged McCain with murder. Appellant’s App. Vol. 

II p. 27. About a month later, the State added a firearm enhancement:

Marcus Lee McCain did knowingly or intentionally use a firearm 

in the commission of the offense of Murder, contrary to I.C. 35-

50-2-11(d).

Id. at 41. Indiana Code section 35-50-2-11(d) provides, in relevant part:

The state may seek, on a page separate from the rest of a 

charging instrument, to have a person who allegedly committed 

an offense sentenced to an additional fixed term of imprisonment 

if the state can show beyond a reasonable doubt that the person 

knowingly or intentionally used a firearm in the commission of 

the offense. 

(Emphases added). An “offense” is defined as (1) a felony under Indiana Code 

article 35-42 that results in death or serious bodily injury; (2) kidnapping; or (3) 

criminal confinement as a Level 2 or 3 felony. Id. at (b).

[6] A four-day jury trial was held in December 2018. During opening statements, 

defense counsel asked the jury to find that McCain acted in self-defense. See Tr. 
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Vol. III p. 63. McCain testified in his own defense that he was “scared” when

Harris walked into the restaurant and pushed him and that he grabbed his 

cousin’s gun because he was “scared.” Tr. Vol. VII pp. 5, 6. 

[7] After presentation of the evidence, the trial court held a conference with the 

attorneys to discuss final jury instructions. Defense counsel asked the trial court 

to instruct the jury on Level 2 felony voluntary manslaughter as a lesserincluded offense of murder. Id. at 71-73; see also Ind. Code § 35-42-1-3

(providing that a person who knowingly or intentionally kills another human 

being while acting under sudden heat commits voluntary manslaughter and 

explaining that sudden heat is a mitigating factor that reduces what otherwise 

would be murder to voluntary manslaughter). The State did not object. During 

closing arguments, defense counsel mainly argued self-defense, only briefly

mentioning sudden heat. Tr. Vol. VII pp. 129, 130. After closing arguments, 

the trial court read final instructions to the jury. 

[8] Thereafter, the jury found McCain guilty of voluntary manslaughter. McCain 

then “waive[d] jury trial” on the firearm enhancement, and the jury was 

excused. Id. at 166. As the trial court was about ready to start the firearmenhancement phase, the State pointed out that the charging information for the 

enhancement alleged that McCain used a firearm in the commission of murder, 

not voluntary manslaughter. However, the State argued that this did not matter 

because voluntary manslaughter was “still a qualifying offense” under Section 

35-50-2-11(b). Id. at 164. The State then asked the court if it should amend the 

charging information to say voluntary manslaughter instead of murder. 
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Defense counsel argued that it did not receive fair notice that the State was 

going to pursue the firearm enhancement for voluntary manslaughter and asked 

the court to find McCain “not guilty on the enhancement.” Id. at 170. The trial 

court took the matter under advisement. 

[9] In later announcing its decision, the trial court stated that the issue was whether 

McCain “had notice to be able to prepare a defense” and that McCain indeed 

had notice, as he was the one who asked for the voluntary-manslaughter 

instruction at the end of trial, voluntary manslaughter is an inherently included 

offense of murder, and defense counsel conceded that he had no defense to the 

firearm enhancement if McCain was convicted of murder. Id. at 186. Finding 

that there was “no blind-siding here that took place if [McCain] got convicted 

of voluntary manslaughter,” the court entered judgment of conviction against 

McCain on the firearm enhancement. Id. at 187. Also during this time, the 

court made several comments that it disagreed with the jury’s verdict, saying, 

for example, “It was the clearest case of . . . cold-blooded murder I’ve seen in 

high definition in 32 years” and “[t]he voluntary manslaughter verdict was a 

gift.” Id. at 186. 

[10] McCain’s sentencing hearing was held in April 2019. At the hearing, the trial 

court continued to make comments that it disagreed with the jury’s verdict, 

saying, for example, “The words that the video spoke to me w[ere] cold 

blooded and callous” and “that was the cleanest cut video I have ever seen of 

my impression of a murder.” Tr. Vol. VIII pp. 49, 51. The court identified 

numerous aggravators: (1) the shooting took place in a public environment with 
Court of Appeals of Indiana | Opinion 19A-CR-1113 | January 6, 2020 Page 7 of 20

fourteen people in close proximity; (2) there were two children present during 

the shooting; (3) the defendant endangered at least one other person who was 

within the trajectory of the bullet a couple of seconds before the shooting; (4)

Harris “was shot at point-blank range with the gun placed to [his] temple”; (5)

the nature of the shooting was “particularly cold-blooded and callous despite 

the fact that [McCain] was convicted of Voluntary Manslaughter wherein heat 

of passion was found to be a mitigating circumstance”; (6) McCain has a 

criminal history, including two felony convictions; (7) McCain has previously 

been incarcerated for thirty days, “which has failed to deter him from a life of 

crime”; (8) McCain has seven to eight contacts with the criminal-justice system, 

“which reflect adversely on [his] character in that he is not able to live a lawabiding life;” (9) a Facebook post from McCain adversely reflects on his 

character, as it shows that he invites “violence or conflict”: “ni**as kno fu**ing 

wit me sh** can get wicked”; and (10) McCain is in need of correctional or 

rehabilitative treatment that can only be provided by a penal facility. 

Appellant’s App. Vol. III pp. 142-43; Tr. Vol. VIII p. 48; Sentencing Ex. A. 

The court identified several mitigators: (1) McCain expressed remorse; (2) 

approximately thirty people submitted letters on McCain’s behalf; however, the 

court didn’t give this much weight because some of the letters described 

McCain as “peacemaking” but he didn’t use those skills on the night of the 

shooting; (3) McCain has a two-year-old child; however, the court didn’t give 

this much weight either because McCain wasn’t court-ordered to pay support 

for his child; and (4) McCain completed some courses in jail, which was 

“somewhat of a mitigating factor.” Appellant’s App. Vol. III pp. 143-44; Tr. 
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Vol. VIII pp. 45-47. Although McCain proffered other mitigators, the court 

rejected them. See Appellant’s App. Vol. III pp. 143-44 (rejecting the proposed 

mitigators that the crime is unlikely to recur, that McCain is likely to respond 

favorably to short-term imprisonment, and that McCain accepted 

responsibility). Near the end of its sentencing order, the court included the 

following statement:

For the record, . . . the high-definition video, from the Court’s 

perspective, depicts a cold-blooded callous execution type 

shooting. The Court acknowledges that the jury found the 

defendant guilty of Voluntary Manslaughter. To be clear, the 

Court is not assessing this sentencing as that of a murder case or 

using the factors of a murder to elevate the sentence of Voluntary 

Manslaughter. In other words, the Court is not punishing the 

defendant for the crime of Murder in the Voluntary 

Manslaughter sentence. However, the manner in which the 

defendant used the gun in such a callous nature as depicted in the 

video, speaks for itself. 

Id. at 144. Finding that the aggravators “substantially” outweigh the mitigators, 

Tr. Vol. VIII p. 54, the court sentenced McCain to twenty-seven years for

voluntary manslaughter (three years shy of the maximum, see Ind. Code § 35-

50-2-4.5) enhanced by eighteen years for using a firearm (two years shy of the 

maximum, see I.C. § 35-50-2-11(g)), for a total sentence of forty-five years

(which is the minimum sentence for murder, see Ind. Code § 35-50-2-3).

[11] McCain now appeals.
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Discussion and Decision

I. Firearm Enhancement

[12] McCain first contends that the trial court erred in imposing the firearm 

enhancement because he was acquitted of the offense (murder) that was alleged 

in the charging information for the enhancement. As set forth above, the 

charging information for the firearm enhancement provides as follows: 

Marcus Lee McCain did knowingly or intentionally use a firearm 

in the commission of the offense of Murder, contrary to I.C. 35-

50-2-11(d).

Id. at 42. McCain argues that because the State specifically used “Murder” in 

the charging information—as opposed to using the general statutory language 

of “a felony under IC 35-42 that resulted in death or serious bodily injury”—

and McCain was acquitted of murder, the court could not impose the firearm 

enhancement. Appellant’s Br. pp. 17-18. 

[13] McCain makes various arguments why we should vacate his firearm 

enhancement. We find no merit to any of them. Notably, McCain doesn’t 

dispute that (1) voluntary manslaughter qualifies for the firearm enhancement 

under Section 35-50-2-11(b) because it is “a felony under IC 35-42 that resulted 

in death”; (2) voluntary manslaughter is simply murder mitigated by evidence 

of sudden heat, see, e.g., Brantley v. State, 91 N.E.3d 566, 572 (Ind. 2018), reh’g 

denied, cert. denied; and (3) he used a firearm to kill Harris. To the extent 

McCain claims he didn’t have notice that the State was going to pursue the 
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firearm enhancement for voluntary manslaughter, he is the one who asked for 

the voluntary-manslaughter instruction at the final-instructions conference. Up 

until that point, this was a murder/self-defense case only. The trial court did 

not err in imposing the firearm enhancement.1

II. Sentencing

[14] McCain next contends that the trial court “impermissibly enhanced [his]

sentence based on an offense for which [he] was acquitted.” Appellant’s Br. p. 

34. “While a trial judge is not prohibited from expressing his personal 

disagreement with a jury’s verdict, a trial judge is prohibited from enhancing a 

defendant’s sentence based upon his personal disagreement with the verdict.” 

Hamman v. State, 504 N.E.2d 276, 278 (Ind. 1987). It is no secret here that the 

trial judge disagreed with the jury’s verdict. After the jury was excused, the 

judge made several comments about the jury’s voluntary-manslaughter verdict:

• “I didn’t see any sudden heat. It was the clearest case of, 

I’d say, cold-blooded murder I’ve seen in high definition in 

32 years. The only sudden heat comes in from your 

client’s testimony that he was angry, which I don’t know 

that I believe to be credible.” Tr. Vol. VII pp. 186-87.

• “The voluntary manslaughter verdict was a gift.” Id. at 

187. 

1 Although this argument could have been avoided if the State had simply alleged in the firearmenhancement charging information that McCain knowingly or intentionally used a firearm in the 

commission of “a felony under IC 35-42 that resulted in death or serious bodily injury,” we find no error 

given the facts of this case.
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• “I don’t know what your defense is. Your client is on 

video with a gun shooting the victim in the head at pointblank range. . . . Whether you want to call it voluntary 

manslaughter or murder, that’s up to you.” Id.

• “[I]t’s the most perfectly placed shot you can put to kill 

somebody. The words that the video spoke to me w[ere]

cold blooded and callous.” Tr. Vol. VIII p. 49.

• Describing the video as “the cleanest cut video I have ever 

seen of my impression of a murder.” Id. at 51. 

• “Mr. McCain, your attorneys did their job for you and 

minimized your exposure to prison time by obtaining a 

voluntary manslaughter verdict for you. But when I look 

at the video, it appears to me to be an execution-type 

killing.” Id. at 53.

[15] Notwithstanding these comments, the judge included a statement at the end of 

its sentencing order that although the video “depicted a cold-blooded callous 

execution type shooting,” he was “not punishing McCain for the crime of 

Murder in the Voluntary Manslaughter sentence.” But the judge did punish 

McCain for the crime of murder, at least in part. Sudden heat exists when a 

defendant is provoked by anger, rage, resentment, or terror to a degree sufficient 

to obscure the reason of an ordinary person, prevent deliberation and 

premeditation, and render the defendant incapable of cool reflection. Brantley, 

91 N.E.3d at 572. Although the jury found the existence of sudden heat, the 

judge found as an aggravator that the killing was “cold-blooded” and “callous.” 

The judge’s finding that the killing was “cold-blooded” is clearly at odds with 

the jury’s finding that the killing was done in sudden heat. When a jury finds a 
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defendant guilty of voluntary manslaughter, aggravators like “cold-blooded” 

and “callous” are improper as a matter of law. In addition, we note that the 

judge crafted its sentence so that McCain was sentenced to exactly forty-five 

years, the minimum sentence for murder. It is apparent that the judge 

enhanced McCain’s sentence, in part, to compensate for what he believed to be 

an erroneous verdict. See Gambill v. State, 436 N.E.2d 301, 305 (Ind. 1982). 

[16] When a trial court relies on an improper aggravator, an appellate court has 

several options, including (1) remanding the case to the trial court for a new 

sentencing determination or (2) exercising our authority to review and revise 

the sentence pursuant to Indiana Appellate Rule 7(B). Windhorst v. State, 868 

N.E.2d 504, 507 (Ind. 2007), reh’g denied. We find that the first option is not 

appropriate here given the trial judge’s outspoken disagreement with the jury’s 

verdict. See Phelps v. State, 24 N.E.3d 525, 528 (Ind. Ct. App. 2015) (“We 

believe, however, that the presence of aggravating circumstances justifying an 

enhanced sentence does not wash away the stain left by a trial court’s blatant 

disagreement with the jury verdict at sentencing.”). Accordingly, we choose the 

second option. 

[17] McCain asks us to reduce his sentence to the advisory term of seventeen-and-ahalf years for voluntary manslaughter and the minimum enhancement of five 

years for using a firearm, for a total sentence of twenty-two-and-a-half years. 

We think a reduction is appropriate, but not one that significant.
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[18] We agree with McCain that his criminal history is not particularly weighty or 

similar to the present offense to justify an enhanced sentence. Although 

McCain, who was thirty years old at the time of sentencing, has prior 

convictions, they are mostly related to marijuana (two felonies for 

manufacture/deliver THC, one misdemeanor for possession of THC, and one 

misdemeanor for disorderly conduct). In addition, McCain’s longest period of 

incarceration before the shooting was thirty days. But what is particularly 

troubling about this shooting is that it occurred in a restaurant with numerous 

people present, including two young children. Moreover, as the trial court 

noted, although Harris was the first to push McCain, McCain had several 

opportunities to leave the restaurant but didn’t. See Appellant’s App. Vol. III p. 

143 (“[T]he defendant had three (3) opportunities to leave the restaurant and 

use his ‘peace making skills’ to avoid the killing of the victim, which the 

defendant failed to avoid.”). These circumstances justify an enhanced sentence. 

We therefore remand this case with instructions that McCain’s sentence be 

vacated and that the trial court sentence him to thirty-five years: twenty-five 

years for voluntary manslaughter enhanced by ten years for using a firearm.

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

Najam, J., concurs.

Tavitas, J., concurring in part and dissenting in part, with separate opinion.
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I N T H E

COURT OF APPEALS OF INDIANA

Marcus Lee McCain,

Appellant-Defendant,

v.

State of Indiana,

Appellee-Plaintiff

Court of Appeals Case No.

19A-CR-1113

Tavitas, Judge, concurring in part and dissenting in part.

[20] I respectfully concur in part and dissent in part.

[21] I agree with the outcome of the majority’s decision regarding the gun 

enhancement. There was a variance here between the charging information 

and the evidence presented. Our Supreme Court has held:

Because the charging information advises a defendant of the 

accusations against him, the allegations in the pleading and the 

evidence used at trial must be consistent with one another. 

Simmons v. State, 585 N.E.2d 1341, 1344 (Ind. Ct. App. 1992). A 

variance is an essential difference between the two. Mitchem v. 

State, 685 N.E.2d 671, 677 (Ind. 1997). Not all variances, 

however, are fatal. Id. Relief is required only if the variance (1) 

misled the defendant in preparing a defense, resulting in 

prejudice, or (2) leaves the defendant vulnerable to future 

prosecution under the same evidence. Winn v. State, 748 N.E.2d 

352, 356 (Ind. 2001).
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Blount v. State, 22 N.E.3d 559, 569 (Ind. 2014). 

[22] Both murder and voluntary manslaughter fell within the offenses listed in the 

gun enhancement statute. Moreover, McCain requested the voluntary 

manslaughter instruction as a lesser included offense of murder. McCain

should not have been surprised or misled by the variance, and his defenses did 

not change. The variance also did not leave McCain vulnerable to future 

prosecution under the same evidence.

[23] As for the reduction in McCain’s sentence, I respectfully disagree. I 

acknowledge the trial court’s statements, which are quoted in the majority’s 

opinion. The trial court, however, also stated in its sentencing order:

The Court acknowledges that the jury found the defendant guilty 

of Voluntary Manslaughter. To be clear, the Court is not 

assessing this sentencing as that of a murder case or using the 

factors of a murder to elevate the sentence of Voluntary 

Manslaughter. In other words, the Court is not punishing the 

defendant for the crime of Murder in the Voluntary 

Manslaughter sentence. However, the manner in which the 

defendant used the gun in such a callous nature as depicted in the 

video, speaks for itself.

Appellant’s App. Vol. III p. 147. In determining McCain’s sentence, the trial 

court specifically identified numerous aggravators and several mitigators and 

found that the aggravators outweighed the mitigators. The trial court then 

sentenced McCain to a total of forty-five years in the DOC, which is five years 

less than the maximum possible sentence. 
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[24] The majority relies on Gambill v. State, 436 N.E.2d 301 (Ind. 1982), which I find 

distinguishable. In Gambill, although the defendant was charged with murder, 

he was convicted of voluntary manslaughter. At sentencing, the trial court 

stated:

“I think that there are some statutory aggravating circumstances. 

I think that the evidence shows that the defendant is in need of 

correctional or rehabilitative treatment that can be best provided 

by his commitment to a penal facility, and I think an imposition 

of a reduced sentence or a suspension of the sentence and 

imposition of probation would depreciate the seriousness of the 

crime. So, there are those things here in my judgment.

“* * * I think the facts of the occurrence justify, and the evidence 

would justify a conviction of murder. I think in fact that was the 

offense committed. The jury, as it had a right to do, returned a 

verdict of voluntary manslaughter for whatever reason, and I 

think it was not the right verdict. Further than that I think the 

police did an exemplary job of developing this case.”

Gambill, 436 N.E.2d at 304. 

[25] Our Supreme Court took issue with the trial court’s sentencing because the trial 

court’s statement was “deficient in that it merely repeats the conclusory 

language of Ind. Code s 35-4.1-4-3 (35-50-1A-3) (Burns 1979) without stating 

the facts through which the conclusions were reached.” Id. 

The trial court’s statement of reasons for imposing an enhanced 

sentence fails to provide this Court with facts enabling it to draw 

a conclusion as to the reasonableness of the sentence. More 

importantly, it also manifests that the trial court enhanced the 

sentence by reason of a consideration that is beyond the pale of 
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his authority. * * * * * It is clear that the trial court enhanced the 

sentence to compensate for what he believed to be an erroneous 

verdict. In so doing, he invaded the province of the jury.

Id. at 304-05. 

[26] Unlike Gambill, this trial court entered a very detailed sentencing statement with 

numerous valid aggravators. The trial court also specifically stated that it was 

“not assessing this sentencing as that of a murder case or using the factors of a 

murder to elevate the sentence of Voluntary Manslaughter.” Appellant’s App. 

Vol. III p. 147. Accordingly, I find Gambill distinguishable.

[27] I find this case is more like our Supreme Court’s opinion in Wilson v. State, 458 

N.E.2d 654, 656 (Ind. 1984), which our Supreme Court decided after Gambill. 

As in Gambill, the defendant in Wilson was charged with murder and convicted 

of voluntary manslaughter. At sentencing, the trial court stated:

“All right, Mr. Wilson, stand to the microphone. This was a 

brutal killing. You face, when you went into trial, you faced a 

maximum of sixty (60) years for this, minimum of thirty (30) 

years.

Your lawyer performed brillantly (sic) and got you substantially 

less. It does not change the brutal nature of this killing. To give 

the minimum sentence in this case would be a terrible thing for 

me to do. It would be a terrible thing to you. It would be a 

terrible thing to me. I couldn’t live with myself do (sic) that.

Now, there are a number of things that we have to do to filter out 

the personal feelings in sentencing. There shouldn’t be any 

vindictiveness on my part when I sentence you; so we establish 
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standards to filter out those personal feelings from the sentencing 

process.

There are two (2) aggravating factors I find[:] one that was 

imposition of a reduced sentence would depreciate the 

seriousness of the crime; and the other aggravating factor is that 

the victim of the crime was infirm in that she was an unarmed 

woman in a confrontation with an armed man.

There are no mitigating factors.

The finding that the jury made on sudden heat was an attribute to 

your lawyer. He is so good that that jury just couldn’t find 

against him on those facts except voluntary manslaughter, and 

they gave you every benefit of every possible break they could 

look for and find. But there are no mitigating factors.

I’m not taking it into consideration perceived perjury as was 

approved in Wolf v. State, perceived perjury has to be so blatant 

and so clear on the record that . . . there can be no argument 

about it. That’s not necessarily the case here. And again you get 

the benefit of the doubt because it is not clear perjury.

In assessing additional penalty for the aggravating factors, I find 

that additional five (5) years to the presumptive sentence is 

adequate. For that reason, you’re now sentenced to the 

Department of Corrections for classification and confinement in 

a maximum security facility for a period of fifteen (15) years. 

Costs are assessed against the defendant.

There are no mitigating factors. There are two (2) aggravating 

factors that I have previously mentioned.”

Wilson, 458 N.E.2d at 655-56. 
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[28] On appeal, our Supreme Court held:

In the case now before us the judge does entertain a degree of 

skepticism regarding the evidence of sudden heat and the success 

which defense counsel had with the jury through use of his 

persuasive talents. He is not however so resolutely opposed to 

the jury verdict as was the case in Gambill. Consequently we find 

that the statements of the trial judge were within the proper scope 

of his authority to make an evaluative statement of the

circumstances surrounding the crime, and did not constitute an 

invasion of the province of the jury or render the enhancement 

suspect.

Id. at 656. 

[29] As in Wilson, although the trial court did make some statements expressing 

skepticism of the voluntary manslaughter conviction, I find nothing improper 

regarding the trial court’s actual sentencing of McCain. Discussing the brutal 

nature of McCain’s offense is part of the review the trial court may properly 

perform; the trial court may consider the nature of the offense in imposing a 

sentence. See Ind. Code 35-38-1-7.1(c); Gomillia v. State, 13 N.E.3d 846, 853 

(Ind. 2014) (“Generally, the nature and circumstances of a crime is a proper 

aggravating circumstance.”). The trial court was very specific regarding the 

aggravators and mitigators in this case. The trial court made it clear that it was 

following the law and basing the sentence upon those aggravators and 

mitigators. As in Wilson, given the nature and circumstances of this voluntary 

manslaughter offense, McCain’s prior two felony convictions, and the other 

proper aggravators and mitigators, I do not find that the trial court abused its 
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discretion, especially in light of the fact that the trial court did not impose the 

maximum sentence. Moreover, I do not find this sentence inappropriate. I 

would affirm.