author: KIRSCH, Judge.

text:
    Michael Patrick KNOTT and Andrew John Knott, Appellants-Defendants, v. STATE of Indiana, Appellee-Plaintiff.
    No. 28A04-1203-PL-122.
    Court of Appeals of Indiana.
    Sept. 13, 2012.

      Rudolph W. Savich, Bloomington, IN, Attorney for Appellants.
    Gregory F. Zoeller, Attorney General of Indiana, David L. Steiner, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

KIRSCH, Judge.

The State of Indiana filed a complaint, in eminent domain proceedings, to appropriate a parcel of land owned by Michael Patrick Knott and Andrew John Knott (together, “the Knotts”) for the purpose of constructing a portion of Interstate 69 (“I-69”) through Greene County, Indiana. The Knotts filed objections to the complaint, and after striking the Knotts’ objections, the trial court issued an “Order of Appropriation and Appointment of Appraisers” (“Order of Appropriation”). Ap pellant’s App. at 6. The Knotts raise the following issue on appeal, which we restate as whether the Order of Appropriation is capricious, fraudulent, or illegal because it fails to comply with federal environmental laws and regulations.

We affirm.

FACTS AND PROCEDURAL HISTORY

The Knotts own 45 acres of real estate located in Section 16, Township 6 North, Range 4 West, Greene County, Indiana. Appellant’s Br. at 2. On September 14, 2011, the State, on behalf of the Indiana Department of Transportation (“INDOT”), filed a Complaint for Appropriation of Real Estate (“Complaint”) to acquire 11.236 acres of the Knotts’ 45 acres of real estate for purposes of constructing a portion of I-69, referred to as a “limited access facility” (“1-69 Project”). Id. at 13,18.

In Paragraphs I and II of its Complaint, the State explained that it was improving “1-69 under Project No. 0500446,” and needed to “appropriate fee simple title and access rights to portions of the real estate owned by [the Knotts],” known as INDOT Parcel 17, Code 5531 (“Parcel 17”). Appellant’s App. at 13. In Paragraph VI, the State averred that it had made an offer to the Knotts to purchase the property in question for $27,200, but that the parties had not been able to agree on a purchase price. In Paragraph VII, the State described the subject property. The Complaint requested the appropriation of the described property and the appointment of disinterested appraisers to prepare a Report of Appraisers concerning the value of the property interests subject to eminent domain.

The Knotts filed “Objections to Proceedings.” Id. at 32. Under Objection I, the Knotts stated that “[t]he proposed highway improvement project as described in paragraph VII of [the Complaint] does not cross the [Knotts’] real estate and is not necessary for the highway improvement project as described.” Id. at 32. The State, noting a scrivener’s error, filed a motion to substitute existing Paragraph VII with the proper description of the land; a description that included the Knotts’ Parcel 17. The trial court granted the State’s motion on December 19, 2011. The Knotts subsequently raised no objection to the description of the affected property either at trial or on appeal.

The Knotts’ additional objections to the proceedings included the following: (1) INDOT violated the National Environmental Policy Act (“NEPA”) by failing to prepare a Supplemental Tier 1 Environmental Impact Statement (“EIS”) based on significant information bearing on the environmental and economic impacts of its proposed 1-69 Project, Appellant’s App. at 34; (2) INDOT and the Federal Highway Administration (“FHWA”) violated NEPA by failing to prepare a “Supplemental Tier 2 EIS for Section 4 based on significant new information bearing on the environmental impacts of agency action,” id. at 46; (3) INDOT and FHWA violated NEPA by preparing a “Tier 2 EIS for Section 4 in bad faith, arbitrarily circumventing involvement of owners of historic and archaeological properties, engaging in theft or conversion of artifacts, concealing material information from the public regarding air pollution[,] public health impacts[,] and violations of law, and ignoring documented unacceptable adverse impacts,” id. at 49; (4) “the 1-69 ... [P]roject is in violation of Section 4(f) of the Transportation Act,” id. at 52; and (5) INDOT’s approval of 1-69 section 4 and issuance of a Clean Air Act (“CAA”) Conformity Determination violate the CAA, id. at 55.

The State responded with a motion to strike the Knotts’ objections, contending that, except for the scrivener’s error in Paragraph VII, which had been remedied, the objections were legally deficient because their objections did not address the clear authority of the State to acquire Parcel 17 for the appropriate purpose of constructing the 1-69 Project. On February 20, 2012, the trial court entered an order striking the Knotts’ objections, and thereafter, entered the Order of Appropriation. The Knotts now appeal.

DISCUSSION AND DECISION

The State has inherent authority to take private property for public use. Sagarin v. City of Bloomington, 932 N.E.2d 739, 744 (Ind.Ct.App.2010), trans. denied (2011), cert. denied, — U.S.-, 132 S.Ct. 117, 181 L.Ed.2d 41 (2011) (citing Murray v. City of Lawrenceburg, 925 N.E.2d 728, 731 (Ind.2010)). Eminent domain proceedings for seizing private property are powerful instruments of government. Id. (citing Derloshon v. City of Fort Wayne ex rel. Dep’t of Redevelopment, 250 Ind. 163, 166, 234 N.E.2d 269, 271 (1968)). As long as the governmental entity intends to use the land for a public purpose that is constitutional, there are few defenses to prevent a taking. Id. Such powers and rights, however, are not unlimited. Derloshon, 250 Ind. at 166, 234 N.E.2d at 271.

In eminent domain proceedings the focus of our judicial review is narrow. See Berman v. Parker, 348 U.S. 26, 32, 75 S.Ct. 98, 99 L.Ed. 27 (1954). “Significantly the courts are not to infringe upon the administrative act of determining the necessity or reasonableness of the decision to appropriate and take land.” Indianapolis Power & Light Co. v. Barnard, 175 Ind.App. 308, 312, 371 N.E.2d 408, 411 (1978). Like the trial court, we must restrict our review to whether the condemnation proceedings were legal, whether the condemning authority had authority to condemn the property in question, and whether the property was to be taken for a public purpose. City of Evansville ex rel. Dep’t of Redevelopment v. Reising, 547 N.E.2d 1106, 1111 (Ind.Ct.App.1989); State ex rel. Ind. Dep’t of Conservation v. Barber, 246 Ind. 30, 36, 200 N.E.2d 638, 640 (1964). See also Ind.Code § 32-24-1-8. Additionally, we have the power to question whether the condemnation was fraudulent, capricious, or illegal. Reising, 547 N.E.2d at 1111; Barber, 246 Ind. at 36, 200 N.E.2d at 640-41. In addressing allegations of fraud or bad faith, however, we are limited to considering only whether there was fraud, bad faith, capriciousness, or illegality as to the necessity of the taking, i.e., whether “the property taken will not be used for a public purpose, or the proceeding is a subterfuge to convey the property to a private use.” Cemetery Co. v. Warren Sch. Twp. of Marion Cty., 236 Ind. 171, 188, 139 N.E.2d 538, 546 (Ind.1957).

The Knotts raised a valid objection to the eminent domain proceedings on the basis that their property was not included in Paragraph VII, which described the property subject to appropriation. This deficiency, however, was remedied when, without objection, the trial court allowed the State to amend Paragraph VII to include the description of Parcel 17. Once remedied, this was no longer a valid objection.

The Knotts contend that their remaining objections should not have been stricken because they alleged that the State and INDOT acted illegally and in bad faith because the 1-69 Project is proceeding in violation of certain federal laws. The Knotts assert that the State’s failure to File a supplemental EIS was a violation of NEPA, and thus posed a valid objection to the condemnation proceeding. NEPA requires all federal agencies to prepare an EIS addressing the impact on the quality of the human environment prior to embarking on any major federal action. 42 U.S.C. § 4332(2)(C) (emphasis added). When new information affects a major federal action, NEPA also requires a federal agency to file a supplemental EIS. Relying on this NEPA requirement, the Knotts assert that, based on the State’s relationship with the FHWA, the 1-69 Project is “a major federal action” under NEPA, and therefore the State’s failure to prepare a supplemental EIS is fatal to the State’s attempt to condemn Parcel 17. The Knotts also object to the condemnation on the basis that the State failed to comply with other federal laws in connection with this major federal action, including the CAA and Section 4(f) of the Transportation Act. We find the State’s failure to comply with these federal statutes has no impact on the State’s authority to proceed with the condemnation at issue.

While the Knotts object to the acquisition of their property on the grounds that the State failed to comply with NEPA, CAA, and the Transportation Act, Indiana’s eminent domain laws do not require the State to comply with these federal statutes prior to appropriating private property for a public purpose. See generally, Ind.Code Art. 32-24. “The issues in the objections stage of an eminent domain case are narrow and relate only to the questions related to the proposed acquisition of real estate.” See State ex rel. Bd. of Aviation Comm’rs of City of Warsaw v. Kosciusko Cnty. Superior Ct., 430 N.E.2d 754, 755 (Ind.1982).

In J.M. Foster Co. v. Northern Indiana Public Service Co., 164 Ind.App. 72, 326 N.E.2d 584 (Ind.Ct.App.1975), our court explained the rationale behind this conclusion. Northern Indiana Public Service Co. (“NIPSCO”), a public utility, filed a complaint to condemn a right of way over real estate owned by Foster. 164 Ind.App. at 73, 326 N.E.2d at 585. Foster filed objections to the taking, and the trial court entered an order overruling Foster’s objections. On appeal, Foster maintained that NIPSCO had not negotiated in good faith. Specifically, Foster objected to the proposed condemnation on the basis that NIPSCO had failed to file an environmental impact report as required by an Indiana environmental statute. Id. at 80, 326 N.E.2d at 589. In determining that Foster’s objection was improper, this court reasoned:

The fulfillment of any duty which [the environmental statute] might arguably impose upon a public utility exercising the power of eminent domain cannot be regarded as a prerequisite to the filing of a complaint for condemnation where the order sought thereby could do no more than effect an eventual shift in title. Although action by the Environmental Board pursuant to the filing of an impact report might conceivably force an alteration of plans, such a consideration is, under existing authority, foreign to proceedings for condemnation and more properly the subject of an ... environmental suit[ ].

Id. at 80, 326 N.E.2d at 589. Stated differently, this court determined that Foster’s objection to the condemnation on the basis that the State failed to comply with environmental laws was improper because the objection did not address the issue of the acquisition of property, but instead addressed issues related to the possible environmental impact of the project as a whole.

In Chambers v. Public Service Co. of Indiana, Inc., 265 Ind. 336, 355 N.E.2d 781 (1976), the court reached a similar conclusion when faced with a question of whether government approval must be obtained prior to the acquisition of private property through eminent domain. In Chambers, the parties agreed that Public Service Co. of Indiana (“PSI”), a public utility, had to obtain government approval before it could build a nuclear generating facility on the land PSI sought to acquire for that purpose. Notwithstanding this agreement, our court, noting that “prior approval by a governmental authority is not necessary to land acquisition by eminent domain,” held that it was “not necessary for PSI to have obtained the necessary permits from the federal agencies prior to acquiring the land.” 265 Ind. at 342, 355 N.E.2d at 785.

Finally, in Indianapolis Power & Light Co. v. Barnard, the public utility, IPAL-CO, sought to condemn a right of way across the Barnards’ land for the purpose of placing electrical transmission lines on the land. 175 Ind.App. at 309, 371 N.E.2d at 409. The Barnards filed their objections asserting that the erection of transmission lines would violate the so-called High Structures Act “if a permit [was] not obtained from the State Aeronautics Commission pursuant to such law.” Id. at 310, 371 N.E.2d at 410. Finding that IPALCO had yet to obtain the required permit, the trial court sustained the Barnards’ objections. On appeal, our court first found that IPALCO had the statutory authority to condemn the property in question, and then addressed the issue of whether intervening contingencies concerning restrictions on the use of the land sought to be condemned were barriers to the right to exercise the power of eminent domain. The Barnards maintained “that until IP-ALCO receives the permit of approval and has complied with all of the regulations pertaining to the ultimate use for which the land is sought[,] then a contingency exists which precludes a present necessity for the condemnation.” Id. at 314, 371 N.E.2d at 412. Our court disagreed. Citing to Chambers, this court held that “IP-ALCO did not need a permit from the Aeronautics Commission ... before it could exercise its power of eminent domain.” Id. at 315, 371 N.E.2d at 413. Our court determined that since the necessity for a public use was clearly demonstrated, IPALCO’s authority for the condemnation was properly exercised. Id. at 317, 371 N.E.2d at 413.

Indiana Code section 32-24-1-5.8 recognizes INDOT’s authority “to acquire a parcel of land or property right for the construction, reconstruction, improvement, maintenance or repair of a: (a) state highway; or (b) toll road project or toll bridge project. Furthermore, INDOT or a “highway authority may acquire private or public property and property rights for limited access facilities and service roads, ... by gift, devise, purchase, or condemnation for the laying out, widening, or improvement of highways and streets within their respective jurisdictions.” Ind.Code § 8-23-8-3. These statutes vest discretion in INDOT such that if, in its judgment, the real estate sought to be condemned is necessary for the use of the highways and streets, INDOT has the power to appropriate and condemn such real estate. INDOT’s judgment as to necessity of appropriating this land for the I-69 Project cannot be questioned or superseded by the judgment of this court. See Barnard, 175 Ind.App. at 312, 371 N.E.2d at 411 (courts are not to infringe upon administrative act of determining necessity or reasonableness of decision to appropriate and take land); Cemetery Co., 236 Ind. at 188, 139 N.E.2d at 546 (same).

In the instant case, the federal statutes upon which the Knotts’ objections depend (NEPA, CAA and Section 4(f) of the Transportation Act) do not concern the acquisition of property, but instead are related to collateral issues concerning the 1-69 Project. The 1-69 Project is not under review in this eminent domain action. While we recognize that these federal statutes provide important environmental protections and may require the State or INDOT to take certain steps prior to the commencement of construction of the 1-69 Project, we hold that the federal statutes at issue have no bearing on the condemnation proceeding itself. The trial court did not err in striking the Knotts’ objections or in entering the Order of Appropriation. While we affirm the State’s authority to take the Knotts’ property, we regret the hardship that this condemnation may cause the Knotts, notwithstanding the payment of just compensation.

Affirmed.

BAKER, J., and MAY, J., concur.

      . We note that the 1-69 Project is in fact under review in a number of cases, some of which are: Hoosier Environmental Council v. U.S. Army Corps of Engineers, No. 1:11-CV-0202-LJM-DML, 2012 WL 3028014 (S.D.Ind. July 24, 2012); Citizens for Appropriate Rural Roads, Inc. v. LaHood, No. 1:1 1-CV-1031-SEB-DML, 2012 WL 442747 (S.D.Ind. Feb. 10, 2012); Citizens for Appropriate Rural Roads, Inc. v. LaHood, No. 1:11-CV-01031—SEB-DML, 2012 WL 442751 (S.D.Ind. Feb. 10, 2012); and Hoosier Environmental Council v. U.S. Department of Transportation, No. 1:06-CV-1442-DFH-TAB, 2007 WL 4302642 (S.D.Ind. Dec. 10, 2007).


source: Caselaw Access Project

author: DICKSON, Chief Justice. DAVID, J., MASSA, J.,

license: Public Domain

text:
    Engelica E. CASTILLO, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
    No. 45S00-1102-LW-110.
    Supreme Court of Indiana.
    July 31, 2012.

      Maree Gonzalez, Jr., Dyer, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, James B. Martin, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   DICKSON, Chief Justice.

Prosecuted for the heinous death of Jada Justice, her two-year-old cousin, Engelica Castillo was convicted of one count of Murder, two counts of class A felony Neglect of a Dependent, one count of class A felony Battery, and one count of class A misdemeanor False Informing. She was sentenced to life imprisonment without the possibility of parole for Murder plus a total of five additional years for the other crimes. On direct appeal, she challenges her sentence of life without parole for Murder, asserting two claims: (1) sentence inappropriateness and (2) prose-cutorial misconduct during the sentencing phase of her trial. For reasons expressed below, we conclude that the appropriate sentence for this defendant’s conviction for Murder is a term of sixty-five (65) years.

The dead body of two-year-old Jada Justice was recovered from a swampy body of water near LaPorte, Indiana, on June 24, 2009. At the time of her death, Jada was staying with her mother’s first cousin, Engelica Castillo, and Castillo’s then-boyfriend, Timothy J. Tkachik. According to the testimony of Castillo and of Tkachik, Jada died on June 13, 2009, while riding in Tkachik’s vehicle or shortly thereafter. The exact cause of death was disputed at trial. Additional facts will be supplied as necessary.

On June 26, 2009, the State charged the defendant and Tkachik each with (1) Murder, a felony under Indiana Code Section 35-42-1-1, (2) two counts of Neglect of a Dependent as a class A felony under Indiana Code Section 35-46-1-4, (3) Battery as a class A felony under Indiana Code Section 35-42-2-1, and (4) False Informing as a class A misdemeanor under Indiana Code Section 35-44-2-2. On September 18, 2009, the State amended the charges against the defendant, reducing the Battery count to a class D felony and requesting that a sentence of life without the possibility of parole be imposed on the defendant for the Murder charge based on the fact that the victim was less than 12 years of age at the time of her death. Tkachik entered into a plea agreement with the State on June 21, 2010, whereby he pled guilty to two counts of class A felony Neglect of a Dependent and agreed to cooperate in the defendant’s prosecution and testify against her at trial. In exchange, the State agreed to dismiss the counts charging Tkachik with Murder, class A felony Battery, and False Informing and agreed to request a sentence of no more than 50 years for each count with any sentences to be served concurrently. The defendant, Castillo, was tried before a jury and found guilty on all counts. At the sentencing phase of her trial, the jury recommended a sentence of life without the possibility of parole. Accordingly, the trial court sentenced the defendant to the Indiana Department of Corrections for life without the possibility of parole for the count of Murder, for an additional two years for each count of Neglect of a Dependent, and for an additional one year for the count of False Informing. The count of Battery was vacated. All sentences were ordered to be served consecutively. The defendant then filed- this direct appeal on October 12, 2010.

1. Appropriateness of Life without the Possibility of Parole

The defendant first contends that her sentence for Murder — life imprisonment without the possibility of parole — is inappropriate in light of the maximum possible sentence — fifty-years’ imprisonment— faced by her codefendant, Tkachik, as a result of his plea agreement.

The Indiana Constitution grants this Court “in all appeals of criminal cases, the power to review all questions of law and to review and revise the sentence imposed.” Ind. Const, art. 7, § 4. We may exercise this power even where the trial court has acted within its lawful discretion. Buchanan v. State, 767 N.E.2d 967, 972 (Ind.2002). This power “reserv[es] for the appellate court the chance to review the matter in a climate more distant from local clamor.” Serino v. State, 798 N.E.2d 852, 856-57 (Ind.2003). We have chosen to implement this constitutional power using Indiana Appellate Rule 7(B). Childress v. State, 848 N.E.2d 1073, 1079 (Ind.2006); Buchanan, 767 N.E.2d at 972-73. This rule provides that “[t]he Court may revise a sentence authorized by statute if,- after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” App. R. 7(B).

It is the nature of the offense, not the character of the defendant, which provides the strongest consideration in favor of revising the defendant’s sentence in this case. At trial, the jury was only presented with two possible grounds on which it could convict the defendant of Murder: (1) that the defendant knowingly or intentionally killed the victim or (2) that the defendant aided, induced, or caused the commission of Murder by another, namely the defendant’s boyfriend. Of these two alternative grounds, we find that the evidence was insufficient for a reasonable jury to conclude that the defendant knowingly or intentionally killed the victim but that it was sufficient for the jury to find her guilty as an accomplice.

With respect to the nature of the crime, the evidence most favorable to the defendant’s sentence reveals the following: At the time of the events leading to this case, the victim was staying with the defendant and the defendant’s boyfriend at their home. The victim was scheduled to stay there from June 8 through June 21 of 2009. The first few days of the victim’s visit were relatively • unremarkable. On the morning of June 12, the defendant and her boyfriend discovered that the victim had taken a packet of powdered Hawaiian Punch mix and strawberries out of their refrigerator without asking their permission. The defendant responded by yelling at and spanking the victim and then wrapping twine around the refrigerator later in the day. The defendant’s boyfriend, who Was present during nearly all of the events in question, testified that the rest of that day was uneventful. The next morning, on June 13, the defendant discovered that the victim had locked herself in her bedroom. After unlocking the door, the defendant found that the victim had made a mess on the bedroom floor with syrup and powdered Hawaiian Punch packets that the victim had found in the kitchen. Again, the defendant yelled at and spanked the victim and then cleaned up the mess, pushing the victim aside roughly as she cleaned.

Later in the day, around lunchtime, the defendant gave the victim a pre-packaged lunch to eat. The victim did not eat much of it, mostly playing with the food and throwing pieces of it to the dog. This made the defendant angry. As punishment, the defendant put the victim in a corner in the victim’s bedroom and then, after cleaning the mess in the kitchen, sat on the couch with her boyfriend in the living room. The defendant could see the victim in her bedroom from the couch and, soon after sitting, noticed that the victim was no longer standing but instead sitting down in the corner and playing with toys. The defendant then returned to the bedroom, spanked the victim, and attempted to force her to stand upright by yanking her and holding her upright by her arms. The defendant then went back to the living room and again sat on the couch. Approximately five minutes later, the defendant again became irritated with the victim and returned to the bedroom. The facts are not clear as to what exactly occurred during this confrontation, but the defendant’s boyfriend testified that he could hear the defendant speaking in an irritated tone to the victim when the door was closed and that, at one point when the door was open, he saw the defendant holding the victim by the hair, poking her in the body, and slapping her. At one point during this confrontation, the defendant brought the victim into the living room and, with her boyfriend’s help, spanked the victim several times on her bare bottom using a belt. Approximately one and one-half hours after this confrontation began, the defendant came out of the victim’s bedroom and told her boyfriend that the victim had hit her head on a table in the bedroom when the defendant had slapped her. The boyfriend testified that the victim sustained a small cut above her right eye that bled only a small amount and that the defendant put a small bandage over it. He also testified that he noticed red marks on the victim’s face and bruises on her buttocks around that same time.

Shortly after the victim hit her head, the defendant’s boyfriend became frustrated by the ongoing confrontation between the victim and the defendant. He ran into the victim’s bedroom and “knuckled” the victim in the head “pretty hard” four to six times “hoping that everything would stop after that.” Tr. at 334-35. Afterward, the defendant continued to hold the victim by the hair, yanking and pushing her, and eventually tied the victim to a chair with her boyfriend’s belts. She initially placed one belt around the victim’s waist and another around her neck but removed the belt from around the victim’s neck after her boyfriend told her to do so. Still frustrated with the situation, the defendant’s boyfriend then went to the gas station. When he arrived home, he heard “boom, boom, boom, boom” coming from the victim’s bedroom, but he couldn’t see what was causing the noise because the bedroom door was shut. Tr. at 341. He then made plans to go to Chicago that evening to purchase heroin.

Approximately thirty minutes later, the defendant and her boyfriend left for Chicago to retrieve the heroin. The boyfriend testified that, while they were getting the victim ready to leave, he noticed that the victim had a bruise on her face, that she seemed “out of it,” and that she was unable to hold her bottle while sitting in her carseat. Tr. at 344. The defendant wrapped the victim in a blanket to hide the marks on her body because they were going to take a friend with them to Chicago. Shortly after leaving the house, while driving on Interstate 94, the boyfriend noticed that the victim’s head was leaning down towards her chest with her eyes closed. He then jumped in the back seat, found that she was not breathing, and attempted to administer CPR as the defendant pulled off the road. At that point, the defendant and her boyfriend switched places, and the defendant continued CPR while her boyfriend drove the truck back to their house. Once they arrived home, they stopped administering CPR and left the victim in the backseat of the truck covered with a tarp. Sometime later, they set off for Chicago again, without the victim. The precise timing of the victim’s death is unclear, but both the defendant and her boyfriend testified that she was dead when they returned from Chicago later that night.

To be convicted of Murder as the principal, the defendant must knowingly or intentionally kill another person. Ind. Code § 35-42-1-1. There must be evidence either that it was the defendant’s “conscious objective” to kill the victim, Burkhalter v. State, 272 Ind. 282, 285, 397 N.E.2d 596, 598 (1979); see also Ind.Code § 35-41-2-2(a) (“A person engages in conduct ‘intentionally’ if, when he engages in the conduct, it is his conscious objective to do so.”), or that the defendant was aware of a high probability that his or her actions would result in the death of the victim, Young v. State, 761 N.E.2d 387, 389 (Ind.2002); Burkhalter, 272 Ind. at 285, 397 N.E.2d at 598; see also Ind.Code § 35-41-2-2(b) (“A person engages in conduct ‘knowingly’ if, when he engages in the conduct, he is aware of a high probability that he is doing so.”).

As noted above, these facts do not support a conviction of the defendant for Murder as a principal but only as an accomplice. Notwithstanding the defendant’s terrible treatment of the child, none of her actions were causally linked to either cause of death offered to explain the victim’s death at trial. Here, the evidence shows only that the defendant (1) yelled at the victim repeatedly, (2) spanked the victim with and without a belt several different times, (3) slapped the victim, (4) poked the victim, (5) shoved and pushed the victim, and (6) yanked the victim by the hair and arms. As an initial matter, we note that none of these actions, on their face, evince a conscious objective to kill the victim nor are any of these actions in isolation associated with a high probability of death. It is presumably possible that in the aggregate a physical battering of a child similar to that which occurred in this case could cause the death of a small child. However, there was no evidence to support such an inference in this case. Neither of the medical experts who testified to the cause of death contended that the victim’s death was caused by or could have been caused by the yelling, spanking, slapping, poking, shoving, pushing, or yanking of the body and hair inflicted by the defendant. The doctor who performed the autopsy testified that the sole cause of death was blunt force injuries of the head with the depressed skull fracture being the primary injury. The defendant’s medical expert testified that the cause of death was asphyxiation caused by unconsciousness leading to an obstructed airway or some other interference with the child’s breathing. Yet, we cannot conclude that any of the defendant’s actions — yelling, spanking, slapping, poking, shoving, pushing, and yanking — would make a person aware, either in isolation or in the aggregate, of a high probability of death from blunt force injury of the head or asphyxiation.

The only injury to the victim caused by the defendant’s actions that was identified as a potential cause of the victim’s death was the fact that the victim hit her head on a table after being slapped-by the defendant. The- autopsy doctor testified that falling on the distinct edge of an object could cause a blunt force head injury sufficient to have killed the victim in this case. There was no evidence, however, that the defendant intentionally or knowingly caused the victim to hit her head on the table. The evidence only suggested that the injury was an accident. The speculative connection between the slap and the victim striking her head on the table is not substantial evidence of probative value proving that, in administering such slap, the defendant should have been aware of a high probability of resulting death.

To be convicted of Murder as an accomplice, the defendant must knowingly or intentionally aid, induce, or cause the commission of a murder by another. Ind. Code § 35-41-2-4. A defendant may be charged as the principal but convicted as an accomplice. Jester v. State, 724 N.E.2d 235, 241 (Ind.2000); Wise v. State, 719 N.E.2d 1192, 1198 (Ind.1999). Generally there is no distinction between the criminal liability of an accomplice and a principal, Wise, 719 N.E.2d at 1198, although evidence that the defendant participated in every element of the underlying offense is not necessary to convict a defendant as an accomplice. Vitek v. State, 750 N.E.2d 346, 352 (Ind.2001). “There is no bright line rule in determining accomplice liability; the particular facts and circumstances of each case determine whether a person was an accomplice.” Id. at 353. We consider four factors to determine whether a defendant acted as an accomplice: (1) presence at the scene of the crime; (2) companionship with another at scene of crime; (3) failure to oppose commission of crime; - and (4) course of conduct before, during, and after occurrence of crime. Id. at 352. That a defendant -was present during the commission of a crime -and failed to oppose the crime is not sufficient to convict her. Id. But, “presence at and acquiescence to a crime, along with other facts and circumstances” may be considered. Id. at 352-53.

In this case, there was sufficient evidence- presented at trial from which the jury could have concluded beyond a reasonable doubt that the defendant’s boyfriend murdered the victim. The defendant’s boyfriend, Tkachik, admitted to abusing the victim on the day of her death, saying that he “knuckled” the victim in the head “pretty hard” four to seven times. Tr. at 334-35. From this, the jury could reasonably have concluded that the defendant’s boyfriend was aware of a high probability that punching a child in the head could kill the' child. The evidence most favorable to a conviction based on accomplice liability demonstrates that the defendant was present when her boyfriend punched the victim in the head, that she did not object to his actions, and that she continued to associate with him in an amicable manner after the incident. More importantly, the defendant attempted to conceal the victim’s injuries in preparation for the trip to Chicago and failed to insist on or seek professional medical treatment for the victim at any time. Additionally, after the victim’s death, the defendant assisted her boyfriend in disposing of the child’s body and staged a fake abduction at a nearby gas station in an attempt to provide a cover story to explain the victim’s disappearance. In light of this evidence, we have little trouble concluding that there was sufficient evidence for a jury to conclude that the defendant aided another in the commission of a murder.

Nevertheless, as we have acknowledged, “[w]hile an accomplice may be found guilty of the crime largely executed by his principal, it does not follow that the same penalty is appropriate.” Martinez Chavez v. State, 534 N.E.2d 781, 735 (Ind.1989). We believe this sentence of life without the possibility of parole is inappropriate under the circumstances of this case, particularly given that the defendant was merely complicit in her boyfriend’s conduct but did not actively participate in or plan the killing. We have accorded a similar degree of leniency to defendants whose role in a murder was substantially less blameworthy than the principal’s, reducing the length of the defendant’s sentence. See, e.g., Baxter v. State, 727 N.E.2d 429, 436-37 (Ind.2000) (revising 65-year sentence of defendant convicted of Murder as accomplice to 55 years because of defendant’s good character and because defendant did not expect “at the outset of the evening that his association with [the principals] would result in any crime”); Edgecomb v. State, 673 N.E.2d 1185, 1199-1200 (Ind.1996) (revising defendant’s 60-year sentence to 40 years in part because defendant did not encourage the murder, was not present during the murder, and did not actually kill the victim).

In this case, the evidence most favorable to conviction makes clear that the defendant’s role in causing the fatal injuries was indirect. Without a doubt, the physical battering inflicted by the defendant was excessive and unacceptable, yet, as discussed above, none the acts of physical abuse inflicted by the defendant are associated with a high probability of death. These circumstances lead us to conclude that for this defendant a sentence to a term of years is more appropriate than a sentence of life imprisonment without the possibility of parole. That the defendant continued to physically discipline the victim after she was punched in the head by Tkachik, that the defendant seemingly showed no concern for the victim’s well-being prior to the time when she stopped breathing, and that the defendant attempted to conceal the victim’s death and did not assist law enforcement with the investigation reflect negatively on the defendant’s character and militate in favor of a sentence above the advisory sentence for Murder. Weighing all of these circumstances together, we conclude that the appropriate sentence for this defendant is the maximum term of years for Murder— sixty-five (65) years.

2. Prosecutorial Misconduct

The defendant also challenges her sentence of life without parole on the ground that the trial prosecutor engaged in prosecutorial misconduct at the penalty phase of her trial and that these actions constituted fundamental error. She focuses upon the following statements made by the prosecutor during closing arguments at the penalty phase of the trial:

We are here because of that little girl and do not compare what you’re evaluating, the aggravating factor and these mitigating factors that the defense has brought. Do not compare Engelica Castillo’s pathetic miserable childhood to the life of that two-year old. Her own family didn’t want her. The Courts couldn’t deal with her. Everything that they said — I mean, she’s a problem. She is a problem. She is uncontrollable.... She never deserves to be out.... As sad an tragic as it may be, it has turned her into a violent, vicious, manipulative — you saw her behavior, she is not mild and meek. She is defiant. She runs away, she stands up for herself. She’s a fighter.... Suspensions for fighting, for pushing. For. pushing a student into a table. 2002, its in here, punching a student.... That is who she is, what you saw is who she is.
She pleads for your mercy to give her some sort of life should she get out. I ask you to give her and show her that same mercy that she showed that two year old. She beat her with a belt because that’s how she grew up, because that’s what she knows, you are a product of your environment. She’s not this little innocent shrinking violet, “Woe is me, everybody’s against me.” She is an abuser, she is violent. She is vicious ....
... Because of her, Jada Justice will never go to school, ride a bike, get a driver’s license, have a first kiss, go to the prom, graduate, put on a wedding dress — never. Because of her actions and her behavior and the way she is. All that is gone. She is broken. She has been broken since she was a kid and there is no fixing her.

Tr. at 1856-59. The defendant contends that these statements urged the jury not to compare the aggravating and mitigating circumstances in deciding whether to impose a sentence of life without parole contrary to Indiana law and encouraged the jury to impose such sentence based upon the defendant’s alleged unsavory character. The defendant did not object to these statements at trial and thus challenges them in this appeal as fundamental error.

We evaluate a properly preserved claim of prosecutorial misconduct using a two-step analysis. We first determine whether misconduct occurred, then, if there was misconduct, we assess “whether the misconduct, under all of the circumstances, placed the defendant in a position of grave peril to which he or she would not have been subjected” otherwise. Cooper v. State, 854 N.E.2d 831, 835 (Ind.2006). To preserve a claim of prosecutorial misconduct, the defendant must ask the trial court, at the time the misconduct occurs, to admonish the jury or move for a mistrial if admonishment is inadequate. Id. Failure to request an admonishment or a mistrial waives the claim, unless the defendant can demonstrate that the misconduct rises to the level of fundamental error. Id. Fundamental error is a narrow exception intended to place a heavy burden on the defendant. It requires the defendant to establish that the misconduct “[made] a fair trial impossible or constituted clearly blatant violations of basic and elementary principles of due process” or that the misconduct “presented] an undeniable and substantial potential for harm.” Benson v. State, 762 N.E.2d 748, 756 (Ind.2002); accord Cooper, 854 N.E.2d at 835.

The prosecutor, during closing arguments at the sentencing phase of trial, actually told the jury not to compare the mitigating and aggravating factors. Tr. at 1856-57 (“[D]o not compare what you’re evaluating, the aggravating factor and these mitigating factors that the defense has brought. Do not compare Engelica Castillo’s pathetic miserable childhood to the life of that two-year old.”) Yet, Indiana law expressly requires the jury to make such a comparison before imposing a sentence of life without parole. Ind.Code § 35-50-2-9(Z) (“Before a sentence may be imposed under this section, the jury ... must find that: ... any mitigating circumstances that exist are outweighed by the aggravating circumstance or circumstances.”). Under the Rules of Professional Conduct, which are one means by which we assess the appropriateness of a prosecutor’s conduct, see Swope v. State, 268 Ind. 148, 155, 325 N.E.2d 193, 196 (1975) (evaluating prosecutor’s alleged misconduct with reference to the then-in-force Code of Professional Responsibility and finding no misconduct); see also Cooper, 854 N.E.2d at 835 (“Whether a prosecutor’s argument constitutes misconduct is measured by reference to case law and the Rules of Professional Conduct.”), a prosecutor has a duty to truthfully represent the law and facts of a case to the jury. Ind. Professional Conduct Rule 3.3(a)(1) (“A lawyer shall not knowingly: (1) make a false statement of fact or law to a tribunal.... ”). We believe that the prosecutor’s misstatement constituted misconduct because the prosecutor urged the jury to act contrary to law.

In addition to misstating the law on sentencing, the prosecutor repeatedly implored the jury to consider the defendant’s unsavory character, specifically:

The Courts couldn’t deal with her.... I mean, she’s a problem. She is a problem. She is uncontrollable ... she never should be out. She never deserves to be out in public.... As sad and tragic as it may be, it has turned her into a violent, vicious, manipulative — you saw her behavior, she is not mild and meek. She is defiant.... She’s a fighter.... That is who she is, what you saw is who she is. What those papers tell you is who she is.
... She’s not this little innocent shrinking violet, “Woe is me, everybody’s against me”. She is an abuser, she is violent. She is vicious_
Do not give her the mercy she asks for now. She doesn’t deserve it, and frankly, she doesn’t deserve to be walking around in public at all.... She is broken. She has been broken since she was a kid and there is no fixing her.
How many chances do you have to give someone? How many? Everyone has tried and it has failed. She is out of chances....

Tr. at 1857-58. In its entirety, this colloquy on the defendant’s character comprised nearly one-third of the prosecutor’s closing statements to the jury. We have made clear in other cases that it is “misconduct for a prosecutor to request a jury to return a death penalty or life without parole recommendation for anything other than that the mitigating factors are outweighed by the aggravating factor or factors.” Cooper, 854 N.E.2d at 841. And, under the statute, the only aggravating factor that the jury could consider in this case was that the victim was less than twelve years of age at the time she was murdered. See Ind.Code § 35-50-2-9(b). None of the statutory factors include the character of the defendant. See generally Ind.Code § 35-50-2-3(b).

It could be contended that, standing alone, the prosecutor’s erroneous statement of law would present little threat of prejudice because it was only a small part of a much longer exposition by the prosecutor in closing argument, was not repeatedly reiterated, and was countered by a correct statement of the law in the final instructions. But, when it is juxtaposed with the prosecutor’s thinly-veiled call for the jury to sentence the defendant to life without parole because of her unsavory character, we cannot ignore the substantial potential for harm to the defendant’s right to be sentenced fairly in accordance with the law. Telling the jury not to balance the aggravators and the mitigators touched on the central task of the jury in deciding whether to impose life without parole. The prosecutor not only urged the jury not to so weigh the factors but also asked the jury to consider additional allegedly aggravating circumstances not permitted by the statute. Although the defendant’s trial counsel did not contemporaneously object, the magnitude of this prosecutorial overreaching not only placed the defendant in a position of grave peril to which she should not have been subjected but also presented an undeniable and substantial potential for an erroneous jury sentencing recommendation. For her claim of prosecutorial misconduct in the penalty phase, the defendant asks that we vacate her life sentence and either “remand to impose a sentence of years, or imposition of a sentence of years by this Court.” Appellant’s Br. at 17. Because we have in Part 1 of this opinion concluded that the defendant’s sentence for the crime of murder should be revised from life without parole to a term of sixty-five years, no further relief is warranted for the defendant’s prosecutorial misconduct claim.

Conclusion

We conclude that the appropriate sentence for the defendant’s murder conviction is imprisonment for a term of sixty-five (65) years rather than life imprisonment without the possibility of parole. This cause is remanded for entry of the revised sentence on the conviction for Murder.

SULLIVAN, J., concurs.

RUCKER, J., concurs in result.

DAVID, J., concurs in result with separate opinion.

MASSA, J., dissents with separate opinion.

DAVID, J.,

concurring in result.

The majority concludes that the “facts do not support a conviction of the defendant for Murder as a principal but only as an accomplice.” Op. at 465. In essence, the majority believes that Castillo did not knowingly or intentionally kill her two-year-old cousin. Although I agree that the evidence does not support a finding that Castillo intentionally killed the victim, I believe that there was sufficient evidence for a jury to find that Castillo knowingly killed the victim.

The evidence showed that over the course of at least five hours, Castillo repeatedly beat the two-year-old victim in some way, shape, or form. The evidence further showed that Castillo told her boyfriend that the victim hit her head on a table after Castillo slapped the victim. The likely cause of death to the victim was blunt force trauma to the head. It was reasonable for the jury to infer that Castillo either (1) was aware that her slapping the victim in close proximity to the table could easily result in the victim hitting her head on the table or (2) was lying when she stated it was an accident that the victim hit her head on the table.

Furthermore, Castillo’s boyfriend testified that after the table incident there was another incident that involved Castillo and the victim in the victim’s bedroom. He testified that there were “boom, boom, boom, boom” noises coming from the bedroom, where Castillo had tied the victim to a chair. Op. at 464. Although he could not see what was causing the noises, he testified that thirty minutes later, he “noticed that the victim had a bruise on her face, that she seemed ‘out of it,’ and that she was unable to hold her bottle while sitting in her carseat.” Op. at 464. It was reasonable for the jury to infer that (1) the noises were the result of Castillo beating the victim behind closed doors, given the victim’s state shortly afterward and that (2) given everything that had already happened that day, Castillo was aware that additional beating would likely cause the death of a two-year-old.

Ultimately, I believe a jury could have properly found that Castillo, especially when her actions are viewed in the aggregate, was aware that her conduct would result in the death of her two-year-old cousin. A sentence revision should not be based on the nature of the offense, which was clearly heinous.

However, I do not object to revising the sentence to a term of sixty-five years for a host of other reasons: Castillo’s difficult upbringing, her boyfriend’s participation in the murder, the terms of the boyfriend’s plea agreement, and the prosecutorial misconduct.

MASSA, J.,

dissenting.

I agree with the majority’s conclusion that the evidence supported Castillo’s conviction for murder as an accomplice, but dissent because I believe there was also substantial evidence for the jury to conclude Castillo was the principal actor.

As the majority correctly states, a person may be convicted of murder where the evidence shows he or she “was aware of a high probability that his or her actions would result in the death of the victim.” Op. at 465; accord Williams v. State, 749 N.E.2d 1139, 1141 (Ind.2001). But I part ways where it “cannot conclude that any of the defendant’s actions — yelling, spanking, slapping, poking, shoving, pushing, and yanking — would make a person aware, either in isolation or in the aggregate, of a high probability of death from blunt force injury of the head or asphyxiation.” Op. at 465-66.

First, I do not think such a level of precision in formulating a defendant’s intent to kill — that the defendant be aware of the particular manner and means of the fatal blow — is required by our case law. The evidence just had to show that Castillo was aware of a high probability that her actions would result in Jada’s death — not death by hitting her head on a table. And in making this determination, “the jury may consider the duration and brutality of a defendant’s actions, and the relative strengths and sizes of a defendant and victim.” Williams, 749 N.E.2d at 1141. Intent to kill may also be inferred “where blows of magnitude are repeated,” and “from the nature of the attack and the circumstances surrounding the crime.” Nunn v. State, 601 N.E.2d 334, 339 (Ind.1992).

Here, the evidence introduced at trial showed that Castillo brutally abused Jada over the course of a day, including numerous strikes to the face, pushing, and yanking on her hair, some of which occurred while Jada was restrained. The evidence also showed that Castillo sent Tkachik to the gas station to get duct tape and, upon his return, took that duct tape into the bedroom with Jada. Tkachik then testified to hearing several “boom” sounds coming from the room. It was after this ominous incident — at the end of a day of physical abuse — that Castillo and Tkachik put Jada in the car and noticed she was not breathing.

Were Jada an adult, perhaps this level of assault — while still heinous — might not raise an awareness of a high probability of death. But Jada was two years old, and I struggle to believe that even an eighteen-year-old carrying out an attack of this scope was not aware that there was a high probability that it could end in death. There was an enormous disparity in size and strength between Jada and Castillo, and this was a protracted and brutal assault with repeated blows of magnitude characterized by escalating viciousness toward a helpless two-year old child — and because of it, Jada died. I believe this was sufficient to sustain Castillo’s conviction for murder, regardless of Tkachik’s conduct.

As a result, I also disagree with the majority’s decision to revise Castillo’s sentence because it rests upon the conclusion that Castillo “was merely eomplicit in her boyfriend’s conduct but did not actively participate in or plan the killing.” Op. at 467. Even absent the evidence discussed above, Castillo herself says otherwise through her appeal. In fact, this concession is the very basis for her appeal of her sentence: she received a sentence of life without the possibility of parole whereas Tkachik faced a sentencing range between twenty and fifty years. Appellant’s Br. at 11 (“This recognition reveals why the disproportionate sentences renders [sic] Castillo’s life sentence inappropriate.”).

In my view, however, while we may consider the difference between Castillo’s sentence and Tkachik’s sentence, we are under no obligation to do so. Appellate Rule 7(B) requires consideration only of the sentence, the nature of the offense, and the character of the offender. I do not believe this is a case for comparison between co-defendants ’ sentences because Tkachik’s reduced sentencing range came only as a result of his agreement to plead guilty to lesser charges. In exchange for this, the State secured Tkachik’s cooperation and testimony — both of which appear to have been necessary for Castillo’s conviction.

This prosecutorial approach is not surprising, given that the only remaining, living witnesses to the entire course of eon-duct were Tkachik and Castillo. Thus, the only way for the State to prove who did what was to secure one defendant’s testimony against the other, in exchange for a lighter sentence. This Court has just recently noted this technique is sometimes necessary to present “a relatively clear picture of an otherwise-muddy situation.” Cain v. State, 955 N.E.2d 714, 719 (Ind.2011) (affirming a sentence of life without the possibility of parole for one of four defendants tried separately for one murder when the case required the prosecutor to “seek plea agreements in which she sought lesser charges in exchange for the defendant’s testimony.”). Divide and conquer is a fundamental crime-solving strategy when more than one suspect is involved. When one blinks first and gets the benefit of his bargain, it does not render his co-defendant’s fuller punishment disproportionate and should not serve as the basis for appellate revision. Our jurisprudence should not undermine acceptable stationhouse bargaining tactics.

Even taking the majority’s view of culpability, I still believe a sentence of life without parole is not inappropriate on these facts. The jury found the sole charged aggravator — that the victim was under the age of twelve — beyond a reasonable doubt. The jury also found that Castillo proved a number of mitigating factors — including her childhood experience, family situation, and drug use — but still believed the aggravator outweighed the mitigators. I see no reason to disturb this decision under our Rule 7(B) analysis when considering the nature of the offense (a vicious litany of abuse on a defenseless and utterly innocent victim followed by a deliberate, planned attempt to conceal the crime, deny involvement, and deceive law enforcement) and the character of the offender (a drug-abusing teenager with a troubled childhood who exhibited hostility to authority and callous disregard for her victim and was hardly the manipulated accomplice she now claims to be).

Finally, with respect to Castillo’s claim that the State’s commentary during its closing arguments at her sentencing was improper, I concur with the majority’s determination that there was misconduct. It was inappropriate for the prosecutor to imply that the jurors should not compare the aggravating and mitigating factors, or that they should impose a sentence based on anything other than those aggravating and mitigating factors.

That said, I do not believe this misconduct rises to the level of fundamental error. Much of Castillo’s strategy at sentencing appears to have been aimed at creating an impression in the minds of the jurors that she was a product of her broken childhood and the manipulative mind of Tkachik. The State’s response would necessarily have been to try to decrease the weight the jury afforded this impression, and that is how I interpret most of the commentary cited by the majority. While some of it is inappropriate, in my view much of it is directly aimed at diminishing the credibility of Castillo’s mitigating factors. This was not an inappropriate stratagem for the State to employ. Moreover, as the majority says, the correct law was provided in the final instructions, and in the absence of contrary evidence we presume the jury follows those instructions. Duncanson v. State, 509 N.E.2d 182, 186 (Ind.1987).

Had Castillo objected and requested an admonishment, this might be a different question. But the fundamental error exception is not a safe harbor for defendants who -violate the contemporaneous objection rule and is therefore deliberately kept very narrow. Cooper v. State, 854 N.E.2d 881, 885 (Ind.2006). Because I think only a small amount of the prosecutor’s closing argument was inappropriate, I believe that narrow exception is not met here.

Accordingly,'! respectfully dissent.

      . Castillo was eighteen years old at the time of the crime and twenty years old at the time of her sentencing.

      . A sentence of life without the possibility of parole can only be sought for murder where the State identifies the existence of at least one statutorily defined aggravating circumstance. Ind.Code § 35-50-2-9(a). One such aggravating circumstance is that "The victim of the murder was less than twelve (12) years of age.” Id. § 35-50—2—9(b)( 12).

      . As of the date of Castillo's sentencing, Tka-chik had not yet been sentenced.

      . Pursuant to Indiana Appellate Rule 4(A)(1)(a), we have "mandatory and exclusive jurisdiction” over "Criminal Appeals in which a sentence of death or life imprisonment without parole is imposed under Ind.Code § 35-50-2-9....”

      . The independent nature of the review and revise power granted by Article 7, Section 4, is apparent from the legislative history of the provision:
      The framers of the constitutional reform of which section 4 was a part provided explicitly for reference to certain historical materials in interpreting its meaning: "The report of the Judicial Study Commission and the comments to the article contained therein may be consulted by the Court of Justice to determine the underlying reasons, purposes, and policies of this article and may be used as a guide in its construction and application.” Ind. Const. art. VII, Schedule (Burns 1978 Ed.). The Commission’s report describes the origin and scope of the power to review and revise sentences contained in section 4: "The proposal that the appellate power in criminal cases include the power to review sentences is based on the efficacious use to which that power has been put by the Court of Criminal Appeals in England.” Report of the Judicial Study Commission 140 (1967). The English statute establishing the Court of Criminal Appeals set forth that court's power to review and revise sentences as follows:
      On appeal against sentence the Court of Criminal Appeal shall, if they think that a different sentence should have been passed, quash the sentence passed at the trial, and pass such other sentence warranted in law by the verdict (whether more or less severe) in substitution therefor as they think ought to have been passed, and in any other case shall dismiss the appeal.
      Criminal Appeal Act, 1907, 7 Edward 7, ch. 23, § 4(3).

        Cooper v. State, 540 N.E.2d 1216, 1218 (Ind.1989). For a further explication of the history of Article 7, Section 4, in relation to the criminal law and procedure of England, see McCullough v. State, 900 N.E.2d 745, 747-50 (Ind.2009).

      . Another basis for liability was potentially implicated by the fact that the defendant and her boyfriend failed to seek professional medical assistance for the victim when they realized she had stopped breathing. Under Indiana Code Section 35-41-2-l(a), a person can commit an offense by failing to act "only if [s]he has a statutory, common law, or contractual duty to perform the act.” In this case, no evidence of any such affirmative duty was offered, nor was such a duty alleged in the charging information, nor was any such duty included in the jury instructions. Therefore, the defendant’s failure to act could not have been the basis of the jury’s verdict. Even if this basis for liability had been properly before the jury, we would still conclude that the defendant's Murder conviction should be reduced from life without the possibility of parole to a term of years in light of the undisputed evidence that the defendant attempted to administer CPR to the victim. While these attempts to help are not heroic, they weigh heavily against a conclusion that the defendant's actions exhibited a degree of depravity sufficient to warrant a sentence of life without parole.

      . Where the sufficiency of the evidence is at issue, the question is whether "there is substantial evidence of probative value such that a reasonable trier of fact, could have concluded the defendant was guilty beyond a reasonable doubt.” Bailey v. State, 907 N.E.2d 1003, 1005 (Ind.2009). We consider only the evidence favorable to the conviction and any reasonable inferences that can be drawn therefrom. Id. We do not reweigh the evidence nor judge the credibility of witnesses:' Id.

      . Our conclusion here should not be construed as a general prohibition on the imposition of a sentence of life without parole where the defendant is only convicted as an accomplice to murder. Each case must be reviewed in light of the unique set of circumstances underlying conviction.

      . Indiana Code Section 35-50-2-3 establishes the sentencing range for Murder as a term between forty-five (45) and sixty-five (65) years with an advisory sentence of 55 years. Ind.Code § 35-50-2-3(a).

      . A tribunal is "a court, an arbitrator, or any other neutral body or neutral individual making a decision, based on evidence presented and the law applicable to that evidence, which decision is binding on the parties involved.” Prof. Cond. R. 1.0(m).

      . As we explained recently, closing arguments are rightly received by the jury as partisan advocacy, not impartial statements of the law, and thus are likely to have little effect on the jury’s understanding of the law. See LaPorte Cmty. Sch. Corp. v. Rosales, 963 N.E.2d 520, 526 (Ind.2012) ("Thus, whether the closing argument of one of the lawyers may have been an attempt to clarify an instruction ambiguity, the jury would properly have received such statements as advocacy on behalf of the lawyer's client. Such closing arguments of counsel cannot provide us with any assurance that the jury understood the lawyer’s statements to clarify, supersede, or countermand the instructions given by the trial judge.”).

      . Accord Childers v. State, 719 N.E.2d 1227, 1230 (Ind.1999) (finding evidence sufficient to sustain a murder conviction where the three-year-old victim was in the adult defendant's care, a witness heard the defendant spanking the victim and yelling, the defendant admitted putting the victim across his lap and whipping him, and the victim later died of a hema-toma: "Given the disparity in size and strength between the defendant and Wesley, and the number and severity of the wounds indicating the considerable force used in striking Wesley, a reasonable jury could have found, beyond a reasonable doubt, that the defend ant was aware of a high probability that the blows he struck would result in Wesley's death.").

      . "Castillo respectfully urges that her role in the death of the child is equal to or lesser than that of Tkachik.” Appellant's Br. at 10 (emphasis added). "Hence, both Castillo and Tlcachik participated in the events leading to the death of J J. and it is very plausible that a detached, neutral appellate tribunal could reasonably conclude that they were equally responsible for the death of J.J.” Appellant’s Br. at 11 (emphasis added). "This rare case features two defendants who are as equally culpable as one could imagine .... Both defendants participated in the same series of acts resulting the death of JJ.” Appellant's Br. at 13 (emphasis added).

      . It seems as though the defendant requested that the trial court judge make independent findings with respect to the aggravating and mitigating circumstances, as well as the sentence. I express no view as to the propriety or necessity of this added step, but point out only that the judge independently reached the same conclusion as the jury with respect to Castillo’s sentence.


author: NAJAM, Judge.

text:
    Jack D. TILLER, Appellant, v. REVIEW BOARD OF the INDIANA DEPARTMENT OF WORKFORCE DEVELOPMENT, IDWD U.I. Claims Adjudication, and the Town of Walkerton, Appellees.
    No. 93A02-1110-EX-961.
    Court of Appeals of Indiana.
    July 3, 2012.
    Ordered Published Aug. 31, 2012.

      Thomas M. Dixon, Dixon, Wright & Associates, P.C., Osceola, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Janine Steck Huffman, Deputy Attorney General, Indianapolis, IN, for Attorneys for Appellees.
   OPINION

NAJAM, Judge.

STATEMENT OF THE CASE

Jack D. Tiller appeals the decision of the Review Board of the Indiana Department of Workforce Development (“the Board”) in favor of IDWD U.I. Claims Adjudication (“IDWD”) on IDWD’s claim that Tiller had falsified information to IDWD in order to receive unemployment benefits. Tiller raises two issues for our review, which we consolidate and restate as whether the Board’s decision is erroneous. We affirm.

FACTS AND PROCEDURAL HISTORY

On July 27, 2011, the Administrative Law Judge (“ALJ”) held an evidentiary hearing on IDWD’s claim that Tiller had falsified material facts in his requests for unemployment benefits. The next day, the ALJ entered the following findings of fact:

Each time the claimant applied for unemployment benefits, the claimant went online to create an account and indicated acceptance of the User Agreement. The claimant agreed to report all earnings from employment or self-employment regardless of source, including part[-]time employment. The claimant was required to agree that he must report the gross earnings of any earnings and that those earnings must be reported on the voucher for the week in which the work was performed. The claimant also acknowledged that he is responsible for protecting his password and not to give it to anyone.
For each an[d] every week the claimant filed a voucher the claimant responded “yes” to the question: “Could you have worked week ending_if work was offered to you?” The claimant certified he has if work was offered to you?” The claimant certified he has reported “any and all work, earnings, and self-employment activity for this week, even though I (the claimant) may not have yet been paid.” The claimant also certified that he has reported anything that interfered with the claimant’s ability to work full-time that week. The claimant certified that “all answers and information given in this application for benefits are true and accurate.”
A claimant cannot file a weekly claim unless that claimant has first acknowledged that he/she has received, and understood, a copy of the unemployment insurance claimant handbook.
On February 8, 2010, the claimant filed his initial claim for unemployment benefits. The claimant was assigned a benefit year ending date of January 29, 2011. For weeks ending February 6, 2010[,] through August 7, 2010, the claimant filed his weekly claim. During this entire period of time the claimant was employed as a sales associate at Advance Stores Company!,] Inc., earning $9.00 per hour. The claimant earned wages between $184.00 and $814.00 per week. On each and every weekly claim the claimant answered “no” to the question: “Did you work?” The claimant’s weekly benefit amount was $390. The claimant exhausted his claim by August 8, 2010.
Under his initial unemployment claim, the claimant was paid a total sum of $9,750. The claimant was also paid for each and every week during his initial claim the sum of $25 per week, Federal Additional Compensation.
On August 15, 2010, the claimant filed his claim for extended benefits (EUC). The claimant’s benefit year ending date remained January 29, 2011. From August 14, 2010[,] until the expiration of the claimant’s benefit year ending! ] January 29, 2011, the claimant worked four (4) weeks for DPW Transportation. The claimant also worked 23 weeks for Advance Stores Company!,] Inc[.] as a sales associate earning $9.00 per hour. During those 23 weeks the claimant earned wages between $41 and $413. The claimant was paid the sum of $390 per week extended benefits for 21 weeks, totaling $8,190. In addition thereto, the claimant received [unreadable] weeks of Federal Additional Compensation, totaling $400. Between February 8, 2010[,] and August 8, 2010[,] the claimant disclosed none of the wages earned from DPW Transportation!,] Inc[.] or from Advance Stores Company!,] Inc.
On February 6, 2011, the claimant opened his third claim and qualified for a regular claim. The claimant was assigned a benefit year ending date of January 28, 2012. Between February 6, 2011[,] and March 14, 2011, the claimant disclosed none of his wages earned from Advance Stores Company!,] Inc. After March 14, 2011, the claimant disclosed some of the wages earned from Advance Stores Company!,] Inc. The claimant’s benefit payments were reduced. Thereafter, the claimant failed to disclose any wages earned for a period of 6 weeks. Between calendar week ending March 19, 2011[,] and calendar week ending April 20, 2011, the claimant earned weekly wages for each and every week with the exception of week ending April 9, 2011. The claimant earned wages between $86 and $142. Thereafter, the claimant continued to file claims and disclose some wages earned at Advance Stores Company!,] Inc.
The claimant’s wife did the computer work for claimant, filing for unemployment benefits and filing weekly vouchers. At all times relevant, the claimant knew that he was applying for unemployment benefits and that he was filing weekly vouchers. At all times relevant, the claimant’s wages were paid by direct deposit to his and his wife’s joint checking account.

Appellant’s App. at 28-29 (citations omitted). Based on those facts, the ALJ concluded that Tiller had “failed to disclose or falsified a material fact” and, therefore, he was “liable to repay to the Department the total overpayment of $24,247.00, plus penalty in the sum of $10,245.75,” pursuant to Indiana Code Section 22-4-13-1.1. Id. at 29-30.

Tiller appealed the ALJ’s decision to the Board and asked that the Board consider additional evidence not before the ALJ. The Board declined to consider the additional evidence and adopted and incorporated the ALJ’s order. This appeal ensued.

DISCUSSION AND DECISION

Tiller appeals the Board’s decision against him. As our supreme court has stated:

The Indiana Unemployment Compensation Act provides that “[a]ny decision of the review board shall be conclusive and binding as to all questions of fact.” However, the statute also includes explicit provision for judicial review in language virtually identical to that found in provisions for review of other administrative agency actions. Indiana Code § 22-4-17-12® provides that when the Board’s decision is challenged as contrary to law, the reviewing court is limited to a two part inquiry into: (1) “the sufficiency of the facts found to sustain the decision”; and (2) “the sufficiency of the evidence to sustain the findings of facts.” Under this standard courts are called upon to review (1) determinations of specific or “basic” underlying facts, (2) conclusions or inferences from those facts, sometimes called “ultimate facts,” and (3) conclusions of law. Courts uniformly recognize that propositions of law, such as the construction of the statute, are for the court to determine....
Review of the Board’s findings of basic fact are subject to a “substantial evidence” standard of review. In this analysis the appellate court neither reweighs the evidence nor assesses the credibility of witnesses and considers only the evidence most favorable to the Board’s findings.
The Board’s conclusions as to ultimate facts involve an inference or deduction based on the findings of basic fact. These questions of ultimate fact are sometimes described as “questions of law.” They are, however, more appropriately characterized as mixed questions of law and fact. As such, they are typically reviewed to ensure that the Board’s inference is “reasonable” or “reasonable in light of [the Board’s] findings.”

McClain v. Review Bd. of the Ind. Dep’t of Workforce Dev., 693 N.E.2d 1314, 1316-17 (Ind.1998) (citations omitted; alterations original).

Tiller first contends that the Board erred when it considered only the “stipulated” facts before the ALJ and did not “specifically address or resolve” the following factual issues Tiller raised to the Board: (1) whether IDWD knew of Tiller’s employment “from the outset” despite his claims for unemployment benefits; (2) whether Tiller was “computer illiterate”; (3) whether “there was a reasonable explanation for [Tiller’s] wife’s sporadic disclosure of part[-]time wages”; (4) whether Tiller “was telling the truth when he testified that he would never try to withhold information from IDWD or take benefits to which he was not entitled”; and (5) whether he knew that incorrect information was reported to IDWD. Appellant’s Br. at 12-14.

The decision to accept additional evidence is a decision left to the discretion of the Board. “The rule requires a party offering additional evidence to show good cause why such evidence should be accepted and good reason why it was not introduced before the ALJ.” Smitty’s Painting, Inc. v. Review Bd. of Workforce Dev., 908 N.E.2d 244, 247 (Ind.Ct.App.2009). Here, Tiller’s argument is premised on his belief that the additional evidence, if credited to him, would have negated the ALJ’s conclusion that he knowingly failed to disclose amounts earned during Tiller’s benefit and extended benefit periods. See Ind. Code § 22-4-13-1.1.

We have no reason to assume the Board would have credited the additional evidence in the same way Tiller does. The undisputed evidence demonstrated that Tiller earned wages during his benefit and extended benefit periods and that his wife, acting on his behalf, knew of those wages but did not disclose them to IDWD. The undisputed evidence also showed that Tiller knew of his continuing obligation to report earnings to IDWD, regardless of any knowledge IDWD may have had of Tiller’s employment at the outset of the process. And it would be futile to require such disclosures if claimants could circumvent them by stating they were computer illiterate while their agents were ignorant of their actual income. The Board did not abuse its discretion when it did not consider Tiller’s additional evidence.

Tiller also asserts that the forfeiture and penalty provisions of Indiana Code Section 22-4-13-1.1 constitute a taking without due process of law. Tiller does not dispute that, pursuant to that statute, the Board imposed the proper forfeiture and penalty amount against him. Neither does Tiller suggest that those amounts are unconstitutionally excessive.

Tiller’s argument that he was denied due process before the assessment of his fines is without merit. “[T]he fundamental requirement of procedural due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Perdue v. Gargano, 964 N.E.2d 825, 832 (Ind.2012). Here, Tiller received actual notice of the ALJ’s initial hearing on IDWD’s claims, he requested and received a continuance, and he received actual notice of the continued hearing. At that hearing, he presented evidence in his defense and had the opportunity to cross-examine witnesses. He further appealed the ALJ’s decision to the Board and had the opportunity to request the Board to consider additional evidence. In short, he received all the process he was due. We affirm the Board’s decision.

Affirmed.

RILEY, J., and DARDEN, J., concur.

      . No party to this appeal has filed an "affirmative request pursuant to Administrative Rule 9(G)(1.2) to continue the exclusion from public access the identities and information confidential under the statute [Indiana Code Section 22-4-19-6] and rule.” Recker v. Review Bd., 958 N.E.2d 1136, 1138 n. 4 (Ind.2011). Thus, we will use the parties' names.

      . Tiller’s statement of facts in his appellate brief is not consistent with our standard of review, as required by Indiana Appellate Rule 46(A)(6)(b).

      . We decline Tiller’s invitation to ignore McClain and instead apply a de novo standard of review.


author: BAILEY, Judge.

text:
    Curtis L. BASS, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    No. 84A01-1110-CR-473.
    Court of Appeals of Indiana.
    July 18, 2012.
    Ordered Published Aug. 13, 2012.

      William S. Frankel, IV, Wilkinson, Goel-ler, Modesitt, Wilkinson & Drummy, LLP, Terre Haute, IN, Attorney for Appellant.
    Gregory F. Zoeller, Attorney General of Indiana, Michael Gene Worden, Deputy Attorney General, Indianapolis, IN, Attorneys for Appellee.
   OPINION

BAILEY, Judge.

Case Summary

Curtis L. Bass (“Bass”) challenges the ten-year sentence imposed upon his plea of guilty to two counts of Burglary, as Class B felonies, and also appeals a subsequent order revoking his community corrections placement and committing him to the Indiana Department of Correction (“the DOC”) for six years. We affirm.

Issues

Bass presents three issues for review:

I. Whether his advisory sentence is inappropriate;
II. Whether the trial court admitted urinalysis reports in violation of Bass’s due process rights as a probationer; and
III. Whether the revocation is supported by sufficient evidence.

Facts and Procedural History

On August 3, 2011, Bass pled guilty to two counts of Burglary. On August 19, 2011, he was given concurrent sentences of ten years, with four years suspended to formal probation and six years to be served in direct placement to community corrections or in-home detention. Subsequently, Bass was appointed a public defender to perfect an appeal of his sentence.

On September 22, 2011, the State filed a Petition to Revoke Direct Placement, alleging that Bass had, on September 8, 2011, tested positive for methamphetamine. On October 12, 2011, Bass was granted permission to file a belated notice of appeal addressing the propriety of his sentence. On October 18, 2011, the trial court conducted a hearing on the placement revocation petition. Following the hearing, Bass’s probation and placement were revoked and he was ordered to serve six years of his sentence in the DOC. On October 31, 2011, Bass filed an Amended Notice of Appeal to include a challenge to the revocation.

Discussion and Decision

I. Sentence

A person who commits a Class B felony has a sentencing range of between six and twenty years, with the advisory sentence being ten years. Ind. Code § 35-50-2-5. Bass received two advisory sentences, to be served concurrently. Four years were suspended to probation.

Under Indiana Appellate Rule 7(B), this “Court may revise a sentence authorized by statute if, after due consideration of the trial court’s decision, the Court finds that the sentence is inappropriate in light of the nature of the offense and the character of the offender.” In performing our review, we assess “the culpability of the defendant, the severity of the crime, the damage done to others, and myriad other factors that come to light in a given case.” Cardwell v. State, 895 N.E.2d 1219, 1224 (Ind.2008). A defendant “ ‘must persuade the appellate court that his or her sentence has met th[e] inappropriateness standard of review.’ ” Anglemyer v. State, 868 N.E.2d 482, 494 (Ind.2007) (quoting Childress v. State, 848 N.E.2d 1073, 1080 (Ind.2006)).

The nature of Bass’s offenses is that he burglarized two homes. From one home, that of a deployed soldier, Bass stole at least forty guns and ammunition. The stolen guns had an estimated value of over $10,000. Some of the guns were then traded for drugs, thereby placing weapons in the hands of drug dealers. The second burglary involved the violation of the home of a family friend.

As for the character of the offender, Bass pled guilty, which reflects favorably on his character. See Scheckel v. State, 655 N.E.2d 506, 511 (Ind.1995) (“[T]he fact that [the defendant] pled guilty demonstrates his acceptance of responsibility for the crime and at least partially confirms the mitigating evidence regarding his character”). However, he also received a benefit, in that two other charges were dismissed with prejudice. Prior to sentencing, Bass had sought substance abuse treatment and had cooperated with the Department of Child Services to regain custody of his children. He testified that he had, at the time of sentencing, been clean of drugs for eighteen months.

Bass has a criminal history, commencing in 1991, which includes two prior felony convictions and three misdemeanor convictions. He was on probation for a domestic battery conviction when he committed the present offenses. He has a long history of substance abuse and committed the instant crimes to fund his illegal drug use.

In light of the nature of the offenses and the character of the offender, we do not find Bass’s advisory sentences, with four years suspended, to be inappropriate.

II. Admission of Evidence-Probation Revocation

Bass contends that the trial court improperly admitted hearsay evidence in determining whether he had violated a term of his probation and placement. Over Bass’s objection, a community corree-tions case manager was permitted to testify that Bass had “tested positive” for methamphetamine. (Tr. 5.) Contemporaneously, the trial court admitted as exhibits two toxicology reports from Redwood Toxicology Laboratory indicating that Bass’s screens of September 8 and 20, 2011 had each shown “positive” results for amphetamines, specifically methamphet-amines. (St. Ex. 2-3.) Bass asserts that the documentary evidence was not substantially trustworthy so as to satisfy his due process rights as a probationer.

A probation revocation hearing is not equivalent to an adversarial criminal proceeding. Cox v. State, 706 N.E.2d 547, 550 (Ind.1999). However, the Due Process Clause applies to probation revocation proceedings, and the due process rights of a probationer include: “written notice of the claimed violations, disclosure of the evidence against him, an opportunity to be heard and present evidence, the right to confront and cross-examine witnesses, and a neutral and detached hearing body[.]” Id. at 549.

Because probation revocation procedures “are to be flexible, strict rules of evidence do not apply.” Id. The scope of the right to, confrontation as defined in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply in such proceedings. Reyes v. State, 868 N.E.2d 438, 440 n. 1 (Ind.2007). In Cox, the Court held that judges could consider hearsay “bearing some substantial indicia of reliability,” but declined to adopt a particular approach to determining that reliability. 706 N.E.2d at 551. Subsequently, in Reyes, the Indiana Supreme Court adopted a “substantial trustworthiness” test. 868 N.E.2d at 440.

In Reyes, the State had filed a notice of probation violation alleging that Reyes had violated his probation by testing positive for cocaine. Id. at 439. At a hearing, the State submitted the affidavit of the scientific director of the laboratory that conducted the urinalysis of Reyes’s sample, together with related documents. Id. The director did not testify at the hearing, and Reyes objected to the affidavits as hearsay and claimed that the admission of the affidavit without live testimony would violate his right of confrontation. Id. The trial court admitted the affidavits and revoked Reyes’s probation. Id. The probation revocation was affirmed by the Indiana Supreme Court. Id. at 443.

In reaching its decision, the Court observed that hearsay evidence may not be admitted “willy-nilly.” Id. at 440. However, although there may sometimes be no adequate alternative to live testimony, due process does not prohibit substitutes where appropriate, including affidavits, depositions, and documentary evidence. Id. (citing Gagnon v. Scarpelli, 411 U.S. 778, 782-83 n. 5, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973)). Where the State has shown that the hearsay “bears substantial guarantees of trustworthiness,” the State need not additionally show good cause for not producing live testimony. Id. at 441. The trial court must evaluate the reliability of the hearsay evidence and, ideally, the trial court should explain on the record why the hearsay is reliable and why that reliability is substantial enough to supply good cause for not producing live witnesses. Id. at 442.

Here, community corrections case manager Cierra Fox (“Fox”) testified that drug screens were administered to Bass pursuant to the rules of the in-home detention program. Fox explained the procedure implemented: Bass had urinated in a container in the presence of a correctional officer, the cup was security sealed and labeled, and it was then placed in a bag to be sent to Redwood Toxicology for testing.

According to Fox, similar tests were administered by her department and sent to Redwood Toxicology between twenty and sixty times per week. Reports were generated by Redwood Toxicology at the request of Vigo County Community Corrections; the reports were then maintained as community corrections records. Fox stated that, to the best of her knowledge, Redwood Toxicology was a certified lab; however, she lacked personal knowledge of its certification.

The trial court concluded that a “regular urinalysis report prepared by a company whose professional business it is to conduct such tests” was sufficiently trustworthy. (App. 105.) Bass argues that the trial court’s conclusion is erroneous, because the hearsay evidence in his case falls short of the level of trustworthiness of that submitted in Reyes. Bass observes that the affidavit at issue in Reyes included the opinion of the director that “Reyes would have had to use cocaine some time in the 72 hours prior to collection.” Id. at 439.

According to Bass, his case is distinguishable from that of Reyes in that (1) “no affidavits from anyone at the laboratory were offered” and (2) “the test results do not state that Bass used methamphetamine and the only sworn testimony came from someone who knows nothing about the laboratory’s procedures and reliability.” Appellant’s Brief at 12. Thus, Bass implicitly argues that the “substantial trustworthiness” test of Reyes requires an affidavit and a scientific opinion validating drug screen results. We discern no such requirement in Reyes.

Moreover, a panel of this Court has recently concluded that the record of probation revocation proceedings supported a determination of substantial trustworthiness of “a routine report demonstrating that [appellant] had tested positive for marijuana.” Williams v. State, 937 N.E.2d 930, 934 (Ind.Ct.App.2010). The urinalysis had been performed by the president of the company handling Williams’s home detention, the report contained a signed chain of custody signed by Williams and the president, and an employee of the home detention company had testified and explained the report and the date and time of sample collection. Id.; see also Holmes v. State, 923 N.E.2d 479, 484 (Ind.Ct.App.2010) (substantial trustworthiness existed for urinalysis report where the toxicologist affirmed under penalty of perjury that the sample was received under controlled conditions and processed in accordance with laboratory standard operating procedures and the scientist affirmed that the sample was handled in accordance with applicable requirements).

The absence of an affidavit from a toxicologist or laboratory employee does not render drug test results inadmissible in probation revocation proceedings where there is otherwise a substantial guarantee of trustworthiness. Here, the substantial guarantee of trustworthiness was provided by a case manager’s testimony. She was familiar with and described the urinalysis collection and chain of custody procedures; she testified that the laboratory which had generated Bass’s urinalysis report was the laboratory used to generate twenty to sixty reports per week for Vigo County Community Corrections. The reports identify the collecting and processing individuals, and contain detailed information about the testing time. Each report is accompanied by a document signed by Bass and by the collecting officer, acknowledging that the sample was sealed and secured in Bass’s presence. We conclude that the trial court did not contravene Bass’s due process rights when it admitted the State’s exhibits.

III. Sufficiency of the Evidence to Support Revocation

A reviewing court treats a petition to revoke a placement in a community corrections program the same as a petition to revoke probation. Cox v. State, 706 N.E.2d at 549. Community corrections is “a program consisting of residential and work release, electronic monitoring, day treatment, or day reporting!.]” Ind.Code § 35-38-2.6-2. A defendant is not entitled to serve a sentence in either probation or a community corrections program. Monroe v. State, 899 N.E.2d 688, 691 (Ind.Ct.App.2009). Rather, such placement is a “matter of grace” and a “conditional liberty that is a favor, not a right.” Million v. State, 646 N.E.2d 998, 1002 (Ind.Ct.App.1995).

Probation may be revoked for violation of a probation condition. Runyon v. State, 939 N.E.2d 613, 616 (Ind.2010). The State must prove the violation by a preponderance of the evidence. Id. If a defendant violates the terms of his placement in community corrections, the court may, after a hearing:

(1) Change the terms of the placement.
(2) Continue the placement.
(3) Revoke the placement and commit the person to the department of correction for the remainder of the person’s sentence.

Ind. Code § 35-38-2.6-5.

The State presented evidence that Bass twice tested positive for methamphet-amines. The State established that Bass violated a term of his probation and placement — he did not remain law-abiding and drug-free. Pursuant to Indiana Code Section 35-38-2.6-5(3), the trial court had the option of revoking Bass’s placement and committing him to the DOC to serve a portion of his sentence. The probation revocation decision is supported by sufficient evidence.

Conclusion

Bass has not persuaded us that his ten-year aggregate sentence, with four years suspended to probation, is inappropriate. Bass was not denied due process by the admission of hearsay evidence at the placement revocation hearing, and the decision to revoke Bass’s probation and order a portion of his sentence executed is supported by sufficient evidence.

Affirmed.

ROBB, C.J., and MATHIAS, J., concur.

      . Bass had not, as a condition of his in-home placement, agreed that toxicology results obtained by a probation officer would be admissible in revocation proceedings.