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FOR PUBLICATION
ATTORNEY FOR APPELLANT: MATTHEW JON McGOVERN Evansville, Indiana ATTORNEYS FOR APPELLEE: STEVE CARTER Attorney General of Indiana ELLEN H. MEILAENDER Deputy Attorney General Indianapolis, Indiana

IN THE COURT OF APPEALS OF INDIANA
JOSEPH RAY, Appellant-Defendant, vs. STATE OF INDIANA, Appellee-Plaintiff. ) ) ) ) ) ) ) ) )

No. 31A01-0407-CR-329

APPEAL FROM THE HARRISON SUPERIOR COURT The Honorable Roger D. Davis, Judge Cause No. 31D01-0201-FA-62

December 6, 2005 OPINION - FOR PUBLICATION SHARPNACK, Judge

Joseph Ray appeals his conviction for battery resulting in death as a class A felony. 1 Ray raises three issues, which we revise and restate as: I. Whether the trial court abused its discretion by denying Ray's motion for mistrial based on the prosecutor's violation of a witness separation order; Whether the trial court erred by refusing to instruct the jury on the State's failure to produce evidence; Whether the trial court abused its discretion by imposing the presumptive sentence; and Whether the sentence is inappropriate in light of the nature of the offense and the character of the offender.

II.

III.

IV.

We affirm. The relevant facts follow. Blake Barger was born on December 30, 1999, to Michelle Loney and Dennis Barger. In December 2001, Michelle's sister, Stacy Ray, and Stacy's husband, Ray, began to babysit for Blake while Michelle was at work. On the morning of January 16, 2002, Blake was acting "normal." Transcript at 444. Michelle drove Blake to Ray's house, arriving at around 8:10 a.m. Michelle and Stacy both left Ray's house at around 8:15 a.m., leaving Blake in Ray's care. Two of Ray's daughters were upstairs in bed. At just after 9:00 a.m., paramedics were dispatched to Ray's house after he called 911 and reported that Blake was having trouble breathing. When the paramedics arrived,

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Ind. Code

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