OPINION
Case Summary
Benton Barber appeals his convictions and sentence for two counts of reckless homicide and one count of failure to stop after an accident resulting in death. We conclude that the evidence is sufficient to support Barber’s convictions, that the trial court did not abuse its discretion in sentencing Barber, and that Barber’s sentence is not inappropriate in light of the nature of his offenses and his character. Furthermore, because, as this Court held in
White v. State,
Facts and Procedural History
At 11:49 a.m. on March 21, 2004, seventeen-year-old Lindsey Thompson (“Thompson”) was driving south on 1-465 in Indianapolis with a passenger, fifteen-year-old Kevin Gregg. The road was wet, and Thompson was driving in excess of the speed limit of fifty-five miles per hour when she came upon the forty-one-year-old Barber, who was driving the speed limit in the far right lane. As Thompson quickly approached Barber from behind, Barber, who was driving with his wife and thirteen-year-old son, “slammed” on his brakes. Tr. p. 57. As Thompson passed Barber in the middle lane, Gregg gave Barber “the finger.” Id. at 175. Thompson re-entеred the far right lane in front of Barber. Barber then pulled into the middle lane, accelerated to catch up with Thompson, gave Thompson and Gregg “the finger,” id. at 176, and began “weaving” his car toward Thompson, id. at 150. According to Barber’s wife, Barber then “cut [Thompson and Gregg] off, got in front of them a little bit too close. [Thompson] was like tailgating and then [Barber] hit the brake.” Id. As Thompson began to move her vehicle to the left toward the middle lane, Barber “swervefd]” to the left and came within “a couple feet” of Thompson’s vehicle. Id. at 33-34. When Thompson moved to avoid Barber, she lost control of her car, crossed the grassy median, and collided head-on with a truck pulling a horse trailer. Thompson and Gregg both died at thе *1203 scene from “blunt force trauma.” Id. at 105.
The collision occurred just north of the 56th Street exit off of 1-465. After Thompson lost control of her car, Barber “slowed down to look at the accident,” id. at 34, but then sped up to “75 to 80 mile an hour,” id. at 86. Despite having ample room on the shoulder to pull his car over, Barber continued down the interstate and exited at 38th Street. An eyewitness followed Barber off of the interstate and into the parking lot of a restaurant. The eyewitness told Barber that he should return to the scene of the accident, and Barber responded that he “had nothing to do with it.” Id. at 75. When the eyewitness said that Thompson and Gregg had been killed, Barber stated, “No, they weren’t.” Id. at 181. Barber eventually promised to return to the scene of the collisiоn, but when he reached the on-ramp for 1-465, he drove past and continued home. When he arrived home, Barber called the police and told them about the collision. The Indiana State Police officer investigating the incident indicated that it was Thompson’s act of following too closely that was the primary cause of the collision. See Ex. p. 14.
The State charged Barber with two counts of reckless homicide, a Class C felony, 2 and one count of failure to stop after an accident resulting in death, also a Class C felony. 3 After a bench trial, the trial court found Barber guilty as charged. In sentencing Barber, the trial court identified two aggravating circumstances— Barber’s criminal history and the fact that Barber was on probation when he committed the instant offenses — and three mitigating circumstances — Barber’s remorse, Barber’s “health conditions,” Tr. p. 262, and the fact that Barber had been suffering from depression. Finding that the aggravators outweigh the mitigators, the trial court imposed the maximum sentence of eight years for each offense. The court ordered the sentences for the two reckless homicide convictions to run consecutively with the sentence for failure to stop to run concurrently. Finally, the trial court suspended eight of the sixteen years and ordered four years of probation. Barber now appeals.
Discussion and Decision
On appeal, Barber argues that (1) the evidence is insufficient to support his convictions for reckless homicide and failure to stop after an accident resulting in death and (2) the trial court improperly sentenced him.
I. Sufficiency of the Evidence
Barber first argues that the evidence is insufficient to support his convictions for reckless homicide and failure to stop after an accident resulting in death. Upon a challenge to the sufficiency of evidence to support a conviction, a reviewing court does not reweigh the evidence or judge the credibility of witnesses.
McHenry v. State,
A. Reckless Homicide
Barber asserts that the evidence is insufficient to support his convictions for reckless homicide. Indiana Code § 35-42-1-5 provides that “[a] person who recklessly kills another human being commits reckless homicide, a class C felony.” “A
*1204
person engages in conduct ‘recklessly’ if he engages in the conduct in plain, conscious, and unjustifiable disregard of harm that might result and the disregard involves a substantial deviation from acceptable standards of conduct.” Ind.Code § 35-41-2-2. “Proof that an accident arose out of the inadvertence, lack of attention, forgetfulness or thoughtlessness of the driver of a vehicle, or from an error of judgment on his part, will not support a charge of reckless homicide.”
Beeman v. State,
As Barber notes, the trial court concluded that Barber’s final swerve to the left caused Thompson to lose control over her car. Barber argues that his movement to the left was “an error in judgment which would be negligence but not recklessness.” Appellant’s Br. p. 10. In support of this argument, Barber directs us to this Court’s opinion in
Whitaker v. State,
Whitaker followed two to four car lengths behind a car driven by Cox and traveled at around sixty miles per hour, which was five miles per hour above the speеd limit. The weather was clear and the pavement was dry. Cox began braking and signaled that she was going to turn left. Whitaker did not attempt to apply his brakes or otherwise evade Cox until almost the precise moment he struck her car in the rear. This propelled Cox’s car into the oncoming lane of traffic, where it was run over by a dump truck. Cox died instantly, and Whitaker was convicted of reckless homicide.
Whitaker appealed, arguing that the evidence was insufficient to support his conviction. Apparently relying on Whitaker’s testimony to the effect that he failed to notice that Cox was stopped until it was far too late for him to stop or avoid her car, the State posited “that the fact Whitaker failed to take any action to stop or evade Cox’s car after she applied her brakes and signaled to turn is, in itself, evidence of his recklessness.”
Id.
at 428. We rejected this argument, noting that this “would be evidence of inadvertence or lack of attention; in other words, negligence, not recklessness.”
Id.
(citing
Beeman,
The instant case is distinguishable from Whitaker. First, there is evidence that Barber’s involvement in the collision did not arise from inadvertence or lack of attention. Eyewitness Gregory Robinson testified that as Thompson began to move her vehicle to the left toward the middle lane, Barber “swerve[d]” to the left and came within “a couple feet” of Thompson’s vehicle. Tr. p. 33-34. Barber testified that he simply intended to move into the center lane to allow Thompson to pass him, but the trier of fact, in this ease the trial сourt judge, did not believe Barber, and it is not the province of this Court to reweigh the evidence or to judge the credibility of witnesses.
Second, the evidence supports a finding that Barber’s conduct did not result from a mere error in judgment, or even a “gross error in judgment,” which, as we said in
*1205
Whitaker,
would constitute only negligence, not recklessness.
We acknowledge the fact that Thompson’s own aggressive driving likely contributed to her and Gregg’s deaths. Indeed, the investigating officer listed Thompson’s following too closely as the primary cause of the accident. However, a defendant’s conduct need not be the sole cause of a death in order to support a conviction for reckless homicide. The State must only prove that the defendant’s conduct was
a
proximate cause of the victim’s death.
See Abney v. State,
Finally, we note Barber’s contention that his conduct was not reckless because he did not leave his lane the last time he swerved at Thompson or violate any traffic laws. Barber has failed to cite any authority for the proposition that a driver cannot be convicted of reckless homicide unless he leaves his lane or violates some specific traffic law, and we can find none. Surrounding circumstances can make otherwise lawful conduct reckless. For example, moving from side to side within one’s own lane may not be reckless on a dry road at thirty miles an hour with no cars in the vicinity, but such movement may be reckless on a wet road at sixty-five miles per hour with another car within a few feet, as happened here.
See Whitaker,
B. Failure to Stop
Barber also maintains that the evidence is insufficient to support his conviction for failure to stop after an accident resulting in death. Indiana Code § 9-26-1-1 provides that a driver involved in an accident resulting in injury or death must do the following: (1) stop the vehicle immediately; (2) remain at the scene; (3) give his or her name, address, and vehicle identification number; (4) exhibit his or her driver’s license upon request; (5) render reasonable assistance to persons injured in the accident; (6) immediately notify the appropriate law enforcement authority; and (7) forward a written report of the accident to the state police department within ten days of the accident. “Inasmuch as the elements are listed in the conjunctive, a person commits a criminal offense in failing to adhere to
*1206
any one of the requirements.”
Nield v. State,
First, Barber argues that he was not “criminally responsible” for the collision and therefore should not be guilty of failing to stop. Amended Appellant’s Br. p. 12. However, Indiana Code § 9-26-1-1 does not require that a driver be “criminally responsible,” or responsible for the accident at all, before the duty to stop аnd remain at the scene arises. A driver need only be “involved” in the accident. See Ind.Code § 9-26-1-1.
Alternatively, Barber contends that we should reverse his conviction for failure to stop after an accident resulting in death “because his actions substantially complied with the intent of the statute.” Id. He notes that he pulled off of 1-465 at the first possible exit and maintains that the only reason he did not get back on 1-465 was that “traffic was already backed up.” Id. He also called the police as soon as he arrived at his home. However, the evidence tending to prove that he did not comply with the statute is substantial.
One witness testified that after Thompson lost control of her car, Barber initially slowеd down and observed the accident, but then, instead of pulling over onto the shoulder, Barber sped up and continued down the interstate. Multiple witnesses testified that there was ample room on the side of the road for Barber to pull his vehicle over and park. Indeed, a semi driver who witnessed the accident pulled his truck onto the shoulder and ran across the highway to Thompson’s car. Then, when one of the witnesses confronted Barber, Barber stated that he “had nothing to do with [the collision].” Tr. p. 75. When the witness told Barber that Thompson and Gregg were killed, Barber responded, “No, they weren’t[.]” Id. at 181. Finally, even though Barber said that he would return to the scene, he passed the on-ramp to 1-465 and continued home. This evidence is sufficient to support the trial court’s judgment. To the extent that Barber claims that he would have returned to the scene of the accident but for the traffic backing up, this is simply a request for us to reweigh the evidence, which we will not do.
II. Sentencing
In addition to challenging his convictions, Barber also contends that the trial court improperly sentenced him. 4 In sentencing Barber, the trial court identified two aggravating circumstances, namely, Barber’s criminal history and the fact that Barber was on probation at the time he committed the instant offenses. The trial court also found three mitigating circumstances: Barber’s remorse, Barber’s “health conditions,” Tr. p. 262, аnd the fact that Barber had been suffering from depression. Finding that the aggravating circumstances outweigh the mitigating circumstances, the trial court imposed the maximum sentence of eight years for each conviction. The court ordered the sentences for the two reckless homicide convictions to run consecutively with the sentence for failure to stop to run concurrently. The trial court also suspended eight of the sixteen years and ordered four years of probation.
*1207 Barber argues (1). that the trial court abused its discretion in imposing the sentence, (2) that his sentence is inappropriate in light of the nature of his offenses and his character, and (3) that the trial court violated Indiana Code § 35-50-2-1.3 in imposing his sentence.
A. Abuse of Discretion
Barber argues that the trial court assigned too much aggravating weight to his criminal history. Sentencing is generally left to the discretion of the trial court, and we will only reverse a trial court’s sentencing decision based on an abuse of that discretion.
Losch v. State,
Barber’s argument is not completely without merit. In the first twenty years following his 1982 conviction for driving with a suspended license at the age of nineteen, Barber was arrested several times but never convicted of any crime. However, Barber’s criminal activity has been more brisk in the last few years. He was convicted of both battery and theft less than a year before committing the instant offenses. His battery conviction, in particular, is related to the instant offense, as it required proof of “rude, insolent, or angry” behavior. See Ind.Code § 35-42-2-1. Reckless homicide is not always a crime of anger, but in this case it is. Though Barber’s criminal history is not particularly lengthy or grave, it is at least in part recent and similar to the instant offenses.
We also note that in weighing Barber’s criminal history, the trial court apparently relied in part on several arrests that did not lead to convictions. It stated that Barber had six previous “anger related offenses.” Tr. p. 262. But a look at Barber’s presentence investigation report reveals that while Barber had been arrested for six “anger related offenses,” he was only convicted of one: battery.
5
“A record of arrest, without more, does not establish the historical fact that a defendant committed a criminal offense and may not be properly considered as evidence of criminal history.”
Cotto v. State,
Furthermore, Barber does not challenge — indeed, does not even mention — the other aggravating circumstance found by the trial court, i.e., the fact that Barber was on probation at the time of the
*1208
instant offenses. “Probation stands on its own as an aggravator. While a criminal history aggravates a subsequent crime because of recidivism, probation further aggravates a subsequent crime because the defendant was still serving a court-imposed sentence.”
Ryle v. State,
B. Inappropriateness
Barber also argues that his eight-year sentence to be followed by four years of probation is inappropriate in light of the nature of his offenses and his character. Indiana Rule of Appellate Procedure 7(B) states: “The 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.” “Although appellate review of sentences must give due consideration to the trial court’s sentence because of the special expertise of the trial bench in making sentencing decisions, Appellate Rule 7(B) is an authorization to revise sentences when certain broad conditions are satisfied.”
Purvis v. State,
Regarding the nature of Barber’s offenses, we cannot say that the deaths of Thompson and Gregg justify the maximum sentences imposеd by the trial court, as those deaths were elements of the crimes of which Barber was convicted. However, unlike many reckless homicide convictions, Barber’s convictions are based on a course of conscious, purposeful, and angry conduct directed at his eventual victims. This is not to say that Barber intended harm to his victims any more than any other person convicted of reckless homicide, but his awareness of the risk created by his conduct was much more acute given that the collision was merely the culmination of a prolonged, dangerous dispute between Barber and Thompson. Barber’s sentence is not inappropriate in light of the nature of his оffenses.
As for Barber’s character, we look again to Barber’s prior convictions, his lengthy arrest record, and the fact that he was on probation at the time of the instant offenses. Even after being arrested nine times and convicted of three crimes in the years preceding the instant offenses, Barber was not deterred from criminal activity. Indeed, Barber was still on probation based on one of his previous convictions when he committed the instant offenses. Nothing about Barber’s character leads us to find that his sentence in this cause is inappropriate.
*1209 C. Indiana Code § 35-50-2-1.3
Finally, Barber asserts that the trial court erred in ordering the maximum eight-year sentences for the two Class C felоny reckless homicide convictions to run consecutively. He argues that in doing so, the trial court violated Indiana Code § 35-50-2-1.3, which provides:
(a) For purposes of sections 3 through 7 of this chapter, “advisory sentence” means a guideline sentence that the court may voluntarily consider as the midpoint between the maximum sentence and the minimum sentence.
(b) Except as provided in subsection (c), a court is not required to use an advisory sentence.
(c) In imposing:
(1) consecutive sentences in accordance with IC 35-50-1-2;
(2) an additional fixed term to an habitual offender under section 8 of this chapter; or
(3) an additional fixed term to a repeat sexual offender under section 14 of this chapter;
a court is required to use the apprоpriate advisory sentence in imposing a consecutive sentence or an additional fixed term. However, the court is not required to use the advisory sentence in imposing the sentence for the underlying offense.
Barber contends that if the trial court wanted to impose consecutive sentences for the two reckless homicide convictions, it should not have exceeded the advisory sentence of four years for each of the individual sentences.
We first note that while Barber was sentenced in 2006, he committed his offenses on March 21, 2004, more than a year before Indiana Code § 35-50-2-1.3 came into effect on April 25, 2005.
See
P.L. 71-2005, § 5. Courts generally must sentence defendants undеr the sentencing statutes in effect at the time the defendant committed the offense.
Jacobs v. State,
Two panels of this Court have addressed this issue and reached different results. In
White v. State,
Indiana Code § 35-50-2-1.3 instructs: “In imposing consecutive sentences in accordance with IC 35-50-l-2[,] a court is required to use the appropriate advisory sentence in imposing a consecutive sentence[.]” We conclude that when the General Assembly wrote “appropriate advisory sentence,” it was referring to the total рenalty for “an episode of criminal conduct,” which, except for crimes of violence, is not to exceed “the advisory sentence for a felony which is one (1) class of felony higher than the most *1210 serious of the felonies for which the person has been convicted.” See Ind. Code § 35-50-l-2(c). In other words, the advisory sentence for a felony which is one class of felony higher than the most serious of the felonies for which the person has been convicted is the “appropriate advisory sentence” for an episode of non-violent criminal conduct. Indiana Code § 35-50-1-2 in no other way limits the ability of a trial court to impose consecutive sentences. In turn, Indiana Code § 35-50-2-1.3, which references Indiana Code § 35-50-1-2, imposes no additional restrictions on the ability of trial courts to impose consecutive sentences, and therefore, is not ameliorative.
Recently, another panel of this Court expressly disagreed with
White
in
Robertson v. State,
Our concern with the analysis in White is that (1) it renders the language in IC 35-50-2-1.3 surplusage since the consecutive sentencing statute, IC 35-50-1-2, clearly limits the total of the consecutive sentences for non-violent offenses to the advisory sentence for the next highest class of felony; and (2) nothing in the advisory sentencing statute, IC 35-50-2-1.3, limits its application to non-violent offenses. Although the White decision argues that the legislature could not have intended the results the statute is capable of generating, the argument is moot “ ‘[w]hen the language of the statute is clear and unambiguous.’ ” White,849 N.E.2d at 742-43 (quoting Woodward v. State,798 N.E.2d 260 , 262 (Ind. Ct.App.2003)), trans. denied. We hold that the advisory sentencing statute, IC 35-50-2-1.3, is clear and unambiguous and imposes a separate and distinct limitation on a trial court’s ability to deviate from the advisory sentence for any sentence running consecutively. We further hold that the ameliorative nature of the statute must be extended to those individuals who committed an offense before the statute was in effect and were sentenced thereafter. See Richards v. State,681 N.E.2d 208 , 213 (Ind.1997).
Id. at 624-25. The Court remanded the case to the trial court with instructions to impose the advisory sentence of one-and-a-half years for Robertson’s Class D felony theft conviction. Id. at 625. The State has petitioned for transfer in Robertson.
We will adhere to the White panel’s interpretation of Indiana Code § 35-50-2-1.3. 8 Wе write here to add two observations that support that interpretation.
First, we do not agree with the
Robertson
panel that the
White
panel’s interpretation of Indiana Code § 35-50-2-1.3
*1211
renders the language of that statute “surplusage.”
Id.
at 624. The
White
panel
did
hold that Indiana Code § 35-50-2-1.3 “imposes no additional restrictions on the ability of trial courts to impose consecutive sentences” beyond those restrictions imposed by Indiana Code § 35-50-1-2.
In the wake of
Blakely v. Washington,
We acknowledge that nothing in Indiana Code § 35-50-2-1.3(c) limits its application to any specific subsections of Indiana Code §§ 35-50-1-2, 35-50-2-8, and 35-50-2-14, but each of those statutes only includes one subsection that refers to advisory sentences. Indiana Code § 35-50-2-8(h) provides:
The court shall sentence a person found to be a habitual offender to an additional fixed term that is not less than the advisory sentence for the underlying offense nor more than three (3) times the advisory sentence for the underlying offense. However, the additional sentence may not exceed thirty (30) years.
Indiana Code § 35-50-2-14(e) provides: “The court may sentence a person found to be a repeat sexual offender to an additional fixed term that is the advisory sentence for the underlying offense. However, the additional sentence may not exceed ten (10) years.” Likewise, Indiana Code § 35-50-l-2(c) provides, in pertinent part:
[EJxcept for crimes of violence, the total of the consecutive terms of imprisonment to which the defendant is sentenced for felony convictions arising out of an episode of criminal conduct shall not exceed the advisory sentence for a felony which is one (1) class of felony higher than the most serious of the felonies for which the person has been convicted.
We cannot ignore the message the legislature sent when it wrote Indiana Code § 35-50-2-1.3: trial courts are required to use advisory sentences only in those situations where another statute specifically requires it. Only Indiana Code §§ 35-50-1-2(c), 35-50-2-8(h), and 35-50-2-14(e) require the use of advisory sentences.
We make another observation regarding the
Robertson
panel’s interpretation of Indiana Code § 35-50-2-1.3. The Court stated that “the trial court was not re-
*1212
strieted from deviating from the advisory-on the underlying offense, namely, [Robertson’s] prior conviction in Hendricks County for possession of methamphetamine.
See
IC 35-50-2-1.3(c)(1).”
The last sentence of Indiana Code § 35-50-2-1.3(c), i.e., “the court is not required to use the advisory sentence in imposing the sentence for the underlying offense,” is confusing. “Underlying offense” is a legal term of art that only applies to repeat offender sentencing enhancements, such as subsections (c)(2) and (c)(3), which deal with habitual offenders and repeat sexual offenders, respectively. When dealing strictly with consecutive sentences for distinct criminal violations, as under subsection (c)(1), there is no “underlying offense.” Therefore, the last sentence of the statute can only apply to subsections (c)(2) and (c)(3).
The trial court did not err in imposing consecutive maximum sentences for Barber’s two reckless homicide convictions.
Conclusion
The evidence is sufficient to support Barber’s convictions for reckless homicide and failure to stop after an accident resulting in death. Furthermore, the trial court did not abuse its discretion in sentencing Barber, and Barber’s sentence is not inappropriate in light of the nature of his offenses and his character. Finally, the trial court did not err in imposing consecutive maximum sentences for Barber’s two reckless homicide convictions. Therefore, we affirm the judgment of the trial court.
Affirmed.
Notes
. We heard oral argument in this cause on March 23, 2007, at Valparaiso University School of Law. We thank counsel for traveling to Valparaiso from Indianapolis and for their excellent advocacy, and we again extend our gratitude to the students, faculty, and staff of the law school for hosting the event.
. Ind.Code § 35-42-1-5.
. Ind.Code § 9-26-1-8(a)(2).
. Because Barber committed his offenses beforе the 2005 amendments to the sentencing statutes, we operate under the former presumptive scheme.
See Walsman v. State,
. The other five "anger related offenses” for which Barber has been arrested are domestic battery, resisting law enforcement, and three times for disorderly conduct.
. We reiterate that that the trial court ordered Barber’s sentence for failure to stop after an accident resulting in death to run concurrently with his consecutive sentences for reckless homicide and suspended eight years of the sixteen-year sentence, with four years to be served on probation.
. Obviously, because we held that the statute is not ameliorative, our analysis would not have changed even if it did "apply” to White’s sentencing.
. This author wrote White.